ATTORNEY FOR APPELLANT
Cornelius J. Harrington
ATTORNEY FOR APPELLEE
SUPREME COURT OF INDIANA
CONTROL TECHNIQUES, INC., )
a/k/a Warner Control Company and/ )
or Warner Control Techniques, )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 45S03-0202-CV-97
) Indiana Court of Appeals
JOHN W. JOHNSON and ) Cause No. 45A03-9905-CV-198
LINDA JOHNSON, )
Appellees (Plaintiffs Below). )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Gerald N. Svetanoff, Judge
Cause No. 45D04-9203-CT-229
ON PETITION TO TRANSFER
February 5, 2002
This case deals with the relationship between the Comparative Fault Act and the
common law tort doctrine of superseding or intervening cause. The requirement of
causation as an element of liability for a negligent act includes the requirement
that the consequences be foreseeable. A superseding cause that forecloses liability of
the original actor is, by definition, not reasonably foreseeable by a person standing
in the shoes of that actor. Accordingly, the doctrine of superseding cause
is simply an application of the larger concept of causation. Because an
instruction on superseding cause would only further clarify proximate cause, the trial courts
failure to give a separate jury instruction on superseding cause was not reversible
error. Factual and Procedural Background
John Johnson sustained serious burns to his arms and face in December of
1991 while measuring the voltage of a circuit breaker at the LTV Steel
Plant in East Chicago, Indiana. A jury awarded him $2,000,000 and allocated
eighty percent liability to Meade Electric Co., Inc., which installed the breaker, fifteen
percent to Johnson, and five percent to Control Techniques, Inc. (Control), which designed
and built the circuit breaker. Control was thus ordered to pay $100,000,
representing its five percent of the total.
We grant transfer to discuss one of the four issues Control raised on
appeal: whether the trial court committed reversible error in refusing Controls tendered jury
instruction on the doctrine of superseding or intervening cause. Essentially, Control contended
that Meades method of installing the breaker was a superseding cause of the
accident that foreclosed any liability Control may have had from the breakers design
and manufacture. The Court of Appeals concluded that the instructions on fault
causation adequately covered the subject. Control Techniques, Inc. v. Johnson, 737 N.E.2d
393, 402 (Ind. Ct. App. 2000). We essentially agree with the Court
of Appeals, but grant transfer because of varying formulations of this issue reflected
in recent Court of Appeals opinions.
Superseding or Intervening Causation
The doctrine of superseding or intervening causation has long been part of Indiana
common law. It provides that when a negligent act or omission is
followed by a subsequent negligent act or omission so remote in time that
it breaks the chain of causation, the original wrongdoer is relieved of liability.
Vernon v. Kroger Co., 712 N.E.2d 976, 981 (Ind. 1999). A
subsequent act is superseding when the harm resulting from the original negligent act
could not have reasonably been foreseen by the original negligent actor. Id.
(quoting Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 520 (Ind. 1994)).
Whether the resulting harm is foreseeable such that liability may be imposed on
the original wrongdoer is a question of fact for a jury.
The plaintiffs argue, and the Court of Appeals agreed, that the doctrine has
been incorporated into Indianas Comparative Fault Act, which allocates damages among the parties
according to their respective negligence. They argue that the need for the
doctrine is obliterated because a defendant is liable only for the amount of
damages traceable to his or her conduct and that a simple jury instruction
on proximate cause is sufficient. Control responds that cases subsequent to the
passage of the Act have discussed the doctrine favorably. It argues that
there was evidence in the record to support an instruction on superseding causation
and, therefore, it was reversible error for the trial court to refuse to
give the instruction.
The Comparative Fault Act was adopted in Indiana in 1983 and went into
effect in 1985. Ind. Code § 34-4-33-1 to -12 (1993) (recently recodified
at I.C. 34-51-2). Some version of comparative fault has been adopted by
statute in well over half of the fifty states, and several other jurisdictions
have adopted comparative fault principles by judicial decisions. See Matthew Bender, 3
Comparative Negligence app. I (2001). The effect of comparative fault on various
common law defenses to tort claims has since been a topic of debate
in this state, e.g., Heck v. Robey, 659 N.E.2d 498, 504 (Ind. 1995),
and other jurisdictions that have adopted a comparative fault scheme, e.g., Torres v.
El Paso Elec. Co., 987 P.2d 386, 391 (N.M. 1999). In particular,
many courts have addressed the common law doctrines of assumption of risk and
last clear chance. The superseding cause doctrine has been the focus of
less debate, but, in this jurisdiction, that doctrine has been viewed by some
as subsumed in the Act, and by others as retaining continued viability.
Compare Heck, 659 N.E.2d at 504 (As a comparative fault statute, the [Act]
eliminated contributory negligence as a complete defense, as well as other common-law defenses.)
(emphasis in original), and L.K.I. Holdings, Inc. v. Tyner, 658 N.E.2d 111, 120
(Ind. Ct. App. 1995) (The comparison of fault inherent in the doctrine of
intervening cause has been incorporated into our comparative fault system.), with Vernon, 712
N.E.2d at 981 (The law also recognizes the doctrine of intervening and superseding
cause.), and Straley v. Kimberly, 687 N.E.2d 360, 364 (Ind. Ct. App. 1997)
(discussing doctrine of intervening cause).
For the reasons expressed below, we agree with the Court of Appeals that
no separate instruction is required. In capsule form, we conclude that the
doctrines of causation and foreseeability impose the same limitations on liability as the
superseding cause doctrine. Causation limits a negligent actors liability to foreseeable consequences.
A superseding cause is, by definition, one that is not reasonably foreseeable.
As a result, the doctrine in todays world adds nothing to the
requirement of foreseeability that is not already inherent in the requirement of causation.
Under Indiana law, a negligent defendant may be liable for a plaintiffs injury
if his or her action is deemed to be a proximate cause of
that injury. Whether or not proximate cause exists is primarily a question
of foreseeability. As this Court recently stated, the issue is whether the
injury is a natural and probable consequence, which in the light of the
circumstances, should have been foreseen or anticipated. Bader v. Johnson, 732 N.E.2d
1212, 1218 (Ind. 2000). As a result, liability may not be imposed
on an original negligent actor who sets into motion a chain of events
if the ultimate injury was not reasonably foreseeable as the natural and probable
consequence of the act or omission. Havert v. Caldwell, 452 N.E.2d 154,
158 (Ind. 1983); see also 57 Am. Jur. 2d Negligence § 596 (1989)
([T]he question of [superseding] cause is simply a question of whether the original
act of negligence or an independent intervening cause is the proximate cause of
an injury.). Section 442 of the Restatement of the Law of Torts
(Second) also lists factors to be considered in determining whether the intervening force
may be deemed a superseding one:
(a) the fact that its intervention brings about harm different in kind from
that which would otherwise have resulted from the actors negligence;
(b) the fact that 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;
(c) the fact that the intervening force is operating independently of any situation
created by the actors negligence, or, on the other hand, is or is
not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to
a third persons act or his failure to act . . . .
The sum of all this is that, in order to be liable for
a plaintiffs injury, the harm must have been reasonably foreseeable by the defendant,
in this case the original negligent actor. This is the case if
there is only one negligent act or omission and it is equally
true in the case of a negligent act or omission followed by a
superseding act or omission. These propositions were valid both before and after
the adoption of the Comparative Fault Act.
See Torres, 987 P.2d at
392 ([T]he doctrine [of superseding cause] reflects traditional notions of proximate causation and
the need to limit potentially limitless liability arising from mere cause in fact.).
The Comparative Fault Act addressed two major concerns. Before adoption of the
Act, a defendant whose negligence contributed only slightly to the plaintiffs loss could
be required to pay for all of the plaintiffs damages and the plaintiff
could proceed against and collect from the defendant of choice. See Barker
v. Cole, 396 N.E.2d 964, 971 (Ind. Ct. App. 1979). Because there
was generally no right of contribution, a defendant only slightly responsible could be
liable for the entire amount of damages. Similarly, comparative fault abolished the
harsh common law rule that a plaintiff contributorily negligent to any degree was
barred from all recovery. See Heck, 659 N.E.2d at 504; L.K.I. Holdings,
Inc., 658 N.E.2d at 119; see also Sizemore v. Montana Power Co., 803
P.2d 629, 634 (Mont. 1990). In short, the Act did not change
the standard for imposing liability. Rather, it changed the apportionment of the
damages flowing from that liability. Enactment of comparative fault preserved the requirement
of proximate cause as a requirement of liability.
Under the Comparative Fault Act, liability is to be apportioned among persons whose
fault caused or contributed to causing the loss in proportion to their percentages
of fault as found by the jury. I.C. § 34-51-2-8; Cahoon v.
Cummings, 734 N.E.2d 535, 541 (Ind. 2000). As a result, the jury
is first required to decide whether an actors negligence was a proximate cause
of the plaintiffs injury. To say there is a superseding cause foreclosing
one actors liability is to say that the superseding event was not reasonably
foreseeable to that actor. This is simply another way of saying, in
comparative fault terms, that the original actor did not cause the harm and
receives zero share of any liability.
Here, the trial court refused Controls jury instruction on intervening cause, which is
drawn verbatim from Indiana Pattern Jury Instructions-Civil 5.41 (2d ed. 2000):
An intervening cause is an action by a third party or agency that
breaks the causal connection between the defendants alleged negligence and the plaintiffs injury.
This intervening cause then becomes the direct cause of the injury.
If you decide that the injury to the plaintiff would not have occurred
without the action of the third party or agency, then the plaintiff cannot
recover from the defendant.
However, if you find that the defendant acted negligently and could have reasonably
foreseen the actions of the third party or agency, then the defendant can
still be liable for the defendants injuries.
In reviewing a trial courts decision to give or to refuse tendered instructions,
this Court considers: (1) whether the instruction correctly states the law; (2) whether
there was evidence in the record to support the giving of the instruction;
and (3) whether the substance of the instruction is covered by other instructions
which are given.
Fleetwood Enters., Inc. v. Progressive N. Ins. Co., 749
N.E.2d 492, 495 (Ind. 2001). Conclusion
We conclude that the trial court did not abuse its discretion in refusing
Controls instruction. There is evidence in the record to support the giving
of an instruction on superseding cause. However, to the extent that this
instruction is a correct statement of the law, the substance of it was
covered in the courts final instruction number 17: Proximate cause is that cause
which produces injury complained of and without which the result would not have
occurred. That cause must lead in a natural and continuous sequence to
the resulting injury.
Trial courts may properly elect to give an instruction on this doctrine if
they conclude it would aid the jury in determining liability. However, this
call is better left to the discretion of the trial courts, as they
are in the best position to determine whether an instruction on superseding cause
is useful. It was not error to instruct only on causation.
We conclude that the adoption of the Comparative Fault Act did not affect
the doctrine of superseding cause, but on the facts presented here the trial
court did not commit reversible error in refusing to instruct the jury on
the doctrine. On all other issues, the Court of Appeals is summarily
affirmed. Former Ind. Appellate Rule 11(B) (now App. R. 58(A)(2)). The
judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN and RUCKER, JJ., concur.
DICKSON, J., dissents with separate opinion.
INDIANA SUPREME COURT
CONTROL TECHNIQUES, INC., )
a/k/a Warner Control Company and/ or )
Warner Control Techniques, )
v. ) 45S03-0202-CV-97
JOHN W. JOHNSON and )
LINDA JOHNSON, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Gerald N. Svetanoff, Judge
Cause No. 45D04-9203-CT-229
On Petition To Transfer
February 5, 2002
DICKSON, Justice, dissenting.
I agree that the adoption of the Indiana Comparative Fault Act did not
affect the doctrine of superseding cause, and that the evidence in the record
in this case supports giving an instruction on superseding cause. I dissent,
however, as to whether the defendant's issue of superseding cause was adequately covered
by other instructions, and as to whether the Comparative Fault Act abrogated the
common law principle of joint and several liability for joint tortfeasors.
I believe that the majority mistakenly concludes that the trial courts instruction defining
proximate cause was adequate to cover the substance of the defendant's tendered but
rejected instruction on superseding cause. As acknowledged by the majority, under the
facts presented by the record, the defendant was entitled to have the jury
informed that an unforeseeable action by a third party or agency that breaks
the causal connection between the defendant's alleged negligence and the plaintiff's injury then
becomes the direct cause of the injury. This principle of law was
not adequately covered by the trial court's instruction providing the definition of proximate
cause, notwithstanding inclusion of the requirement that the cause "must lead in a
natural and continuous sequence to the resulting injury." Record at 112.
I therefore conclude that the trial court erred in refusing to give the
defendant's tendered superseding cause standard pattern jury instruction.
I also dissent from the majority's unnecessary excursion into the issue of apportionment
of liability under the Indiana Comparative Fault Act, and I specifically quarrel with
its belief that the Act altered the common law rule of joint and
several liability among joint tortfeasors.
The majority asserts that the Comparative Fault Act addressed two major concerns: (1)
allocation of liability among multiple tortfeasors and (2) abolition of the doctrine of
contributory negligence. To the contrary, in
Bowles v. Tatom, 546 N.E.2d 1188
(Ind. 1989), this Court declared:
Furthermore, the nature of and procedures established by the Indiana Comparative Fault Act
reveal that its primary function is to modify the common law rule of
contributory negligence under which a plaintiff only slightly negligent was precluded from recovery
of any damages, even as against a relatively highly culpable tortfeasor. In
abrogating this harsh rule, the Act allows recovery but reduces such recovery in
proportion to any fault of the plaintiff which contributed to the damages. .
. . In furtherance of these objectives, the Act establishes a mechanism by
which the factfinder is required to specifically determine the relative degree of the
plaintiff's fault with respect to others.
This proportional allocation of fault is
the means by which the Act's objectives are reached, not the ends to
which it aspires.
Id. at 1190 (emphasis added). We did not find the allocation of
limited liability among multiple tortfeasors to be a purpose or function of the
Act. Significantly, in footnote 1, we stated: "[T]he Indiana Comparative Fault
Act does not expressly prescribe whether the common law principle of joint and
several liability is abrogated in cases to which the Act is applicable.
This is an unresolved issue which has not yet been addressed by amendatory
legislation or by this Court." Id. at n.1
Our rejection of liability allocation as a purpose of the Comparative Fault Act
is further demonstrated in Indianapolis P&L v. Snodgrass, in which we quoted with
approval the above passage from Bowles and held that the Court of Appeals
"[e]rroneously impart[ed] to the Act the goal of full and complete proportional allocation
of fault." Snodgrass, 578 N.E.2d 669, 672 (Ind. 1991). Likewise, in
Mendenhall v. Skinner and Broadbent Co., we repeated, "The primary objective of the
Act was to modify the common law rule of contributory negligence under which
a plaintiff was barred from recovery where he was only slightly negligent."
728 N.E.2d 140, 142 (Ind. 2000).
The majority states that, under the Act,
liability is to be apportioned among
tortfeasors in proportion to their percentages of fault as found by the jury.
I strongly disagree. As noted in Bowles, the fault determination is
necessary to enable the jury to determine a plaintiff's recovery as reflecting the
relative degree of plaintiff's fault. But the Act does not require that
the resulting fault percentages also be used to limit a joint tortfeasor's liability.
The Comparative Fault Act, adopted in derogation of the common law, must be
Snodgrass, 578 N.E.2d at 673. "It is well settled
that the legislature does not intend by a statute to make any change
in the common law beyond what it declares either in express terms or
by unmistakable implication." Id. at 673; see also Durham ex rel. Estate
of Wade v. U-Haul Int'l,745 N.E.2d 755, 767 (Ind. 2001); S. Bend Cmty.
Sch. Corp. v. Widawski, 622 N.E.2d 160, 162 (Ind. 1993); N. Ind. Pub.
Serv. Co. v. Citizens Action Coalition of Ind., Inc., 548 N.E.2d 153, 159
(Ind. 1989); State Farm Fire & Cas. Co. v. Structo Div., King Seeley
Thermos Co., 540 N.E.2d 597, 598 (Ind. 1989).
Under common law, joint tortfeasors are subject to both joint and several liability,
and a tortfeasor may be "liable for the entire loss sustained by the
plaintiff, even though [the tortfeasor's] act concurred or combined with that of another
wrongdoer to produce the result."
W. Page Keeton et. al., Prosser and
Keeton on the Law of Torts § 47 at 328 (5th ed. 1984);
see also Cooper v. Robert Hall Clothes, Inc., 390 N.E.2d 155, 157 (Ind.
1979); Hoesel v. Cain, 222 Ind. 330, 345, 53 N.E.2d 165, 171 (Ind.
1944); Kizer v. Hazelett, 221 Ind. 575, 576-77, 49 N.E.2d 543, 544 (Ind.
1943); Jackson v. Record, 211 Ind. 141, 145, 5 N.E.2d 897, 898-99 (Ind.
The Indiana Comparative Fault Act did not by express terms or unmistakable implication
abrogate the common law principle of joint and several liability for joint tortfeasors.
Furthermore, despite our decisions beginning in 1989 noting this omission, the legislature
has not since chosen to enact such abrogation. For these reasons, I
dissent to the majority's assertion that the Act requires liability to be apportioned
among joint tortfeasors in proportion to their fault.
Superseding and intervening have been used interchangeably by this Court to refer to
an act of another that cuts off the liability of the original actor.
E.g., Vernon v. Kroger Co., 712 N.E.2d 976, 981 (Ind. 1999).
According to Blacks Law Dictionary, any subsequent negligent act is an intervening act,
but only if the act is deemed superseding will the original negligent actor
be relieved of liability. Blacks Law Dictionary 212 (7th ed. 1999).
Two other factors, dealing with acts subsequent to the first intervening
act and intentional torts or criminal acts, are also listed
Because we conclude that this instruction was properly refused for other reasons,
we reserve judgment on the issue of whether the second paragraph is a
correct statement of law. However, we note that this paragraph arguably injects
an erroneous but for test into the causation analysis.
Footnote: Although this Court has never directly confronted and answered whether the Act
abrogates joint and several liability, I acknowledge that there exists dicta assuming its
Cahoon v. Cummings, 734 N.E.2d 535, 541 (Ind. 2000).
In contrast to the Comparative Fault Act, the Indiana Products Liability Act
explicitly abrogates the common law principle of joint and several liability in products
liability cases. See Ind.Code § 34-20-7-1.