Atherton v. Devine

Decision Date18 September 1979
Docket NumberNo. 53445,53445
Citation1979 OK 132,602 P.2d 634
PartiesDelayne A. ATHERTON, Appellant, v. Dan Joseph DEVINE, Appellee.
CourtOklahoma Supreme Court

Appeal from the District Court of Oklahoma County; Stewart M. Hunter, judge.

Certiorari granted pursuant to 12 O.S.1971 § 952(b)(3). Appellant seeks reversal of the trial court's order that as a matter of law the appellee involved in a traffic accident cannot be held liable for the subsequent injury sustained by the appellant while he was a passenger in an ambulance transporting him to the hospital from the situs of the original accident.


Bloodworth, Smith & Biscone by Robert B. Smith, Oklahoma City, for appellant.

Proctor, Fleming & Speck by Kent Fleming, Oklahoma City, for appellee.

HODGES, Justice.

The certified order which affects a substantial part of the merits of this controversy is the holding of the district court that, as a matter of law, the appellee, Dan Joseph Devine, who was involved in the original accident, cannot be held liable for subsequent injuries sustained by the appellant, Dalayne A. Atherton, while he was a passenger in an ambulance transporting him to the hospital from the scene of the initial accident. Because it is a case of first impression, and interlocutory appeal will materially advance the ultimate determination of this action, we grant certiorari.

Immediately following the automobile accident involving the parties, an ambulance was summoned to take the appellant to the hospital for treatment of injuries he had received as the result of the collision. The ambulance was involved in a second collision resulting in the appellant sustaining additional personal injuries.


The question presented is whether an original tortfeasor, causing personal injury to one because of his negligence, may be liable to that person for injuries received in a second accident while being transported in an ambulance from the situs of the first accident. It is asserted by appellant that the appellee should be held responsible for the subsequent injuries because, absent the conduct of the appellee in the first accident, the appellant would not have been placed in the position, i. e., an ambulance ride to the hospital which resulted in his additional injuries.

The general rule is that an intervening force which could reasonably have been foreseen or which is a normal incident of the risk created will not suffice to relieve an original tortfeasor of liability. 1 A person who has received an injury due to the negligence of another is entitled to recover all damages proximately traceable to the primary negligence including subsequent aggravation which the law regards as a sequence and natural result likely to flow from the original injury even though there may have been some intervening cause contributing to the result. Where there is an intervening responsible agency which directly produces an injury the question whether the original negligence is to be regarded as the proximate cause of the injury, or only as a condition, is to be determined by ascertaining whether the agency which intervened was of such character and the circumstances under which it occurred were such that it might have been reasonably expected that an injury similar to the one caused might actually happen. If, under the circumstances, the intervention of such an agency in the manner in which it occurred might reasonably have been expected to happen, then the chain of causation extending from the original wrongful act to the injury is not broken by the independent intervening agency, and the original wrongful act is treated as the proximate cause thereof. 2 Foreseeability is an essential element of proximate cause in Oklahoma, and it is the standard by which proximate cause, as distinguished from the existence of a mere condition, is to be tested. This Court has considered the dichotomy of the condition precedent and proximate cause several times involving illegally parked vehicles. 3 The question in this case does not involve proximate cause for the purpose of determining culpability, as in the parked car cases, but rather to determine the extent of the injuries for which the appellee should be held liable.

It has uniformly been recognized that a tortfeasor whose negligence has caused injury to another is also liable for any subsequent injury or reinjury that is the proximate result of the original injury, except where the subsequent injury or reinjury was caused by either the negligence of the injured person, or by an independent or intervening act of the injured person, or by an independent or intervening act of a third person. The courts have taken the position that the first injury or act of negligence need not be the sole cause of the subsequent injury, but is sufficient if it was a substantial factor in causing the latter injury. 4 It has long been the rule in Oklahoma that an original wrongdoer, negligently causing injury to another is liable for the negligence of a physician who treats the injured person where the negligent treatment results in the aggravation of injuries, so long as the injured person exercises good faith in the choice of his physician. 5 The reason for the rule is that the employment of a physician is regarded as a natural consequence of the original wrong, because the necessity for such employment is imposed on the injured party by the fault of the original tortfeasor. This liability is founded on sound reasons of public policy. 6

As a matter of principle, there would seem to be no material distinction between medical treatment required because of the tortious act, and transportation required to reach an institution where medical treatment is available. The use of an ambulance, like the use of a surgeon's scalpel, is necessitated by the tortfeasor's wrong, and either may be used negligently. Although this is a novel question in Oklahoma, it was determined under similar fact situations in State v. Weinstein, 398 S.W.2d 41, 44 (Mo.App.1965) and in Pridham v. Cash & Carry Building Center, Inc., 116 N.H. 292, 359 A.2d 193, 198 (1976) that any negligence connected with the treatment of an injury necessitated by the act of the original wrongdoer should be regarded as the proximate result of the original...

To continue reading

Request your trial
32 cases
  • Lockhart v. Loosen
    • United States
    • Oklahoma Supreme Court
    • July 15, 1997 the natural consequence of the negligence. It must also have been the probable consequence." Id. 204 P.2d at 279.16 Atherton v. Devine, 602 P.2d 634, 636 (Okla.1979).17 Minor v. Zidell Trust, 618 P.2d 392, 394 (Okla.1980).18 Thompson, supra note 12 at 264; Zidell Trust, supra note 17 at ......
  • Willard v. Kelley
    • United States
    • Oklahoma Supreme Court
    • December 4, 1990
    ...Co., Okl., 368 P.2d 852, 854-855 (1962); Long v. Ponca City Hospital, Inc., Okl., 593 P.2d 1081, 1084-1085 (1979); Atherton v. Devine, Okl., 602 P.2d 634, 636 (1979); Minor v. Zidell Trust, Okl., 618 P.2d 392, 394 (1980); Thompson v. Presbyterian Hosp., Inc., Okl., 652 P.2d 260, 263-264 (19......
  • Johnson v. Hillcrest Health Center, Inc.
    • United States
    • Oklahoma Supreme Court
    • February 18, 2003
    ...1997 OK 105, ¶ 8, 943 P.2d 611; Lockhart v. Loosen, 1997 OK 103, ¶ 10, 943 P.2d 1074. 30. Jackson v. Jones, see note 24, supra; Atherton v. Devine, 1979 OK 132, ¶ 4, 602 P.2d 31. Thompson v. Presbyterian Hospital, Inc., see note 24, supra; Minor v. Zidell Trust, see note 26, supra. The hosp......
  • In re Adoption of 2008 Revisions to Oklahoma Jury Instructions Civil, 2008 OK 93 (Okla. 10/14/2008)
    • United States
    • Oklahoma Supreme Court
    • October 14, 2008
    ...of the original injury. Notes on Use The first alternative in this Instruction should be used in cases such as Atherton v. Devine, 1979 OK 132, 602 P.2d 634, where the plaintiff received additional injuries when the ambulance in which he was being transported from the original accident was ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT