Maupin v. Widling

• Decision Date: 09 June 1987
• Citation: 192 Cal.App.3d 568,237 Cal.Rptr. 521
• Parties: Josephine MAUPIN, Plaintiff and Appellant, v. Alan Clark WIDLING, et al., Defendant and Respondent. Civ. B015047.
• Court: California Court of Appeals Court of Appeals

Page 521

237 Cal.Rptr. 521

192 Cal.App.3d 568

Josephine MAUPIN, Plaintiff and Appellant, v. Alan Clark WIDLING, et al., Defendant and Respondent.

Civ. B015047.

Court of Appeal, Second District, Division 6, California.

June 9, 1987.

As Modified on Denial of Rehearing July 7, 1987.

Review Denied Aug. 26, 1987.

Frazier, Dame & Doherty and Peter J. Groom, Oxnard, for plaintiff and appellant

Zajic & Lauritsen and Christopher J. Zajic, Santa Barbara, for defendant and respondent.

GILBERT, Associate Justice.

Here we hold that the court erred in giving BAJI No. 3.75 (7th ed. 1986) ^* in conjunction with BAJI No. 3.79. The jury was likely confused by the use of two different but alternate tests for establishing cause in fact in a negligence action. We therefore reverse the judgment.

FACTS

The defendant Alan Widling was driving along State Street in Santa Barbara on the way back to high school after having lunch. Ahead of Widling by about 20 yards and approaching an intersection was the car driven by Mildred Carlson. Ahead of Carlson, partly protruding from the extreme left turning lane and waiting for the light Widling slowed down to about 20 miles per hour, intending to change lanes to the right. He was looking over his shoulder and then in the rearview mirror when a passenger in the car warned him to slow down. Widling looked forward to discover he was only two to three feet from the Carlson vehicle, too close to avoid a collision. Now traveling at a speed of 10 to 20 miles per hour, Widling's car struck the rear end of Carlson's car, pushing it forward several feet.

to turn green, was the car driven by plaintiff Josephine Maupin.

Carlson's car came to a stop for three to five seconds after being hit, according to one witness at trial. But then her car suddenly accelerated so quickly that the front end lifted two feet off the ground while thick black soot fumed from the exhaust pipes. Carlson hit Maupin's car at a speed of about 20 miles per hour, propelling Maupin's car into the car in front of her. Maupin's car was destroyed and Maupin suffered physical injuries.

Maupin settled her claim against Carlson and sued Widling for negligence. At trial the court over objections from Maupin instructed the jury on proximate cause (BAJI No. 3.75) rather than legal cause (BAJI No. 3.76). The court also gave BAJI instruction No. 3.79 on intervening cause. The jury reached a general verdict for the defendant.

Maupin seeks to reverse the judgment because the instructions confused the jury and shifted the burden of proof on the affirmative defense of superseding cause. Maupin also objects to the court's awarding the defendant certain expert witness fees.

DISCUSSION

I

At trial, crucial issues for the jury included causation, i.e., the logical connection between Widling's negligent conduct and the injuries sustained by Maupin and whether Carlson's conduct was a supervening cause. The intervening act of a negligent third person will cut off a defendant's liability (thus "supervening") if the intervening act (or the type or risk of harm caused by the intervening act) is unforeseeable or extraordinary. (Rest.2d Torts, §§ 440, 447; Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199, 60 Cal.Rptr. 499, 430 P.2d 57; Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 209, 186 Cal.Rptr. 847.)

The court gave to the jury BAJI No. 3.75, which defines "proximate cause" as that "which, in natural and continuous sequence, produces the injury, damage, loss or harm and without which the injury, damage, loss or harm would not have occurred." (Emphasis added.) The court declined to give the alternative instruction, BAJI No. 3.76, which defines "legal cause" as that "which is a substantial factor in bringing about the injury, damage, loss, or harm." (Emphasis added.)

The court also gave BAJI instruction No. 3.79 on supervening cause, which reads:

"If you find that defendant Alan Widling was negligent and that his negligence was a substantial factor in bringing about an injury to the plaintiff but that the immediate cause of injury was the negligent conduct of a third person, the defendant Alan Widling is not relieved of liability for such injury if:

"1. At the time of his conduct defendant Alan Widling realized or reasonably should have realized that a third person might act as he did; or the risk of harm suffered was reasonably foreseeable; or

"2. A reasonable person knowing the situation existing at the time of the conduct of the third person would not have regarded it as highly extraordinary that the third person had so acted; or

"3. The conduct of the third person was not extraordinarily negligent and was a normal consequence of the situation created by defendant Alan Widling." (Emphasis added.)

Maupin contends that the "natural and continuous sequence" of events requirement in BAJI No. 3.75 conflicts with the BAJI No. 3.79 instruction requiring that the defendant's negligence be a "substantial factor" in bringing about the injury. Maupin argues that the three to five second gap in time between Widling's collision into Carlson and Carlson's acceleration into Maupin could have been mistakenly seen by the jury as precluding causation because there was no "natural and continuous sequence" of events. The correct instruction, according to Maupin, would have been BAJI No. 3.76, which, like BAJI No. 3.79, uses the "substantial factor" test for causation and would not have confused the jury.

In determining whether the probable effect of a jury instruction was to mislead the jury and was so prejudicial as to require reversal, we review all circumstances of the case, including the evidence and the other instructions given. There are no precise formulas to follow. (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 671-72, 117 Cal.Rptr. 1, 527 P.2d 353; Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 660-61, 320 P.2d 500.) The factors to be considered include the degree of conflict in the evidence on the critical issues; whether respondent's argument to the jury may have contributed to the misleading effect; whether the jury requested a rereading of the instructions; the closeness of the jury's verdict; and the effect of other instructions in remedying the error. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 148 Cal.Rptr. 355, 582 P.2d 946.)

We do not, however, look for sufficiency of evidence in support of the verdict, nor do we assume that the jury accepted the facts most favorable to the prevailing party. We must assume that the jury might have believed the evidence favorable to the losing party. If we find that the error in instruction likely misled the jury and that if the correct instruction had been given the jury might have rendered a verdict favorable to that party, the judgment should be reversed. (Henderson v. Harnischfeger Corp., supra, 12 Cal.3d at p. 674, 117 Cal.Rptr. 1, 527 P.2d 353; 7 Witkin, Cal.Procedure (3d ed. 1985) Trial, § 295, p. 296.)

II

The term "proximate cause" does not fit within the confines of a clear definition. Justice Tobriner wrote, "[t]he concept of proximate causation has given courts and commentators consummate difficulty and has in truth defied precise definition." (State Comp. Ins. Fund v. Ind. Acc. Com. (1959) 176 Cal.App.2d 10, 20, 1 Cal.Rptr. 73.) Judges, even learned ones, attorneys, and law students have struggled with the concept. It has not been any easier for jurors although they usually have the advantage of common sense. (See, e.g., Akers v. Kelley Co. (1985) 173 Cal.App.3d 633, 658, 219 Cal.Rptr. 513, where the appellate court noted the difficulty in concentrating on the topic of proximate cause for even an hour or two.)

The confusion in part stems from the use of the term "proximate cause" to mean "causation in fact." Causation in fact asks whether the defendant's negligent conduct was the "necessary antecedent" to the injury, without which no injury would have occurred. (Prosser, Proximate Cause in California (1950) 38 Cal.L.Rev. 369, 375; Prosser & Keeton, Torts (5th ed. 1984) § 41, p. 265.) It is but an element of proximate cause. (Smith v. Lewis (1975) 13 Cal.3d 349, 360-61, fn. 9, 118 Cal.Rptr. 621, 530 P.2d 589; Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 382, 165 Cal.Rptr. 449.)

Proximate cause asks the larger, more abstract question: should the defendant be held responsible for negligently causing the plaintiff's injury? (Prosser & Keeton, supra, at p. 266.) Whether a defendant's conduct is an actual cause of a plaintiff's harm is a question of fact, but the existence and extent of a defendant's liability is a question of law and social policy. (Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 222-23, 157 P.2d 372 (conc. opn. Traynor, J.); Prosser & Keeton, supra, at p. 264.) Proximate cause can mean more than cause in fact. (Jackson v. City of San Diego (1981) 121 Cal.App.3d 579, 588, 175 Cal.Rptr. 395.)

Whether an intervening cause will cut off a defendant's liability (supervening cause) is another consideration in determining whether proximate cause exists. Supervening cause is a question of policy to be considered only after defendant is found to be the cause in fact of the injury. (Ewart v. Southern Cal. Gas Co. (1965) 237 Cal.App.2d 163, 169, 46 Cal.Rptr. 631; Prosser & Keeton, supra, § 44 at p. 301.)

There are two widely recognized tests for establishing cause in fact. The "but for" or "sine qua non" rule, unfortunately labeled "proximate cause" in BAJI No. 3.75, asks whether the injury would not have occurred but for the defendant's conduct. The other test, labeled "legal cause" in BAJI No. 3.76, asks whether the defendant's conduct was a substantial factor in bringing about the injury. (Prosser & Keeton, supra, § 41 at pp. 265-268.) In California, trial judges have used one test or the other. (Com. to BAJI No. 3.76, p. 95; Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 346, 160 Cal.Rptr....