*1 al., Appellants, Esther LACY et
DISTRICT OF et COLUMBIA
al., Appellees.
No. 12858.
District Appeals. of Columbia Court of
Reargued July 1980.
Decided Dec. *2 KELLY, MACK, KERN and Asso-
Before Judges. ciate KELLY, Judge: Associate daughter, Appellants, mother for assault and bat- brought a civil action negli- janitor and for tery against a school principal, a teacher and a against the gence daughter’s counsellor at guidance school, District of well as damages for employer, their Columbia as as- janitor’s sexual allegedly trial, mo- appellees’ an initial saults. After granted was on tion for a new trial against them was the verdict grounds that excessive, against the unconscionable and retrial, a Upon weight of evidence. de- in favor of all jury returned a verdict janitor, against fendants other than the for judgment was entered whom a default $173,000. grant Appellants appeal rulings various made the new trial and the second trial. court affirmed
A division of this
reversed
janitor
judgment against
appel-
the other
judgment in favor of
of a
grounds that the inclusion
lees on the
in the trial court’s
substantial factor test
on
instruction
Lacy v. District
prejudicial
error.
Columbia, D.C.App.,
More
structions,
supra,
incorporates ver-
verdict,
No.
quoted
has
from a
approvingly
part
expressed
this test as
the first
factor
batim
using
the substantial
Marsh,
F.2d
supra
at
in Dunn
Washington Hospital
Martin v.
Cen-
test.
proximate cause as “that
which defined
ter,
(1980).4
D.C.App.,
A.2d 913
cause,
se-
in natural and continual
conclusion
Our
here is reinforced
cases
efficient interven-
quence,
unbroken
law, which,
District
applying
of Columbia
injury and
produces the
without
binding
us,
persuasively
though not
result
not have occurred.”
which the
upheld the substantial
test.
See
Spar defini-
supra.
note 1
The fuller
See
Hadley
Hospital,
Daniels v.
Memorial
given following
then
substan-
tion was
84, 92,
F.2d
test,
summary
of what
tial factor
(1977) (diversity
District
applying
find to
jury must
determine
*4
against
negligence
law to
claim
Columbia
Second,
general
the
defi-
Id.
while
cause.
hospital
improper
patient with
for
care of
in
proximate
of
cause found
Dunn
nition
potentially
condition);
fatal
Hicks v. United
and sufficient ex-
Spar
and
is
accurate
169, 182-84,
States, 167
511
U.S.App.D.C.
legal
proximate
planation
concept
of the
of
407,
(1975) (District
F.2d
420-22
of Colum-
acceptable
is not the
defini-
only
it
in
applied
bia law
suit under Federal Torts
helpful
the defini-
when it is
to reduce
tion
neg-
for
hospital
Act
mental
Claims
explicit
or
terms. The
tion to clearer more
subsequently
ligent
patient
release of
proximate
complex
concept of
plaintiff).
killed
espe-
explanation,
to merit further
test,
the
factor
Additionally,
substantial
causes, and the
cially in cases of concurrent
expressed in the
under review
as
here,
test,
given
substantial
factor
as
a
Marsh,
here,
129
is consistent with Dunn v.
causation,
permissible
explaining
means of
245,
354,
248,
357
any finding
necessary prerequisite
of
(1968),
Spar
D.C.App.,
369
Obwoya,
proximate cause.
that
which hold
the
into a
may
Proximate cause
be divided
inju-
the
cause is whether
of
(causation)
poli-
and a
element
cause-in-fact
consequence
probable
is the natural
ry
The
cy
requirement
element.5
cause-in-fact
ought
negligent
wrongful
the
act and
of
that no
will be liable
assures
defendant
light
in
circumstances.
to be foreseen
plaintiff’s
in
unless he has
fact caused the
first,
note,
given
policy
We
the
The
includes various
harm.
element
re-
actually
liability-limiting
this definition of
considerations
jury
included
legal
As
cause is
in 431 it
§
4. The issue on
in Martin was whether
defined
consists
expert psychiatric
required
(a)
es-
of two elements:
the actor’s conduct must
evidence
Finding
hospital’s liability.
bringing
suffi-
tablish
be a “substantial
factor” in
about
harm;
(b)
could
cient other evidence from which
“rule
must be no
of
there
causation,
negligence
liability
find
we reversed the
law” which
for harm occur-
restricts
grant
judgment
question.
notwithstand-
ring
particular
trial court’s
in
in the
manner
jury’s
verdict.
analysis
the verdict
reinstated
factor”
such an
the “substantial
On
in
element deals with causation
fact while
(Second)
5. Section 431
the Restatement
legal policy
the other
with a
element deals
Torts, states:
relieving
liability
the actor
for harm he
legal
has,
fact,
actor’s
conduct is a
The
a matter
The conclu-
caused.
of harm to
extraordinary
another if
appears highly
sion that it
(a)
factor
his conduct
in
substantial
brought
the conduct should have
about the
harm,
bringing about the
nothing
question
harm has
with the
to do
(b)
relieving
there is no rule of law
actually
it did
the harm....
whether
“cause”
liability
of the manner in
actor from
because
negligence may
It seems obvious that
in
which his
resulted
has
particu-
in a
have been “substantial factor”
harm.
regardless
“highly
lar case
extraordi-
of how
Reporter’s
explain the defi-
The
§
Notes to
nary”
appears in
the chain of
retro-
events
set forth in
§
nition
431 and the reason
spect.
§
of Torts
[Restatement
change
Supplement
in 433 in
to the
§
the 1948
(1966).
app., at 129
first Restatement:
lieve the
harm
liability
Davis,
defendant
he
situation in McDowellv.
104 Ariz.
actually
(1968)
banc),
caused where the chain of
(en
upon
events
upheld. Cf. Wingfield Peoples Drug amount of defendant’s contribution to Store, Inc., D.C.App., 379 plaintiff’s 688 the proximate harm. The (1977) (“If party’s theory supported the prefaced by instruction was following the (cid:127) by the evidence then he is of course entitled statement: to theory jury.”); have his submitted to the You are instructed that the law forbids Capital Co., Evans v. D.C.Mun.App., Transit you attempt classify negligence to to into (1944) (more 39 A.2d general in- kinds, degrees grades compare or or or to not prejudicial fully struction since it one negligence instance of with another accurately law). the informed as to judge deserving which is the more of If you excuse. there should appropriate While test not be may as negligent was part conduct on the of a complete proximate measure of cause in more person, you than one are not to of liability-limiting sense all considera- attempt guilty to determine was tions,6 case, the instruction was nei- greater negligence with a view to as, ther intended did it nor effect favoring one whose conduct was less proximate being, sole measure of responsible. If you any party find that given cause. It was in addition to more to negligent, you this action was will general proximate statements on see follow the Court’s instructions in deter- supra, note 1 foreseeability. mining liability whether or not should Accordingly, in giving there was no error you attach and should do so without re- the instruction. gard you grade might compare to how or Whether substantial factor negligence you per- if involved misleading be as an addi- mitted do so. to tional instruction on cause where More compare importantly, allowed the relative directive, pat- instruction included contribution a defendant’s another terned bringing contribution of other causes on Standardized Instruction plaintiff’s about the injury is not at issue No. made may which it clear that there here. This case therefore differs from the be more than one substantial factor: Prosser, supra Report- 6. See § Notes, er’s Restatement of Torts app., at 129. Martin, as as in In both Hicks and well negligent or omissions
When the acts us, persons, two more whether commit- the immediate cause or before alleged or in the course inter- independently plaintiff’s injury ted conduct, concurrent- act, illustrating concerted contribute vening that the substantial causes, injury ly, applicable and as whenever properly factor test is another, persons is liable. each of such single inju- concurring causes of there are regardless the relative true the other causes regardless whether ry, It is no de- degree of the contribution. preexisting, as passive or such relatively are persons that some fense for one such condition, relatively active and physical person, joined as a defendant other such as subsequently, occur action, participated causing course other or criminal acts. Of injury, appear if even foreseeability and principles, such as person of that other limit superceding may doctrine of causes greater, wrongful its either nature liability. supra, note 5 See discussion its effect. accompanying text. admonition Because of this double comparative test quantitative II causation, there is no reasonable basis sub- we the trial court’s Because affirm infer that was mis- from which to instruction, two we address stantial factor application proper
led or confused as to the we other issues raised on of the test. previous in our unnecessary found to decide Columbia, su- Lacy v. District of opinion. Appellants the substan assert pra at nn. 6 & apply only to medical tial factor test should malpractice patient’s physi cases where the brief, original cite appellants In their his condition is a concurrent cause of cal trial court’s instruction reversible error the logical to draw harm. There is reason foreseeability criminal janitor’s limitation, particu if the test is such even su- the school’s actions the District and See, g., helpful e. larly in such cases. Gra *6 they at- personnel. Specifically, pervisory Roberts, supra, Had and Daniels v. ham following segment of the tack the (new or Hospital, supra Memorial trial ley charge: hospital’s negli to determine whether dered case, In ... would the defendants gent respiratory provide proper to failure unless the not be liable for administering delay its assistance and in plaintiffs preponderance have shown a fac injection were substantial intravenous had of the evidence that the defendants harm). plaintiff’s Application tors in on Britta knowledge actual that assaults approved has as a means estab been good reason to Lacy would occur or had lishing proximate types in other cause assaults, spite in anticipate the See, g., e. Mar well. negligence actions as anticipate knowledge to such or reason Center, supra, Washington Hospital tin v. failing take they negligent were in to States, supra. In Hicks v. United to assaults. precautions prevent the Hicks, in a claim applied the test was Hospital, agent as an against St. Elizabeths Government, by preponder- ... a for its Therefore if United States patient the defendants releasing a ance of the evidence that
alleged negligence in
knowledge or
have had
Mar
. .. had
should
his wife.
In
subsequently
killed
that Britta
knowledge
of the likelihood
tin,
action
wrongful
a similar
death
Lacy
be
while at Bunker
Hospital
assaulted
brought against
Washington
School,
knowledge
after
releasing
de
Hill
such
negligently
Center
failing
they
negligent
signs of mental
that
ceased who demonstrated
assaults,
your verdict
prevent such
then
in an auto
disorientation and killed himself
plaintiffs.
should be for the
his
crash soon after
release.
mobile
Appellants’
person may
contention
this in-
If the
that a
likelihood
act in
particular
struction was
in that
it re-
manner
the hazard
one
overrestrictive
which makes
actor
quired
hazards
foreseeability
to find
of a
act,
innocent,
negligent,
an
whether
harm,
assault,
such
specific
e.,
type
op-
i.
tortious, or
negligent, intentionally
crimi-
posed
harm,
appellees
kind of
before
being
nal does
from
prevent
the actor
could be
liable
negligence.
Impos-
held
thereby.
[Empha-
liable for harm
foreseeability
this standard of
on a
sis added.]
plaintiff, appellants argue, would make the
proof
burden of
in a
case
“im-
following
Comment a
this section makes
possible.”
reference
302B of
the Restatement
§
which reads as follows:
immediate
of the injury
An act or
omission
if
may
an
be
complained of in the
instant
was the
actor realizes
should realize that
intervening
party,
criminal act of
third
involves an
of harm to
unreasonable risk
cases,
janitor.
the school
In like
we have
through
another
of the other
conduct
held
responsible
a defendant will be
for the
person
a third
which is intended to
result,
damages which
despite
interven
harm, even though
such conduct is
tion of another’s act in
chain of
causa
criminal.
tion,
danger
intervening
neg
“[i]f
Foreseeability
particular
conduct
ligent or criminal
have
act should
been rea
determining
the na
relevant factor
anticipated
sonably
protected against.”
ture of the risk and the
of con
standard
St. Paul Fire & Marine Insurance Co. v.
against
duct. Three
unrelated cases
James
Corp.,
G. Davis Construction
D.C.
same
question
defendant which discuss the
App.,
“If,
350 A.2d
how
In
foreseeability are illustrative.
Cook v.
ever,
intervening
fairly
be
act can
said
Stores, Inc.,
Safeway
D.C.App.,
to be
reasonably
could not have
(1976),
v. Safeway
Graham
anticipated, plaintiff may
not look be Stores, Inc., D.C.App.,
(1974),
316 A.2d
yond
act for his recovery.” we
duty
held there was no
to foresee and
generally Prosser, supra
Id.7 See
guard against
purse
snatcher
words,
173-76.
In other
because
pushing
against
intentional
of a child
extraordinary
conduct,
nature of criminal
contrast,
broken
window.
By
store
the law requires
foreseeability
Stores,
Safeway
D.C.Mun.App.,
Viands v.
Thus,
the risk be more
shown.
precisely
325 meanings criminal act” “a . . . varying fuller instruction number of for the 828) appropriate.” (R. Despite is more among word these it is “substantial” — * * court, appellants’ objections, the trial after imaginary, defined as “not* not illu- giving Standardized Instruction No. sive.” it Were we certain that would be cause, defining proximate and Instruc- sense, or in this in the sense understood might concurring tion No. that there be “insignificant”, litigant a injury partici- causes of an “each of However, complain. little Web- cause is pating regarded proxi- acts ... as a ... ster also as “abun- defines “substantial” cause,” charged (R. 908): jurors mate dant, plentiful” and “considerable in However, order to find defend- amount”, Commonly, speak we p. ants liable sexual assaults on Brit- in terms a amount as in a substantial Lacy, you
ta must it first find that was substantial meal or a substantial income. more likely than not conduct that the word, meaning If this attributed defendants a [sic] palpably the instruction is erroneous as factor in the A possibility assaults. mere inducing concept largeness op- as of such causation not and if the posed to smallness. It is not how little or probabilities balanced, evenly are at best large how a cause is legal that makes a you should find for the defendants. my confusing was in which in a natural view and continuous se- because it in changed quence effect burden produces injury and without proof appellants to prove appellees’ which the result would occurred. the injury suffered Davis, 69, 71, v. 104 Ariz. 448 [McDowell standard, the child “by normal from (1968) (en banc) P.2d (emphasis preponderance evidence,” to some- in original).] thing greater. Supreme The Arizona Court agree I analysis.2 with this pointed out the confusion trial Accordingly, I judg- would reverse the court creates by employing the term “sub- ground ment on this a new order trial. jury stantial factor” in a charge on causa- tion:
The use of the word “substantial” in a open instruction is to serious criti-
cism in that it is a source of additional injected
confusion already into an diffi-
cult area of law. Webster’s Third Inter- Dictionary
national See Notes §to Re- tion on the substantial factor test included (Second) Torts, app., statement at 129 following statement: An act or omission be a cannot only slightly cause if contributes The substantial factor test has said result, possibly for a resolving to be the best means causa- cause is one which is material element tion in applied fact issue: to the fact “[a]s causing or a alone, of causation the test is of considera- 871; injury. 448 P.2d at em- ble perhaps guide assistance and no better [Id. phasis original.] Prosser, can be' found.” W. The Law of (footnote (4th 1971) Torts at 248 ed. McDowell, nothing Unlike addi- omitted). above, As mentioned the Re- suggested jur- tional instruction here use approved statement’s of that test was they ors defendant in Graham. liable if that defendant’s plaintiff’s harm, small or slight substantial factor test as cause of articulated part in Graham is that they compare importance District’s law negligence, and giv- differing contrary, since instruction as causes. On the correctly test, en stated that was specifically quantify it must be not to directed
Notes
Unabridged, notes Roberts, U.S.App.D.C. 2. Graham v. out a so instruction was even (1979) issue; Graham, Hadley 441 F.2d Appeals Daniels Me- Court Hospital, morial propriety judge concerned with the of the trial majority having setting jury’s evidentiary cited aside verdict “persuasively upheld cases, grounds. the substantial both In the issue was the test,” exemplify non, mismanagement, situations were in treating mark- medical patient vel Daniels, ed contrast to instant preexisting case. In with a condition illness. trial court decided the action with-