(dissenting).
In this multi-defendant wrongful death action, I believe it was prejudicial error for the trial judge to give the jury a “but for” causation instruction. Accordingly, I respectfully dissent from Part I of the majority opinion.
The trial court instructed the jury not only that plaintiff must prove that each defendant’s negligence played a substantial part in bringing about the death of Fehling, but also that before causation on the part of Dr. Levitan could be found, the jury must find that Fehling would not have died but for his negligence. The same test was to be applied to Unity Hospital.
The jury was thus faced with a dilemma when answering the special verdict questions. Having found Dr. Levitan negligent, the jury was required to answer the question of whether his negligence constituted a direct cause of the death. Even if the jury found that Dr. Levitan’s negligence played a substantial part in causing the death, it could not be considered to be a direct cause under the “but for” instruction if Unity Hospital’s negligence was also sufficient to cause the death by itself. As a result, if the jury found that each of the defendant’s negligence acting at the same time was sufficient to independently cause the death, then under the “but for” instruction, neither of the defendant’s negligence could be found to be the direct cause.
It is for the purpose of avoiding this problem that the “substantial factor” test was adopted and applied in cases where two or more causes are sufficient to cause a death. See Prosser and Keeton on the Law of Torts § 41, at 265-68 (5th ed.1984). At trial, plaintiff objected to the court’s decision to give the “but for” instruction. The Minnesota Jury Instruction Guides, adopting the view in Restatement (Second) of Torts § 431 (1965), set forth instructions on direct cause and on concurring cause, neither of which include the “but for” test. See JIG II, 140 G-S; JIG II, 141 G-S. The trial court’s instructions, however, added the “but for” test to the “substantial factor” test. The instruction as given further complicated an already difficult and confusing rule of law, and as such constituted reversible error.
I also must dissent from Part II. The negative answer given by the jury to the causation question is inconsistent with the jury’s award of $1 million in response to the damages question. The instruction given by the judge stated that damages were limited to pecuniary loss “attributable to negligent conduct” of the defendants. The jury, having answered that the defendants were negligent, most likely intended that the plaintiff recover the $1 million damage award. If the jury had intended that the plaintiff recover no damages, the answer to the damages question would have been zero dollars.
I would grant a new trial.