Lacy v. District of Columbia, 12858.

• Citation: 424 A.2d 317
• Decision Date: 05 December 1980
• Docket Number: No. 12858.,12858.
• Parties: Esther LACY et al., Appellants, v. DISTRICT OF COLUMBIA et al., Appellees.
• Court: Court of Appeals of Columbia District

Page 317

424 A.2d 317

Esther LACY et al., Appellants, v. DISTRICT OF COLUMBIA et al., Appellees.

No. 12858.

District of Columbia Court of Appeals.

Reargued July 22, 1980.

Decided December 5, 1980.

Samuel M. Shapiro, Washington, D.C., for appellants.

David P. Sutton and Margaret L. Hines, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, Washington, D.C., at the time the petition was filed, were on the petition, for appellees.

Before KELLY, KERN and MACK, Associate Judges.

KELLY, Associate Judge:

Appellants, mother and daughter, brought a civil action for assault and battery against a school janitor and for negligence against the principal, a teacher and a guidance counsellor at the daughter's school, as well as against the District of Columbia as their employer, for damages allegedly caused by the janitor's sexual assaults. After an initial trial, appellees' motion for a new trial was granted on the grounds that the verdict against them was excessive, unconscionable and against the weight of the evidence. Upon retrial, a jury returned a verdict in favor of all defendants other than the janitor, against whom a default judgment was entered for $173,000. Appellants appeal the grant of the new trial and various rulings made at the second trial.

A division of this court affirmed the judgment against the janitor and reversed the judgment in favor of the other appellees on the grounds that the inclusion of a substantial factor test in the trial court's instruction to the jury on proximate cause was prejudicial error. Lacy v. District of Columbia, D.C.App., 408 A.2d 985 (1979). Upon appellees' petition for rehearing or rehearing en banc, the division voted to rehear the case.

We now readopt our previous opinion in all respects except for the finding of prejudicial error and affirm.

This appeal was reheard to consider once again the propriety of a jury instruction, proposed by appellees and given in addition to the standard instruction on proximate cause, which reads:

However in order to find the defendants liable for the sexual assaults on [the minor child], you must first find that it was more likely than not that the conduct of the defendants was a substantial factor in the assaults. A mere possibility of such causation is not enough and if the probabilities are at best evenly balanced, you should find for the defendants. [Emphasis added.]

We conclude that the substantial factor instruction, in the context of the entire jury charge, properly stated the law of the District of Columbia and does not constitute prejudicial error.

The trial court's complete charge on the issue of proximate cause is set out in the margin¹ to illustrate the effect of the substantial factor instruction on the jury, and because "[i]t is axiomatic that `a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.'" Watts v. United States, D.C.App., 362 A.2d 706, 709 (1976) (en banc) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973)). This charge includes Standardized Jury Instructions for the District of Columbia (1968), Nos. 64 (proximate cause defined), 65 and 66 (concurring causes), as well as the challenged substantial factor test.

The District of Columbia has not adopted the substantial factor test as a substitute definition of proximate cause; however, use of that test, as an element of proximate cause analysis, has been approved by the United States Court of Appeals for the District of Columbia Circuit in Graham v. Roberts, 142 U.S.App.D.C. 305, 441 F.2d 995 (1970), a case with controlling precedential effect upon our decision here. See M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971). Although Graham did not specifically involve a challenge to a substantial factor jury instruction, it did hold that the jury could properly have determined the existence of proximate cause under the substantial factor test as incorporated in the Restatement (Second) of Torts § 431 (1965).² Graham, supra at 308 n. 3, 441 F.2d at 998 n. 3.³

More recently, this court, in reinstating a jury verdict, has quoted approvingly from a jury instruction using the substantial factor test. Martin v. Washington Hospital Center, D.C.App., 423 A.2d 913 (1980).⁴

Our conclusion here is reinforced by cases applying District of Columbia law, which, though not binding on us, have persuasively upheld the substantial factor test. See Daniels v. Hadley Memorial Hospital, 185 U.S.App.D.C. 84, 92, 566 F.2d 749, 757 (1977) (diversity case applying District of Columbia law to negligence claim against hospital for improper care of patient with potentially fatal condition); Hicks v. United States, 167 U.S.App.D.C. 169, 182-84, 511 F.2d 407, 420-22 (1975) (District of Columbia law applied in suit under Federal Torts Claims Act against mental hospital for negligent release of patient who subsequently killed plaintiff).

Additionally, the substantial factor test, as expressed in the instruction under review here, is consistent with Dunn v. Marsh, 129 U.S.App.D.C. 245, 248, 393 F.2d 354, 357 (1968), and Spar v. Obwoya, D.C.App., 369 A.2d 173, 178 (1977), which hold that the test of proximate cause is whether the injury is the natural and probable consequence of the negligent or wrongful act and ought to be foreseen in light of the circumstances. We note, first, that the charge given the jury actually included this definition of proximate cause. Standardized Jury Instructions, supra, No. 64, incorporates verbatim the first part of this test as expressed in Dunn v. Marsh, supra at 248, 393 F.2d at 357, which defined proximate cause as "that cause, which in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred." See note 1 supra. The fuller Spar definition was then given following the substantial factor test, in summary of what the jury must find to determine proximate cause. Id. Second, while the general definition of proximate cause found in Dunn and Spar is an accurate and sufficient explanation of the legal concept of proximate cause, it is not the only acceptable definition when it is helpful to reduce the definition to clearer or more explicit terms. The concept of proximate cause is complex enough to merit further explanation, especially in cases of concurrent causes, and the substantial factor test, as given here, is a permissible means of explaining causation, a necessary prerequisite to any finding of proximate cause.

Proximate cause may be divided into a cause-in-fact (causation) element and a policy element.⁵ The cause-in-fact requirement assures that no defendant will be liable unless he has in fact caused the plaintiff's harm. The policy element includes various liability-limiting considerations which relieve the defendant of liability for harm he actually caused where the chain of events appears "highly extraordinary in retrospect." See Reporter's Notes to § 433, Restatement (Second) of Torts, 3 app., at 129 (1966).

The substantial factor test has been said to be the best means of resolving the causation in fact issue: "[a]s applied to the fact of causation alone, the test is of considerable assistance and perhaps no better guide can be found." W. Prosser, The Law of Torts § 42, at 248 (4th ed. 1971) (footnote omitted). As mentioned above, the Restatement's use of that test was approved in Graham.

The substantial factor test as articulated in Graham is part of the District's law of negligence, and since the instruction as given correctly stated that test, it must be upheld. Cf. Wingfield v. Peoples Drug Store, Inc., D.C.App., 379 A.2d 685, 688 (1977) ("If the party's theory is supported by the evidence then he is of course entitled to have his theory submitted to the jury."); Evans v. Capital Transit Co., D.C.Mun.App., 39 A.2d 869, 871 (1944) (more general instruction not prejudicial since it fully and accurately informed jury as to the law).

While the test may not be appropriate as a complete measure of proximate cause in the sense of all liability-limiting considerations,⁶ in this case, the instruction was neither intended as, nor did it have the effect of being, the sole measure of proximate cause. It was given in addition to the more general statements on proximate cause, see note 1 supra, and a charge on foreseeability. Accordingly, there was no error in giving the instruction.

Whether a substantial factor test could be misleading and prejudicial as an additional instruction on proximate cause where the jury is allowed to compare the relative contribution of a defendant's negligence to the contribution of other causes bringing about the plaintiff's injury is not at issue here. This case therefore differs from the situation in McDowell v. Davis, 104 Ariz. 69, 448 P.2d 869 (1968) (en banc), relied upon in our prior opinion, where the jury instruction on the substantial factor test included the following statement:

An act or omission cannot be a proximate cause if it contributes only slightly or possibly to the result, for a proximate cause is one which is a material element or a substantial factor in causing the injury. [Id. at 71, 448 P.2d at 871; emphasis in original.]

Unlike McDowell, nothing in the additional instruction here suggested to the jurors that they should not find any defendant liable if that defendant's negligence was a small or slight cause of plaintiff's harm, or that they could compare the importance of differing causes. On the contrary, the jury was specifically directed not to quantify the amount of any defendant's contribution to the plaintiff's harm. The proximate cause instruction was prefaced by the following statement:

You are instructed that the law forbids you to attempt to classify negligence into degrees or grades or kinds, or to...