CACI No. 433. Affirmative Defense - Causation: Intentional Tort/Criminal Act as Superseding Cause
Judicial Council of California Civil Jury Instructions (2023 edition)
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433.Affirmative Defense - Causation: Intentional Tort/Criminal Act
as Superseding Cause
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm because of the later [criminal/
intentional] conduct of [insert name of third party]. [Name of defendant] is
not responsible for [name of plaintiff]’s harm if [name of defendant] proves
[both/all] of the following:
[1. That [name of third party] committed [an intentional/a criminal]
act;]]
2. That [name of third party]’s [intentional/criminal] conduct
happened after the conduct of [name of defendant]; and
3. That [name of defendant] did not know and could not have
reasonably foreseen that another person would be likely to take
advantage of the situation created by [name of defendant]’s
conduct to commit this type of act.
New September 2003; Revised June 2014
Directions for Use
Give the optional first element if there is a dispute of fact as to whether the third
party actually committed the criminal or intentional act that is alleged to constitute
superseding cause. The element may be modified to describe the alleged act more
particularly if desired.
Sources and Authority
• “California has adopted the modern view embodied in section 448 of the
Restatement Second of Torts: ‘The act of a third person in committing an
intentional tort or crime is a superseding cause of harm to another resulting
therefrom, although the actor’s negligent conduct created a situation which
afforded an opportunity to the third person to commit such a tort or crime,
unless the actor at the time of his negligent conduct realized or should have
realized the likelihood that such a situation might be created, and that a third
person might avail himself of the opportunity to commit such a tort or crime.’
Present California decisions establish that a criminal act will be deemed a
superseding cause unless it involves a particular and foreseeable hazard inflicted
upon a member of a foreseeable class.” (Kane v. Hartford Accident and
Indemnity Co. (1979) 98 Cal.App.3d 350, 360 [159 Cal.Rptr. 446].)
• “[A]n intervening act does not amount to a ‘superseding cause’ relieving the
negligent defendant of liability if it was reasonably foreseeable: ‘[An] actor may
be liable if his negligence is a substantial factor in causing an injury, and he is
not relieved of liability because of the intervening act of a third person if such
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act was reasonably foreseeable at the time of his negligent conduct.’ Moreover,
under section 449 of the Restatement Second of Torts that foreseeability may
arise directly from the risk created by the original act of negligence: ‘If the
likelihood that a third person may act in a particular manner is the hazard or one
of the hazards which makes the actor negligent, such an act whether innocent,
negligent, intentionally tortious, or criminal does not prevent the actor from
being liable for harm caused thereby.’ ” (Landeros v. Flood (1976) 17 Cal.3d
399, 411 [131 Cal.Rptr. 69, 551 P.2d 389], internal citations omitted.)
• “The trial court’s modification of CACI No. 433 appears to have been intended
to apply the principle of negligence law that unforeseeable criminal conduct cuts
off a tortfeasor’s liability. CACI No. 433 sets forth the heightened foreseeability
that is required before an intervening criminal act will relieve a defendant of
liability for negligence. A third party’s criminal conduct becomes actionable if
the negligent tortfeasor has created a situation that facilitated the crime.” (Collins
v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1508 [155 Cal.Rptr.3d 137],
internal citations omitted.)
• “Criminal conduct which causes injury will ordinarily be deemed the proximate
cause of an injury, superseding any prior negligence which might otherwise be
deemed a contributing cause.” (Koepke v. Loo (1993) 18 Cal.App.4th 1444, 1449
[23 Cal.Rptr.2d 34].)
• “The common law rule that an intervening criminal act is, by its very nature, a
superseding cause has lost its universal application and its dogmatic rigidity.”
(Kane, supra, 98 Cal.App.3d at p. 360.)
• “CACI No. 433 is neither a concurrent causation nor a comparative fault
instruction allowing the jury to apportion relative degrees of fault. CACI No.
433, a superseding cause instruction, applies when a third party takes advantage
of or utilizes a situation created by the tortfeasor’s conduct to engage in
intentional or criminal conduct inflicting harm on another person.” (Crouch v.
Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1023
[253 Cal.Rptr.3d 1].)
• “CACI No. 433 erroneously allowed [defendant] a complete defense based on a
heightened standard of foreseeability inapplicable to plaintiffs’ design defect
claims. Specifically, CACI No. 433 allowed [defendant] to secure a defense
verdict by showing it ‘could not have reasonably foreseen that another person
would be likely to take advantage of the situation created by . . . [defendant]’s
conduct to commit this type of act.’ However, [defendant] did not create a
situation that [third party] took advantage of in order to commit a crime. [Third
party] did not throw the concrete at [decedent]’s truck because he perceived a
defective angle or composition of the windshield. CACI No. 433 erroneously
introduced a test that does not make sense in this products liability case.”
(Collins, supra, 214 Cal.App.4th at p. 1509.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1365, 1367
CACI No. 433 NEGLIGENCE
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California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.17
1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.301, 165.303,
165.322 (Matthew Bender)
NEGLIGENCE CACI No. 433
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