The family of a mental patient who was killed while on furlough from a Veteran’s Administration (VA) hospital sued the United States government under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (FTCA). The claim was for medical malpractice. They now appeal the take nothing judgment of the district court. We affirm the judgment.
Prior Proceedings
George Urbach, Sr. was involuntarily committed to a Veterans’ Administration hospital in Waco, Texas, in December 1963 and diagnosed as a manic depressive. During his institutionalization, Urbach was periodically furloughed.
In February 1982, Urbach was given a furlough from the VA hospital. With the knowledge and assistance of the hospital staff, he planned a trip to Mexico City. While in Mexico, Urbach apparently acci-dently set fire to his motel room. He was arrested by Mexican officials and ultimately incarcerated in a Mexican prison. The district court found that while serving his *831 sentence, Urbach was beaten to death by several unidentified fellow prisoners. 1
The widow and adult children of George Urbach, Sr., sued the United States under the FTCA claiming medical malpractice resulted in Urbach’s wrongful death. The district court in a bench trial found that allowing Urbach to travel to Mexico was a negligent action by the United States (acting through the Veteran’s Administration). The district court nevertheless entered judgment for the government, holding that the survivors failed to prove a necessary element of liability under Texas law, causation. The finding of negligence is not challenged by the government on appeal. The issue before us is whether the negligence, under the law, was a cause of the death.
The Causation Requirement
Because the negligent act occurred in Texas, Texas law governs the issue of liability. 28 U.S.C. §§ 1346(b), 2674;
Richards v. United States,
Causation is a question of fact. In a bench trial it is reviewed under the clearly erroneous standard.
Sebree v. United States,
There are two elements of proximate cause under Texas law: foreseeability and cause in fact.
City of Gladewater v. Pike,
A. Foreseeability
“Foreseeability requires that the actor, as a person of ordinary intelligence, would have anticipated the danger that his negligent act created for others____ Foreseeability does not require that a person anticipate the precise manner in which injury will occur once a negligent situation that he has created exists.”
City of Gladewater,
Evidence was presented by the survivors that Urbach had been previously furloughed, had committed minor crimes, and was subsequently re-committed to the Waco VA hospital, which he considered “home.” The United States presented testimony, however, that he had previously been furloughed to travel to New York and California, where he checked into “a very nice hotel and [had] a good time” and then returned to the VA without incident. Fur *832 thermore, Urbach seemed rational about the trip to Mexico and had approached it in a business-like manner. The staff feared that if they had forbidden the trip or insisted that Urbach not travel to Mexico, he would have gone anyway — without the benefit of any planning or adequate funds. Once furloughed, he might go anywhere he pleased.
Thus, while the YA was found to have been negligent in allowing Urbach a furlough for the purpose of traveling to Mexico, the district court decided it could not have foreseen that he would die from being beaten by fellow prisoners in a Mexican jail. While Urbach had been in trouble on furlough before, there was no evidence presented that he had been involved in a violent altercation injurious to himself. 2 Urbach had been “classified as a fire hazard”; he smoked in bed and was careless. But he gave no indication of being an intentional fire-starter. The most the VA might have foreseen was that he could accidently start a fire which would injure himself. The prison beating was far beyond the bounds of any previous experience of Ur-bach’s. 3 The district court found that the prisoners’ actions were such that the VA could not have anticipated them.
Two Texas cases involving intervening acts by third parties support the conclusion that Urbach’s death was not foreseeable. In
Wolf v. Friedman Steel Sales, Inc.,
Similarly, in
Taylor v. Southwestern Bell Tel. Co.,
In those cases in which liability has been imposed despite the acts of third parties, there has been evidence that the defendant knew of the potential risk created by the third party’s acts, hence the resulting tort was foreseeable. For example, in
Northwest Mall, Inc. v. Lubri-Lon Int'l, Inc.,
In both of these cases, the torts complained of were foreseeable by the defendants because of prior experiences. Hence the third parties’ intervening actions did not break the chain of causation, or become superseding. There is no evidence to suggest that the VA should have been aware of the danger to Urbach in this case. The trial court’s finding that the acts of Ur-bach’s cellmates were not foreseeable was not clearly erroneous.
B. Cause in Fact
As is customary in federal district courts and state courts in Texas and elsewhere, a finding of lack of foreseeability is usually not treated as the end of the case. The issue of cause in fact is also considered, and we do so here.
The first factor to be considered in evaluating cause in fact is the proximity of the purported cause and the complained of effect. Creating a passive condition which merely makes the injury possible is not necessarily a cause in fact. “A prior or remote cause cannot be made the basis of an action for damages if it does nothing more than furnish the condition of giving rise to the occasion which made the injury possible____”
Jack Williams Chevrolet, Inc. v. Bentley,
Proximate cause (embracing both cause in fact and foreseeability) “is that cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces the injury____ It is a practical test, a test of common experience applied to human conduct.”
Cook Consultants, Inc. v. Larson,
A second factor to be considered under Texas law and tort law generally is whether an act or omission of a separate and independent agency was the immediate cause of the plaintiff’s injury and was not reasonably foreseeable. Such an act generally destroys the causal connection between the defendant and the plaintiff’s injury.
See Walker v. Burgdorf,
It is of significant relevance in this case that Texas cases also hold that an intervening criminal act will break the chain of causation.
Garza v. United States,
The Restatement of Torts helps shed light on this issue:
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 cre-ated____
Restatement (Second) of Torts § 448 (1964).
The analysis in the Restatement (Second) of Torts supports the analysis of the Texas cases. In section 442 it sets out six elements that are relevant to determining whether an intervening force is a superseding cause:
(1) whether the intervening force brings about harm that is “different in kind from that which would otherwise have resulted from the actor’s negligence”;
(2) whether the chain of circumstances appears to be extraordinary;
*834 (3) whether the intervening force operates “independently” of the situation created by the actor;
(4) whether the operation of the intervening forces is the result of a third person’s act;
(5) whether the act of the third person is wrongful; and
(6) the “degree of culpability” of the third person for the wrongful act that “sets the intervening force in motion.”
The Texas courts have accepted this analysis of the Restatement as in general correctly reflecting Texas law.
Humble Oil & Refining Co. v. Whitten,
Analyzing the events surrounding Ur-bach’s death within this framework, the trial court’s conclusion that the acts of Urbach’s cellmates were an intervening force is not clearly erroneous. The first factor could arguably support a finding of proximate cause. Urbach had a history of disputatious and confused behavior and releasing him might lead to his injury at the hands of someone he provoked. The chain of events, however, is extraordinary. The sequence between the furlough, arrest, and incarceration could not be easily predicted. Finally, the latter four factors all weigh in favor of concluding that the acts of Ur-bach’s cellmates were an intervening cause. The prisoners acted completely independently of the YA’s negligence, their actions were wrongful, and they were directly responsible for the injuries that caused Ur-bach’s death.
The appellants move beyond this basic analysis of Texas law set out above. They argue that Texas law does not recognize the prisoner's acts as superseding because the underlying negligent act of allowing Urbach to travel to Mexico was a concurring or cooperating cause along with the acts of the cellmates.
The appellants cite several Texas cases in which an overtly negligent act by a third party was held not to be a superseding act. But each of these cases upon which the appellants rely involved an owner of prop-
erty who allowed a continuously dangerous situation to exist so that the second party's act merely triggered an inherently dangerous situation.
Walker v. Burgdorf,
Finally, the appellants cite cases which found liability for the negligent release and non-supervision of a psychiatric patient. In one of these cases the United States was found liable under the FTCA for the release of a patient who after having threatened a woman killed her upon his release.
Underwood v. United States,
The appellants also urge that
Arlington Heights Sanitarium v. Deaderick,
Conclusion
The comprehensive attempt by appellants to prove causation cannot succeed. The murder of Urbach by his cellmates in a Mexican prison was correctly found by the district court to be an intervening cause. The judgment below must be affirmed.
AFFIRMED.
Notes
. There was some conflict concerning the cause of Urbach’s death. The first doctor to perform an autopsy in Mexico stated that a severe concussion caused Urbach’s death. A second doctor said bronchial pneumonia killed Urbach, perhaps allied with malnutrition and improper administration of fluids during Urbach’s coma. Mexican authorities stated the official cause of death as pneumonia, but the trial court rejected this explanation, instead concluding that a beating by fellow prisoners led to Urbach's coma and death. This finding is not challenged on appeal, and there is ample evidence to support it. The American Embassy officials were initially told by Mexican officials that Urbach had been in a fight but this story was later retracted. A guard and fellow American prisoners testified that Urbach was a problem prisoner and would provoke other prisoners. Urbach’s facial bruises were not the sort acquired from a fall, contrary to the Mexican authorities’ explanation. We therefore accept the trial court’s finding on this point.
. A careful review of the record reveals that Urbach had been arrested twice for violent behavior, once for assaulting a police officer and resisting arrest in Waco on June 21, 1976 and once for making threats on September 1, 1970 in San Antonio. He had also apparently many years earlier broken his wife’s nose. These incidents aside, the vast majority of Urbach’s scrapes with the law involved bad checks and petty larceny.
. Urbach's survivors claim that the VA "airmailed” him outside the jurisdiction in which it could help him, a fact which supposedly differentiates this furlough from Urbach’s other ones. Yet Urbach was not beyond assistance. Once he was arrested for allegedly burning his hotel room, Urbach's son went to Mexico but failed to offer to compensate the hotel owner or hire Urbach a defense attorney, although either action may well have kept Urbach out of jail. Furthermore, the survivors fail to explain why it should have been anticipated that Urbach would provoke someone to the point of beating him to death in Mexico but not encounter a similar mishap on the streets of an American city; there was no evidence that such violence was more probable in Mexico or in Mexican prisons.