Legal Causation Intervening Act

The law in California is that foreseeable intervening acts do not immunize the initial actor from liability. (Richardson v. Ham (1955) 44 Cal. 2d 772, 777, 285 P.2d 269; Mosley v. Arden Farms Co. (1945) 26 Cal. 2d 213, 218, 157 P.2d 372.) "Causation in the law of negligence is not determined by a linear projection from a 'but for' premise. Instead, it is expressed in terms of 'foreseeability' and is limited by the policy that cause must be 'proximate.' the problem is complex, and has bedeviled many." (Brewer v. Teano (1995) 40 Cal. App. 4th 1024, 1030.) As the court in Brewer noted, the Restatement Second of Torts sets out the rules for evaluating the issue of whether the acts of another party intervene in the chain of causation in such a manner as to prevent the original actor from being liable for harm to another. (40 Cal. App. 4th at p. 1031.) Courts in other states have reached conflicting results in cases involving injuries sustained as a result of a plaintiff's attempt to compensate for a landlord's wrongful termination of hot water or heat. (Annot., Landlord and Tenant: Violation of Statute or Ordinance Requiring Landlord to Furnish Specified Facilities or Services as Ground of Liability for Injury Resulting from Tenant's Attempt to Deal with Deficiency (1988) 63 A.L.R.4th 883.) The results turn on differing state laws and the particular court's view of whether an injury was foreseeable or the result of a superseding independent act. (See, e.g., Enis v. Ba-Call Bldg. Corp. (7th Cir. 1980) 639 F.2d 359 [causation is jury question where tenant boiled hot water on stove to compensate for lack of heat and water spilled on child]; Bennett M. Lifter, Inc. v. Varnado (Fla.Dist.Ct.App. 1985) 480 So. 2d 1336 [proximate cause is jury question where child collides with grandmother transporting hot water to the bathroom]; Southeast Bank v. J.A.M.A. Mobile Home Parks (Fla.Dist.Ct.App. 1986) 490 So. 2d 1057 [causation sufficiently alleged where trailer park owner's negligence caused termination of electric service, leading to tenant's use of candles which started fire in which children were killed] contra, Aguirre v. Adams (Kan.Ct.App. 1991) 15 Kan. App. 2d 470, 809 P.2d 8 [landlord not liable for failure to provide hot water because no causation as matter of law where mother's negligent supervision of child resulted in burn by hot water in bathtub]; Moreno v. Balmoral Racing Club, Inc. (Ill.Ct.App. 1991) 217 Ill. App. 3d 365, 577 N.E.2d 179, 160 Ill. Dec. 303 [operating charcoal grill indoors to compensate for landlord's failure to provide heat not reasonably foreseeable and breaks causal link]; Faris v. Potomac Elec. Power Co. (D.D.C. 1991) 753 F. Supp. 388 [plaintiff's act in falling asleep with candles lit is intervening cause which supersedes power company's responsibility after properly noticed termination of power]; Martinez v. Lazaroff (N.Y.Ct.App. 1979) 48 N.Y.2d 819, 399 N.E.2d 1148, 424 N.Y.S.2d 126 [father's act of transporting pot of boiling water from stove to bathroom which spilled on child was intervening act that cut off liability of landlord].) "An intervening force is one which actively operates in producing harm to another after the actor's negligent act or omission has been committed." ( Rest.2d Torts, 441, subd. (1).) "Where the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause." (Rest.2d Torts, 442A.) As stated by Witkin: "Where, subsequent to the defendant's negligent act, an independent intervening force actively operates to produce the injury, the chain of causation may be broken. It is usually said that if the risk of injury might have been reasonably foreseen, the defendant is liable, but that if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen and hence not foreseeable, it is a superseding cause, and the defendant is not liable." (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts 975, p. 366.) Negligence alone does not make a third party's intervention a superseding cause. ( Rest.2d Torts, 447.) If the intervening act ". . . is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent" a third party's negligent act does not supersede the liability of the initial actor. ( Rest.2d Torts, 447, subd. (c).) Even intervening criminal conduct may not be a superceding cause, thereby breaking the chain of causation. ". . . It is settled, however, that 'If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby." (Richardson v. Ham, supra, 44 Cal. 2d at p. 777 [citing Rest.2d Torts, 449].)