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.