§13.3 Intervening and Superseding Causes
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The Case : Potter v. Ford Motor Co., 213 S.W.3d 264 (Tenn. Ct. App. 2006).
The Basic Facts: Plaintiff brought products liability action against the manufacturer of her vehicle.
The Bottom Line:
- "The intervening cause doctrine operates to relieve a negligent actor from liability 'when a new, independent and unforeseen cause intervenes to produce a result that the negligent actor could not have reasonably foreseen.' Rains v.Bend of the River, 124 S.W.3d 580, 593 (Tenn. Ct. App. 2003); White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998). 'The doctrine applies only when the intervening act (1) was sufficient by itself to cause the injury, (2) was not reasonably foreseeable to the negligent actor, and (3) was not a normal response to the negligent actor's conduct.' Rains, 124 S.W.3d at 593; Waste Mgmt., Inc. of Tenn. v. South Central Bell Tel. Co., 15 S.W.3d 425, 432 (Tenn. Ct. App. 1997); Elosiebo v. State, No. E2003-02941-COA-R3-CV, 2004 WL 2709206 at *2 [(Tenn. Ct. App. Nov. 29, 2004)]. When the above elements are met, the intervening act is said to be a superseding cause, which 'breaks the chain of proximate causation.' White, 975 S.W.2d at 529; Haynes v. Hamilton Co., 883 S.W.2d 606, 612 (Tenn. 1994); McClenahan v. Cooley, [806 S.W.2d 767, 775 (Tenn. 1991)]. The conduct of the third party or other force supplants the defendant's conduct as the legal cause of the plaintiff's injuries. Thus, the intervening, superseding cause relieves the defendant of liability to the plaintiff." 213 S.W.3d at 273.
- "The following comment from the Supreme Court illustrates the interconnection between the concepts of intervening cause and proximate or legal cause, and the significance of foreseeability to both concepts:
With respect to superseding intervening causes that might break the chain of proximate causation, the rule is established that it is not necessary that tortfeasors or concurrent forces act in concert, or that there be a joint operation or a union of act or intent, in order for the negligence of each to be regarded as the proximate cause of the injuries, thereby rendering all tortfeasors liable. See Cartwright v. Graves, 184 S.W.2d 373, 381 (Tenn. 1944)]; Whitehurst v. Howell, [98 S.W.2d 1071, 1081 (Tenn. Ct. App. 1936)]; Morris v. Bolling, [218 S.W.2d 754, 758 (Tenn. Ct. App. 1949)]. There is no requirement that a cause, to be regarded as the proximate cause of an injury, be the sole cause, the last act, or the one nearest to the injury, provided it is a substantial factor in producing the end result. Lancaster, 390 S.W.2d at 221; Kroger Co., 387 S.W.2d at 626; Roberts at 871. An intervening act, which is a normal response created by negligence, is not a superseding, intervening cause so as to relieve the original wrongdoer of liability, provided the intervening act could have reasonably been foreseen and the conduct was a substantial factor in bringing about the harm. Solomon v. Hall, [767 S.W.2d 158, 161 (Tenn. Ct. App. 1988)]. 'An intervening act will not exculpate the original wrongdoer unless it appears that the negligent intervening act could not have been reasonably anticipated.' Evridge v. AmericanHonda Motor Co., [685 S.W.2d 632, 635 (Tenn. 1985)]; Ford Motor Co. v. Wagoner, 192 S.W.2d 840, 843 (Tenn. 1946)]. See also [Restatement (Second) of Torts], Section 447 (1965). 'It is only where misconduct was to be anticipated, and taking the risk of it was unreasonable, that liability will be imposed for consequences to which such intervening acts contributed.' Prosser, supra. Just as in the case of proximate causation, the question of superseding intervening cause is a matter peculiarly for the jury because of foreseeability considerations. See Brookins at 550; Evridge at 635; Young v. Reliance Electric Co., [584 S.W.2d 663, 669 (Tenn. Ct. App. 1979)]. McClenahan, 806 S.W.2d at 775-76."Id . at 273-74.
- "There are several reasons why the intervening cause doctrine is inapplicable where the alleged intervening, superseding cause is the plaintiff's own negligent conduct. We initially note that Ford has not cited any Tennessee case holding the plaintiff's own negligent conduct to be an intervening, superseding cause, thereby cutting off his or her recovery, nor has our research revealed such a case. Although our courts have recognized that 'suicide may constitute an intervening cause if it is a willful, calculated and deliberate act of one who has the power of choice,' White, 975 S.W.2d at 530; Rains, 124 S.W.3d at 593 and cases therein cited, we are presented here with a plaintiff's negligent, not intentional, conduct." Id. at 274.
- "In Dunnivant v. Nafe, 334 S.W.2d 717 (Tenn. 1960), the Tennessee Supreme Court adopted the following definition of 'superseding cause' from the [Restatement (Second) of Torts], § 440: 'A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.' Id. at 719 (emphasis added). We are of the opinion that the [Restatement (Second) of Torts] §440's definition of superseding cause as involving a 'third person or other force' is not met when the alleged superseding cause is the conduct of either the initial defendant or that of the plaintiff. In the present case, there is no allegation of a third tortfeasor or other malfeasant force - only the negligence of the Plaintiff and the Defendant Ford, which are properly and adequately compared under our comparative negligence system, with no need for the intervening cause doctrine." Id. at 274-75.
- "In Perez v. McConkey, our Supreme Court, abolishing the doctrine of implied assumption of risk, noted that 'it would be ironic indeed if, after abolishing the all-or-nothing proposition of contributory negligence in McIntyre [v. Ballentine, 833 .W.2d 52], we were to reinstate it here using the vehicle of assumption of risk.' Perez, 872 S.W.2d 897, 905 (Tenn. 1994). We are of the opinion that applying the bar of intervening, superseding cause to a plaintiff's negligent conduct would mark a return to the 'all-or nothing proposition' rejected in McConkey. It is simply an unnecessary analysis when a much more refined and better legal tool - comparative negligence and comparative fault - is now available FN4.
FN4 For a discussion of the difference between these two concepts, see Turner v. Jordan, 957 S.W.2d 815, 821 (Tenn. 1997) and Owens v. Truckstops of America, 915 S.W.2d 420, 425 n.7 (Tenn. 1996)."Id . at 275.
- "Ford argues on appeal that the circumstances of this case are so unusual (Ford characterizes them as "bizarre") that they were entirely unforeseeable. Ford asserts that it could not be expected to foresee that a seriously overweight plaintiff would be driving in the rain on badly worn tires, lose control of the car and collide backwards into a tree at roughly 30 miles an hour. However, as the McClenahan Court stated,
The foreseeability requirement is not so strict as to require the tortfeasor to foresee the exact manner in which the injury takes place, provided it is determined that the tortfeasor could foresee, or through the exercise of reasonable diligence should have foreseen, the general manner in which the injury or loss occurred. Roberts at 871; Wyatt at 280-81. "The fact that an accident may be freakish does not per se make it unpredictable or unforeseen." City of Elizabethton v. Sluder, 534 S.W.2d 115, 117 (Tenn.1976). It is sufficient that harm in the abstract could reasonably be foreseen. Shell Oil Co. v. Blanks, 46 Tenn.App. 539, 330 S.W.2d 569, 572 (1959).McClenahan , 806 S.W.2d at 775; accord Bara v. Clarksville Mem. Health Systems, Inc., 104 S.W.3d 1, 12 (Tenn. Ct. App. 2002)." Id. at 275-76.
- "We do not agree that the harm in the abstract - a rear-end collision resulting in a change of velocity of approximately 30 m.p.h.- was unforeseeable to Ford when it was designing and manufacturing its Ford Escort seats. See Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 519 (Tenn. 1973) (holding 'collisions are clearly foreseeable by the manufacturer [who] therefore has a duty to minimize the harm of inevitable accidents by utilizing reasonably safe design'). But more important and relevant than our view on this issue is the fact that the trial court fully and accurately instructed the jury on the issues of proximate cause and foreseeability, and the jury rejected Ford's position. The trial court's refusal to instruct the jury on intervening cause did not take away its determination of foreseeability, as Ford argues." Id. at 276.
- "Further, the jury was instructed that Ford could only be held liable for Ms. Potter's enhanced injuries, those she suffered as a result of her collision with the back seat due to the collapse of the driver's seat, as follows:
Ford Motor Company is not responsible for any injuries except those legally caused by Ford Motor Company. Ford Motor Company can only be responsible for any enhanced injuries.Id .
Enhanced injuries refers to the plaintiff's injuries, if any, that were caused by defects, if any, in the 1997 Ford Escort, or because of Ford's negligence, if any, over and above those injuries that probably would have occurred as a result of the accident absent any defect or negligence caused by Ford."
- "The jury's verdict thus reflected only the damages it found to have been caused by the defective seat back. The intervening cause doctrine applies only when the intervening act "was sufficient by itself to cause the injury." Rains, 124 S.W.3d at 593; Waste Mgmt., Inc. of Tenn. v. South Central Bell Tel. Co., 15 S.W.3d 425, 432 (Tenn. Ct. App. 1997). In following the above instruction, the jury by necessity determined that Ms. Potter's negligent act in losing control of the car was not sufficient by itself to cause the injuries for which she sued Ford. Therefore, though we have held it was not error for the trial court to have found the intervening cause doctrine inapplicable under these circumstances, even if it was error, it was clearly harmless in light of the properly-approved jury verdict." Id.
Recent Cases: Howell ex rel. Williams v. Turner , No. M2008-01588-COA-R3-CV, 2009 WL 1422982 (Tenn. Ct. App. May 21, 2009) (holding issue of intervening and superseding cause was properly submitted to the jury where there was a dispute as to the material evidence on that issue); Turner v. City of Winchester, No. M2008-00401-COA-R3-CV, 2009 WL 1037942 (Tenn. Ct. App. Apr. 7, 2009) (holding plaintiff's action in staying in vehicle with hostile and reckless boyfriend after four opportunities to exit safely was an intervening and superseding cause relieving law enforcement officers of any potential liability for ordering plaintiff to get in the vehicle with her boyfriend); Akladyous v. GTech Corp., No. M2008-00665-COA-R3-CV, 2009 WL 856667 (Tenn. Ct. App. Mar. 31, 2009) (reversing summary judgment finding genuine issues of material fact regarding a potential intervening and superseding cause); White v. Premier Medical Group, 254 S.W.3d 411 (Tenn. Ct. App. 2007) (holding record contained material evidence sufficient to support jury verdict for doctor in medical malpractice action based upon the superseding cause defense).