Robert P. SUMPTER, Appellant, v. CITY OF MOULTON, Appellee.
No. 92-1861
Court of Appeals of Iowa.
July 11, 1994.
Amanda has had two guardian ad litems. Both guardian ad litems have had substantial involvement. In In re J.V., 464 N.W.2d 887, 893 (Iowa App.1990), we said:
[O]ur system has provided us with advocates and an impartial decision-maker. The guardian ad litem is not designed to be the decision-maker, and is an advocate for the child, not the parents or the State. It simply is not sufficient for a guardian ad litem to sit back, review the record and the arguments, and arrive at a decision. This function is filled ably by the juvenile courts. Neither is it sufficient for a guardian ad litem to be a handmaiden to one of the adversary parties. Usually there will be a limited number of options for which to advocate, such as whether or not to terminate the parent-child relationship, and the guardian ad litem will often have a position consistent with one of the adverse parties and in opposition to another. This, however, must be solely as an advocate for the interests of the children. Otherwise, the guardian ad litem is merely perfunctory, serving only to fulfill arcane, if not empty, requirements of due process.
The guardian ad litems have followed our suggestions set forth in J.V.. The guardian ad litem appeared and argued the case and sought affirmance of the juvenile court‘s order.
We recognize there are two homes available to Amanda that will provide stability and financial security. We also recognize placement with either of those families will separate Amanda from what she considers “her” family. We recognize the trauma a child suffers when severed from strong family bonds. The juvenile court has carefully considered all alternatives, viewed the witnesses, and has familiarity with the case. We also give weight to the recommendation of the guardian ad litem.
We look at Amanda‘s clear indication that her grandmother is her family along with the other evidence. See State ex rel. Bruner v. Sanders, 256 Iowa 999, 1006, 129 N.W.2d 602, 606-07 (1964).
The question is what course better serves Amanda‘s interest. See In re A.M.S., 419 N.W.2d 723, 726 (Iowa 1988); In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). The narrow issue before us is should reunification efforts with the grandmother have continued until the next review hearing. We find no reason to disturb the juvenile court‘s ruling on this issue. We affirm.
AFFIRMED.
Lloyd E. Keith of Keith, Orsborn, Bauerle, Milani & Neary, Ottumwa, for appellee.
Considered by DONIELSON, C.J., and HABHAB and CADY, JJ., but decided by DONIELSON, C.J., and HAYDEN, SACKETT, HABHAB, CADY, and HUITINK, JJ.
CADY, Judge.
This is a negligence action brought by Robert Sumpter against the city of Moulton after Sumpter suffered a heart attack while cleaning the public ditches near his home. Sumpter claimed the city was negligent in failing to keep the ditches open, and this omission caused his injury.
The next day, however, sixty-five-year-old Sumpter set out to clean the ditches himself. After working for approximately four hours, he felt pain in his chest and arm. He was admitted to the hospital, and diagnosed as having had a mild heart attack.
Sumpter had not had a physical exam since his retirement five years earlier, and thought he was in excellent health. An angiogram revealed Sumpter had heart disease with ninety to ninety-five percent blockage in his right coronary artery. According to his treating physician, Sumpter complained of a short episode of chest pain the night before he cleaned the ditches. This was denied by Sumpter. Sumpter remained in the hospital for a week. He was later admitted to a hospital in Des Moines for bypass surgery. His physician testified that bypass surgery was inevitable given the extent of Sumpter‘s blockage, unless Sumpter had suffered a fatal heart attack.
Sumpter testified at trial that the blocked ditches caused standing water which flooded his basement. The jury returned a verdict finding the city negligent, but concluded the negligence did not proximately cause Sumpter‘s injuries.
Sumpter appeals. He argues the district court erred in instructing on the issues of intervening cause and proximate cause, and in failing to instruct on the issues of aggravation of pre-existing condition or previous infirm condition.
I. INTERVENING CAUSE INSTRUCTION.
The law does not impose liability for negligence unless the breach of duty of care is also the actual and legal cause of an injury. See Blackhawk Bldg. Sys., Ltd. v. Law Firm of Aspelmeier, Fisch, Power, Warner & Engberg, 428 N.W.2d 288, 290 (Iowa 1988). Even when causation is established, however, a defendant may be relieved of liability if a later-occurring event breaks the causal events between the original negligent conduct and the injury. Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 349 (Iowa 1991). This break in causation is commonly known as “superseding intervening cause.” The law considers this type of intervening cause to be the effective harm, and relieves the defendant from liability for the earlier negligent act or omission.
An “intervening cause” is a new and independent force which actively operates in producing harm to another after the defendant‘s negligent act or omission has been committed. State v. Marti, 290 N.W.2d 570, 586 (Iowa 1980). An intervening force becomes a “superseding cause,” and insulates a defendant from liability, when the intervening act was not a normal consequence of the defendant‘s act or was not reasonably foreseeable. Haumersen v. Ford Motor Co., 257 N.W.2d 7, 15 (Iowa 1977).
After instructing on proximate cause, the trial court charged the jury with the following instruction:
Under Iowa law, someone who is negligent may be relieved of liability for his negligent conduct if another circumstance breaks the chain of causal events between the negligence and injury. This is called an “intervening cause.”
An intervening cause is one which actively operates in producing harm to another after one actor‘s negligent act of omission has been committed. An intervening cause is an independent force which breaks the causal connection between the original wrong and the injury complained of. However, an intervening cause will not relieve a negligent defendant of liability if that cause was a normal consequence of the defendant‘s conduct or was not reasonably foreseeable by that defendant.
Sumpter argues it was improper to submit the instruction because there was no evidence of an intervening event subsequent to the negligent act of the city.
The city claims the intervening event was Sumpter‘s own conduct of physically “over
Generally, the doctrine of intervening cause embraces the intervention of the acts of a third-party or an outside force, not the actions of the injured plaintiff. See Schnebly v. Baker, 217 N.W.2d 708, 729 (Iowa 1974) (superseding cause involves an act of a third person or other force); Blessing v. Welding, 226 Iowa 1178, 1184, 286 N.W. 436, 439 (1939) (rule applies to the act of a third party). See also Hickey v. Zezulka, 439 Mich. 408, 487 N.W.2d 106, 118 (Mich.1992); Beirne v. Security Heating-Clearwater Pools Inc., 759 F.Supp. 1120, 1123 (M.D.Pa.1991) (intervening cause is not properly applied to the plaintiff‘s conduct); Restatement (Second) of Torts § 440. We recognize, however, that some jurisdictions have applied the doctrine to conduct of the injured plaintiff. See Caraballo v. United States, 830 F.2d 19, 22 (2d Cir.1987) (applying New York law); Faris v. Potomac Elec. Power Co., 753 F.Supp. 388, 390 (D.C.1991); 57A Am.Jur.2d Negligence § 650 (1989). In addition to requiring the plaintiff‘s conduct to be wholly unforeseeable, these cases often involve acts of the plaintiff that rise above mere negligence. 57A Am.Jur.2d Negligence § 650. On the other hand, “if the acts of the plaintiff are within the ambit of the hazards covered by the duty imposed upon the defendant, they are foreseeable and do not supersede the defendant‘s negligence.” 57A Am.Jur.2d Negligence § 652. Moreover, if the negligent act of the defendant establishes the stimulus for the plaintiff‘s act, there is ordinarily no break in the chain of events to relieve the defendant from liability, and the subsequent acts of the plaintiff cannot constitute the superseding cause of the injury. 57A Am.Jur.2d Negligence § 648; Hickey, 487 N.W.2d at 119-20. Because of our preference for addressing the conduct of parties under the concept of comparative fault, and under the circumstances of this case, we believe the intervening cause of instruction was improperly given.
Substantial evidence must be presented at trial to support the submission of an instruction. Coker v. Abell-Howe Co., 491 N.W.2d 143, 150 (Iowa 1992). Evidence is substantial when reasonable minds would accept it as adequate to reach the conclusion. Id. Under this standard, the evidence in this case did not support the intervening cause instruction.
The duty of care imposed on the city was not challenged on appeal.1 This duty required the city to keep the culverts and ditches open. Sumpter was an adjoining landowner. He was doing no more than the city was obligated to do by law. His actions were not alleged to have been wrongful in any way. They were done in direct response to the failure of the city to act. The city created the stimulus for Sumpter to act, and exposed him to a risk of harm. Under the circumstances, Sumpter‘s actions could not constitute an intervening, superseding cause of his injury. See Restatement (Second) of Torts § 442 (1965).
While we are not prepared to hold that the conduct of a plaintiff could never constitute a superseding cause, we believe caution must be taken in applying the concept to conduct of a plaintiff since the result is to bar recovery. The principles of comparative fault could be seriously diluted by utilizing the conduct of a plaintiff as an intervening cause. The preferred approach is to judge the conduct of the plaintiff under comparative fault. The doctrine of superseding cause should be strictly limited to cases involving acts that are independent of the alleged negligence of the defendant.
Since the jury found the negligence of the city did not cause the injuries claimed by Sumpter, we must conclude the instruction was prejudicial.2 See Schneider
We recognize the undisputed evidence in the case that Sumpter‘s heart attack was inevitable. He had massive coronary artery blockage. Given these facts, the jury could have decided the city‘s negligence was not a proximate cause because it was not a substantial factor in producing the heart attack. Notwithstanding, the introduction of the concept of superseding cause into the case had a direct impact on the proximate cause analysis. See Schnebly, 217 N.W.2d at 728. It permitted the jury to free the city from liability even if its negligent conduct was a substantial factor in producing the harm. Id.; Restatement (Second) of Torts § 440. Consequently, Sumpter was clearly prejudiced by the instruction.3
II. AGGRAVATION OF PRE-EXISTING CONDITION INSTRUCTION
Because we reverse for a new trial, we also consider the remaining claims involving the jury instructions.
The trial court denied Sumpter‘s instruction on aggravation of pre-existing condition and previous infirm condition. Requested jury instructions are required to be given when they properly state the law and apply to the facts in the case. Stover v. Lakeland Square Owner‘s Ass‘n, 434 N.W.2d 866, 868 (Iowa 1989).
A tortfeasor whose act results in an injury to another, when superimposed upon a prior latent condition, may be responsible in damages for the full disability. Benn v. Thomas, 512 N.W.2d 537, 539 (Iowa 1994); Becker v. D & E Distrib. Co., 247 N.W.2d 727, 731 (Iowa 1976). This doctrine is commonly known as the “eggshell plaintiff” rule, and is applicable to both the causation and damage elements of a negligence claim. Benn, 512 N.W.2d at 539. As it relates to causation, the rule essentially removes the foreseeability limitation typically required in the determination of proximate cause. Id. at 539-40.
The city argues the “eggshell” instruction was properly refused by the trial court since Sumpter‘s extensive coronary disease made his heart attack inevitable, and because his subsequent by-pass surgery was successful. We agree that a defendant cannot be liable to an “eggshell” plaintiff if the pre-existing condition alone causes the injury. See Dunn v. Cadiente, 516 N.E.2d 52, 56 (Ind.1987). In this case, however, Sumpter‘s physician testified that the physical exertion by Sumpter in cleaning the ditch was the
III. PROXIMATE CAUSE INSTRUCTION
Finally, the trial court modified the uniform jury instruction (700.3) on proximate cause by substituting the phrase “substantial, foreseeable factor” for “substantial factor” and adding the following paragraph:
“Foreseeable” means that the harm suffered was the natural and probable consequence of the complained of act. A “foreseeable” consequence is one which a reasonably prudent person would anticipate as likely, though not necessary, to result from the performance or nonperformance of a given act.
Trial courts have discretion to modify or rephrase the uniform jury instructions to meet the precise demands of each case as long as the instructions fully and fairly embody the issues and applicable law. Norton v. Adair County, 441 N.W.2d 347, 358 (Iowa 1989). In this case, the trial court injected the concept of foreseeability into the substantial factor test.
Causation is a necessary element in all negligence cases. It is actually composed of two related but separate concepts. The first considers the actual cause of the harm. This is known as “cause-in-fact.” The second part embraces the legal cause of the injury. This is known as “proximate cause.” Even though an act of the defendant may be the factual or actual cause of the plaintiff‘s injury, liability will only be imposed if it is also a proximate or legal cause of the injury.
The test to determine the actual cause prong of causation is known as sine qua non; but for the defendant‘s conduct, the harm would not have occurred. State v. Marti, 290 N.W.2d at 585. The test to determine proximate or legal cause is more involved. Generally, an actor‘s conduct is a proximate or legal cause of harm to another if the conduct is a “substantial factor” in producing the harm and there is no other rule of law which relieves the actor of liability because of the manner in which the negligence resulted in the harm. Kelly, 476 N.W.2d at 349. Iowa follows the Restatement (Second) of Torts in using the “substantial factor” test to help determine the existence of proximate or legal cause. Id.; Frederick v. Goff, 251 Iowa 290, 298, 100 N.W.2d 624, 629 (1960). This test is found in uniform instruction 700.3, together with the “but for” test.
The word “substantial” is used to express the notion that the defendant‘s conduct has such an effect in producing the harm as to lead reasonable minds to regard it as a cause. Restatement (Second) of Torts § 431 cmt. a. Numerous factors are considered to help determine whether negligent conduct is a “substantial factor” in producing the harm, including the existence and extent of other factors, the continuation of the force created by the defendant, and the lapse of time involved. Restatement (Second) of Torts § 433 cmt. a. The “substantial factor” test originated to help resolve situations involving multiple causes to an event. See William L. Prosser, Law of Torts § 41, at 240 (4th ed. 1970).
The concept of foreseeability, on the other hand, is a component to proximate cause to help determine the extent to which the law should impose liability for negligence.
While the substantial factor test and the concept of foreseeability can join to form the foundation of the proximate cause analysis, they should be considered separately. Foreseeability actually comes into play after a determination has been made that the defendant‘s conduct was a substantial factor in producing plaintiff‘s injury. See Restatement (Second) of Torts § 435. The modified instruction submitted by the trial court blurs the distinction between “substantial factor” and foreseeability. It also failed to fully explain the concept of foreseeability as a legal limitation on the responsibility for harm. In particular, the instruction failed to inform the jury that the specific harm or consequence that resulted need not be foreseeable. Accordingly, the instruction, as modified, should be avoided on retrial.
The “substantial factor” test is actually more compatible with a factual causation analysis, than a legal causation analysis. See Prosser, at 248; Restatement (Second) of Torts § 433. The rules which frame the legal limits of responsibility for harm, such as foreseeability and intervening cause, can be properly viewed as exceptions to recovery under the “substantial factor” test. They are generally reserved to cases where it is urged by the defendant that the law should restrict liability even though his or her conduct may have been a substantial factor in producing the harm to the plaintiff. This may be a useful approach in preparing the causation instructions on retrial.
In wrestling with unique or special issues at trial, such as foreseeability or intervening cause, it must be remembered that it is the responsibility of the court to declare the existence or non existence of any rule which relieves a tortfeasor from responsibility for harm which the person‘s conduct was a substantial factor in producing. Restatement (Second) of Torts § 453. The intervening cause instruction and the modified proximate cause instruction make up two such rules. They must, therefore, be given with caution, and only when supported by the underlying facts of the case. If the facts are undisputed, it becomes the duty of the court to apply the facts to the limiting rules. If reasonable persons could differ on whether some harm, for example, was foreseeable, the court should leave the application of the rules for the jury. Restatement (Second) of Torts § 453 cmt. b.
We reverse and remand for a new trial.
REVERSED AND REMANDED.
All judges concur except SACKETT, J., who dissents.
SACKETT, Judge (dissenting).
I dissent. I would affirm. I do not find the trial court erred in submitting an instruction on intervening cause.
An intervening force is one which actively operates in producing harm to another after the actor‘s negligent act or omission has been committed. Restatement (Second) of Torts § 441, at 465 (1965). The cases in which the effect of the operation of an intervening force may be important in determining whether the negligent actor is liable for another‘s harm are usually cases in which the actor‘s negligence has created a situation harmless unless something further oc
It was established defendant had an obligation to clear the road ditches and failed to do so. It also was established plaintiff voluntarily decided to cut the weeds and the situation only became dangerous when plaintiff exerted himself doing so.
The weeds in the road ditch were basically harmless (at least they would not have caused plaintiff‘s heart attack) until something else occurred (plaintiff cut the weeds). Plaintiff‘s injury was not caused by the weeds, it was caused by plaintiff‘s action in cutting the weeds.
The fact plaintiff‘s intervention (plaintiff‘s act of exerting himself to clean the ditch) brought about harm different in kind from that which would otherwise have resulted from the actor‘s (City‘s) negligence; and the fact its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation would support a finding an intervening force (plaintiff‘s actions) is a superseding cause. See Restatement (Second) of Torts § 442, at 467 (1965).
While I agree with the majority that caution should prevail in assessing whether a plaintiff‘s conduct can be an intervening cause, I believe it is clearly applicable in this cause.
Furthermore, I fail to find substantial evidence to support a finding defendant was guilty of any negligence which was a proximate cause of plaintiff‘s injury. I believe a motion to dismiss plaintiff‘s claim on this ground, if made, should have been sustained. We are bound to affirm the trial court for any reason whether argued or not. See State v. Vincik, 436 N.W.2d 350, 354 (Iowa 1989).