Control Techniques, Inc. v. Johnson

ATTORNEY FOR APPELLANT

Cornelius J. Harrington
Highland, Indiana



ATTORNEY FOR APPELLEE

Nick Katich
Merrillville, Indiana


__________________________________________________________________


                                   IN THE



                          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
            v.                    )
                                  )     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

BOEHM, Justice.

      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
court’s 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
Control’s tendered jury  instruction  on  the  doctrine  of  superseding  or
intervening cause.  Essentially, Control contended that  Meade’s  method  of
installing the  breaker  was  a  superseding  cause  of  the  accident  that
foreclosed any liability Control may have had from the breaker’s 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.[1]  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 Indiana’s 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  actor’s  liability  to  foreseeable  consequences.   A
superseding  cause  is,  by  definition,  one   that   is   not   reasonably
foreseeable.  As a result, the doctrine in today’s  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
plaintiff’s 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  actor’s
      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 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 his failure to act . . . .[2]

The sum of all this is that,  in  order  to  be  liable  for  a  plaintiff’s
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 plaintiff’s loss could be required to pay for all of the  plaintiff’s
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 actor’s negligence  was  a  proximate
cause of the plaintiff’s injury.  To say  there  is  a  “superseding  cause”
foreclosing one actor’s 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  Control’s   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   defendant’s   alleged
      negligence and the plaintiff’s 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.[3]
      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 defendant’s injuries.

      In reviewing a trial court’s 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).
      We conclude that the trial court  did  not  abuse  its  discretion  in
refusing Control’s 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  court’s  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.
                                 Conclusion
      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.







                                   In The


                            INDIANA SUPREME COURT





      CONTROL TECHNIQUES, INC.,    )
      a/k/a Warner Control Company and/ or    )
      Warner Control Techniques,        )
           Defendant-Appellant,         )
                                       )
           v.                           )    45S03-0202-CV-97
                                       )
      JOHN W. JOHNSON and               )
      LINDA JOHNSON,                    )
           Plaintiffs-Appellees.             )
           ________________________________________________


                     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.
      I believe that the majority mistakenly concludes that the trial
court’s 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.


                                     II.
      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[4]
      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 strictly construed.  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.
1937).
      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.[5]  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.
-----------------------
[1]“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 Black’s 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.  Black’s  Law  Dictionary
212 (7th ed. 1999).
[2]   Two  other  factors,  dealing  with  acts  subsequent  to  the   first
intervening act and intentional torts or criminal acts, are also listed.
[3] 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.
      [4] 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 abrogation in Cahoon v. Cummings, 734
N.E.2d 535, 541 (Ind. 2000).

      [5] 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.