dissenting.
Crown Derrick contends the trial court erred in refusing to submit an instruction on new and independent cause. The majority agrees and remands for a new trial. I disagree.
Crown Derrick claims “other parties and entities made significant changes to the open hole that effectively intervened as causative factors, independent of any actions or inactions on the part of Crown Derrick.” Crown Derrick relies upon the following evidence:
• the rope barrier erected by Crown Derrick was removed by another party;
• an electrical junction box was placed over the hole;
• another party removed the box;
• another party then placed a single-stranded rope around the hole; and
• that rope may, or may not, have been down at the time Dew fell through the hole.
Crown Derrick’s argument is premised on the assumption that the rope barrier it erected was sufficient. It is the removal of that barrier that Crown Derrick puts forth as a superseding and intervening cause. However, the Dew’s pleadings alleged Crown Derrick was negligent in:
a. Failing to warn Decedent of the dangerous existence of the hole;
b. Failing to establish a barricade or preventative devices to prevent Decedent from entering the area of the hole in question;
c. Failing to take reasonable precautions for Decedent’s safety; and
d. Failing to correct the hole when it was discovered.
Crown Derrick ignores the very real possibility the jury found the rope barrier it *538erected did not constitute an adequate warning of the hole, that it was not a “barricade” and would not prevent entrance into the area, that it was not a reasonable precaution, or that it did not “correct” the hole. Accordingly, any analysis of whether an intervening cause arose must include the initial failure to install the safety gate.
Six factors 2 are instructive in determining when an intervening force rises to the level of a superseding cause:
(a) the fact that the intervening force brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;
(b) the fact that the intervening force’s 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 the force’s operation;
(c) the fact that the intervening force is operating independently of any situation created by the actor’s 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 person’s act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.
Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex.1999). See also Humble Oil & Ref. Co. v. Whitten, 427 S.W.2d 313, 315 (Tex.1968) (citing Restatement (Seoond) of ToRts § 442 (1965)); James v. Kloos, 75 S.W.3d 153, 161-62 (Tex.App.-Fort Worth 2002, no pet.); and Rodriguez v. Moerbe, 963 S.W.2d 808, 820 (Tex.App.-San Antonio 1998, pet. denied). In Phan Son Van, the Texas Supreme Court considered these factors, concluding “to be a superseding cause, the intervening force must not be ordinarily or reasonably foreseeable.” Phan Son Van, 990 S.W.2d at 754 (citing Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992); and Knoll v. Neblett, 966 S.W.2d 622, 633-34 (Tex.App.-Houston [14th Dist.] 1998, pet. denied)).
In this instance, the removal of the rope barrier did not bring about a harm different in kind from that which would otherwise would have resulted, i.e. someone falling through the hole. Neither the removal of the rope barrier nor the consequences (someone falling through the hole) are extraordinary in view of the circumstances, i.e., the hole being in the middle of a walkway. And the removal of the rope barrier did not operate independently of the situation created by Crown Derrick’s failure to install the safety gate. Thus the first three factors argue against finding a superseding cause.
In Rodriguez v. Moerbe, 963 S.W.2d at 820, the court rejected the defendant’s claim that a third party’s act created a new and intervening cause. The court reflected:
Usually, the criminal conduct of a third party is a superseding cause relieving the negligent actor from liability. However, the tortfeasor’s negligence will not be excused where the criminal conduct is a foreseeable result of such negligence.
If the injury is caused wholly by an unforeseen act or omission, independent of and having no causal relation to the wrongful act or omission made the foundation of an action, then the result must *539be attributed to the independent cause and the original wrongdoer is relieved of liability. Even a non-negligent act may be an independent intervening act that breaks the causal connection between the original negligence and the injury.
But the intervention of an unforeseen cause of injury does not necessarily mean there is a new and independent cause of such character as to constitute a superseding cause that will relieve a defendant from liability. If the chain of causation is continuous or unbroken, even an unforeseeable intervening cause may be a concurring cause of the injury. An intervening cause that is set in motion by the original wrongdoer can never supersede the original act. The issue of intervening cause as a bar to a defendant’s liability is dependent on whether the forces generated by the defendant’s negligence have “come to rest.”
Our supreme court has long held that the intervention of an unforeseen and unexpected cause is not sufficient to relieve a wrongdoer from the consequences of his negligence if “such negligence directly and proximately cooperates with the independent cause in the resulting injury.”
Id. at 820-21 (citations omitted) (footnotes omitted).
In the present case, the injury was not caused wholly by an unforeseen act having no causal relation to the initial wrongful act because the removal of the rope barrier was not unforeseeable and would have been immaterial but for the failure to install the safety gate. Further, even if the removal of the rope barrier was unforeseeable, the chain of causation is continuous thus the intervening act is only a concurring cause of the injury. The intervening act was set in motion by the original wrongdoer, Crown Derrick, when it failed to place the safety gates around the opening and therefore can never supersede the original act. The intervening act is not a bar to Crown Derrick’s liability because the forces generated by Crown Derrick’s negligence in failing to install the safety gates around the hole never “came to rest.”
In Eoff v. Hal and Charlie Peterson Foundation, 811 S.W.2d 187, 192-93 (Tex.App.-San Antonio 1991, no writ), the court determined thé evidence did not warrant giving a new and independent cause instruction. Id. at 193. The court noted the Eoffs’ cause of action was based upon the conduct of the staff of the emergency room on May 3,1985, and “[i]f the hospital negligently caused the damage by failing to treat Mrs. Eoff, it would be responsible for the damages flowing from that failure to act.” Id. Likewise, in the present case, plaintiffs’ claims are based upon Crown Derrick’s failure to install the safety gates and Crown Derrick is responsible for the damages flowing from that act.
In James v. Kloos, 75 S.W.3d at 161, 162-64, the court found the trial court erred in submitting an instruction on new and independent cause, stating:
In determining proximate cause, Texas courts distinguish between a new and independent cause and a concurrent act. A concurrent act cooperates with the original act in bringing about the injury and does not cut off the liability of the original actor. A new and independent cause, sometimes referred to as a superseding cause, however, is an act or omission of a separate and independent agency that destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes the immediate cause of such injury. An intervening cause that is reasonably foreseeable by the defendant, though, is not *540a new and independent cause that breaks the chain of causation.
Id. at 161 (footnotes omitted). In James, the plaintiff claimed the instruction was improper because the defendant presented no evidence of an intervening force and because no intervening act brought about a harm that was different or extraordinary from what would normally result from the defendant’s negligence. The court determined the instruction should not have been given because
[w]hile the evidence [defendant] relies on may contradict [plaintiffs] position that [defendant] was negligent, it does not establish an act or omission of a separate and independent agency that destroyed the causal connection between [defendant’s] allegedly negligent act and [plaintiffs] injury. Essentially, [defendant] failed to present any evidence that [plaintiffs] injury was not a reasonably foreseeable result or natural consequence of the incident in question.
Id. at 163.
Here, the acts relied upon by Crown Derrick are not intervening, but concurrent. The removal of the rope barrier cooperated with the original act (the failure to install the safety gates) in bringing about the injury, and does not cut off Crown Derrick’s liability. Further, the intervening force was reasonably foreseeable by Crown Derrick and therefore is not a new and independent cause that broke the chain of causation. Crown Derrick did not present any evidence that the injury was not a reasonably foreseeable result or natural consequence of Crown Derrick’s failure to install the safety gates.
In the case of J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 664-65 (Tex.App.Fort Worth 1999, pet. denied), appellants claimed the trial court erred in denying their request for an instruction on new and independent cause. That case involved a trucking accident. Id. at 661-62. A driver for J. Wigglesworth Company, Kirby, missed his exit causing him to reach a bridge in a construction zone that was too narrow for his truck. Id. at 662. Kirby stopped, blocking his lane and backing traffic up for approximately 800 yards. At the end of the backup, Roger Dick stopped his eighteen wheeler. Michael Peeples was driving a truck behind Dick and came to a stop behind it. Sheryl Harmon could not stop her eighteen wheeler in time and struck Peeples truck, driving it into the back of Dick’s truck. Id. Peeples sued appellants, J. Wigglesworth Company, Harmon and Harmon’s employer. A jury found appellants twenty percent negligent, and Harmon and her employer eighty percent negligent. In finding the trial court did not err in refusing to instruct the jury on new and independent cause, the court recognized:
A new and independent cause is some act or omission of a separate and independent agency that destroys the causal connection between the defendant’s original negligent act and the occurrence in question. However, if an intervening cause was reasonably foreseeable by the defendant in the exercise of ordinary care, it cannot be considered a new and independent cause that will break the chain of causation. The issue of an “intervening cause” as a bar to a defendant’s liability is also dependent on whether the defendant’s negligence and the forces generated by that negligence have come to a rest.
Id. at 665 (citations omitted). The court found
at the time of Peeples’s injuries, Kirby’s negligence and the effects thereof were still in motion. Furthermore, this is precisely the type of intervening act (i.e., a wreck involving a third party) that Kirby, in the exercise of ordinary care, could reasonably foresee would result from missing his exit, blocking traffic, *541and backing up his eighteen wheeler in a construction zone. Because it was reasonably foreseeable, as a matter of law Harmon’s act could not be a new and independent cause.
Id.
Here, there is no point in time at which Crown Derrick’s negligence in failing to install the safety gates came to rest. Furthermore, the removal of the rope barrier is precisely the type of intervening act Crown Derrick could reasonably foresee would result from its failure to install the safety gates. Because it was reasonably foreseeable, the act could not be a new and independent cause as a matter of law.
In light of the evidence and the above authority, I cannot say the trial court’s decision to deny Crown Derrick’s request for an instruction on new and independent cause was arbitrary or unreasonable or that the trial court acted without reference to any guiding rules or principles. See J. Wigglesworth Co., 985 S.W.2d at 664. I would hold the trial court did not abuse its discretion in refusing to submit the proposed instruction, overrule Crown Derrick’s second point of error and affirm the trial court’s judgment.
. The majority opinion only addresses the fifth factor, (e).