Opinion
Case No. C-3-94-170
November 12, 1999
David Greer and Thomas Skilken, for plaintiffs.
Thomas Czechowski, Charles Brown, III, and John Kunst, for defendants.
DECISION AND ENTRY SETTING FORTH COURT'S INCLINATION WITH RESPECT TO JURY INSTRUCTION ON ISSUE OF INTERVENING/SUPERSEDING CAUSE
The parties in this products liability litigation disagree over the wording of the jury instructions the Court should give concerning Defendant's affirmative defense of intervening/superseding cause. The basic facts giving rise to that dispute are not in dispute. The Defendant, Lift-A-Loft, manufactured a lift, which it sold to General Motors, the employer of Plaintiff Allen Adams ("Adams"). General Motors negligently maintained the chains on the lift. While Adams was using the lift, one of its chains broke, causing the lift to fall and Adams to suffer injuries. In particular, the parties disagree about whether foreseeability is an element of the defense of intervening/superseding cause. According to Plaintiffs, foreseeability is an always element; therefore, Lift-A-Loft is not absolved of liability, unless it proves that General Motors' negligence was not foreseeable. Lift-A-Loft takes the opposite position and, relying upon Ohio Jury Instructions ("OJI") § 11.30(6), argues that it can be absolved of liability regardless of whether the negligence of General Motors was foreseeable. According to Defendant, foreseeability is not an element of an intervening/superseding cause defense, when that defense is based upon the failure of an intervening actor (General Motors), which is conscious of the hazard, to remove same. For reasons which follow, the Court agrees with the Plaintiffs.
Section 440 of the Restatement, 2d, of Torts states that a superseding cause is a type of intervention which relieves the defendant of liability.
Defendant's argument finds support in OJI § 11.30(6), which provides:
6. SUPERSEDING RESPONSIBLE CAUSE. If an independent and responsible party was aware of the existing hazard and could, or should, have eliminated it, there is a break in the chain of causation and the party who created the original hazard is relieved from liability because of such intervention by the other party.
The comments to that pattern instruction cite Hurt v. Charles J. Rogers Transp. Co., 164 Ohio St. 323, 130 N.E.2d 824 (1955), wherein the court held in ¶ 1 of the syllabus:
Where there intervenes between an agency creating a hazard and an injury resulting from such hazard another conscious and responsible agency which could or should have eliminated the hazard, the original agency is relieved from liability. A break in the chain of causation thereby takes place which operates to absolve the original agency.Hurt, in turn, relied exclusively upon Thrash v. U-Drive-It Co., 158 Ohio St. 465, 110 N.E.2d 419 (1953), which set forth the identically worded rule in ¶ 2 of the syllabus. In neither Hurt nor Thrash did the Ohio Supreme Court even mention foreseeability.
However, the law of Ohio has not remained static. InCascone v. Herb Kay Co., 6 Ohio St.3d 155, 451 N.E.2d 815 (1983), as in this case, the plaintiff brought suit against a supplier of his employer, alleging that he had been injured as a result of the supplier's actions. In Cascone, the supplier defended, as does the Defendant herein, upon the basis that the employer's negligence in failing to remove the hazard the supplier had created was the intervening/superseding cause of the plaintiff's injuries and that, therefore, it was absolved of liability. Therein, the plaintiff was employed as a mechanic by an automobile dealership. While working under a vehicle, the lift which supported that vehicle dropped, causing the plaintiff to suffer physical injuries. Previously, the lift had been partially repaired by the defendant-supplier, which had not completed the work as a result of having become embroiled in a payment dispute with the automobile dealership, the plaintiff's employer. The plaintiff alleged that the defendant-supplier had negligently repaired the lift. The defendant moved for summary judgment, arguing that the causal connection between its negligence and the plaintiff's injury had been broken by the intervening negligence of the car dealership, to wit: permitting the lift to be utilized without assuring that the repair work had been completed. The trial court sustained that motion, and the Cuyahoga County Court of Appeals affirmed. Upon the further appeal, the Ohio Supreme Court, in an opinion written by Justice Robert Holmes, reversed, concluding that only an intervening act that was unforeseeable was sufficient to break the chain of causation and, further, that the question of whether the employer's intervening negligence was foreseeable was a genuine issue of material fact. The Cascone Court held in the syllabus:
1. Whether an intervening act breaks the causal connection between negligence and injury, thus relieving one of liability for his negligence, depends upon whether that intervening cause was a conscious and responsible agency which could or should have eliminated the hazard, and whether the intervening cause was reasonably foreseeable by the one who was guilty of the negligence. (Paragraph two of the syllabus of Thrash v. U-Drive-It Co., 158 Ohio St. 465, 110 N.E.2d 419, approved and followed.)
2. Where the facts are such that reasonable minds could differ as to whether the intervening cause was a conscious and responsible agency which could or should have eliminated the hazard, whether the intervening act or cause constituted a concurrent or superseding cause, and whether the intervening cause was reasonably foreseeable by the original party guilty of negligence, present questions for submission to a jury which generally may not be resolved by summary judgment. (Mudrich v. Standard Oil Co., 153 Ohio St. 31, 90 N.E.2d 859, approved and followed.)
Thus, to the extent that Hurt and Thrash support the giving of the instruction proposed by Defendant (i.e., OJI § 11.30(6)), that authority was undercut by Cascone.
Moreover, subsequent decisions by the Ohio Supreme Court reiterate that foreseeability is an element of the affirmative defense of intervening/superseding cause. For instance, inLeibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266, 617 N.E.2d 1068 (1993), the Ohio Supreme Court wrote:
We have recognized that the existence of intervening and superseding causes of injury can be a defense to actions brought under theories of both negligence and strict liability in tort. Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31, 41 O.O. 117, 90 N.E.2d 859; R.H. Macy Co., Inc. v. Otis Elevator Co. (1990), 51 Ohio St.3d 108, 554 N.E.2d 1313, syllabus.
We have also repeatedly recognized that the issue of intervening causation generally presents factual issues to be decided by the trier of fact. Merchants Mut. Ins. Co. v. Baker (1984), 15 Ohio St.3d 316, 318, 15 OBR 444, 446, 473 N.E.2d 827, 828-829; Cascone v. Herb Kay Co. (1983), 6 Ohio St.3d 155, 160, 6 OBR 209, 214, 451 N.E.2d 815, 820; Mudrich, supra, 153 Ohio St. at 40, 41 O.O. at 121, 90 N.E.2d at 864. The determination of intervening causation "involves a weighing of the evidence, and an application of the appropriate law to such facts, a function normally to be carried out by the trier of the facts." Cascone, supra, 6 Ohio St.3d at 160, 6 OBR at 214, 451 N.E.2d at 820. In Cascone we established the test to be used to determine whether the intervening act was foreseeable and therefore a consequence of the original negligent act or whether the intervening act operates to absolve the original actor. "The test * * * is whether the original and successive acts may be joined together as a whole, linking each of the actors as to the liability, or whether there is a new and independent act or cause which intervenes and thereby absolves the original negligent actor." Id. at 160, 6 OBR at 214, 451 N.E.2d at 819 (citing Mudrich, supra, and Mouse v. Cent. Sav. Trust Co. [1929], 120 Ohio St. 599, 167 N.E. 868).
In R.H. Macy, supra, we approved of the use of a jury instruction on superseding causation which stated in part: "`The causal connection of the first act of negligence is broken and superseded by the second, only if the intervening negligent act is both new and independent. The term "independent" means the absence of any connection or relationship of cause and effect between the original and subsequent act of negligence. The term "new" means that the second act of negligence could not reasonably have been foreseen.'" (Emphasis sic.). 51 Ohio St.3d at 111, 554 N.E.2d at 1317, quoting 1 Ohio Jury Instructions (1983), Section 11.30. Thus, the key determination "`[w]hether an intervening act breaks the causal connection between negligence and injury depends upon whether that intervening cause was reasonably foreseeable by the one who was guilty of the negligence.'" (Emphasis deleted.) R.H. Macy, supra, at 110, 554 N.E.2d at 1316, quoting Mudrich, supra, 153 Ohio St. at 39, 41 O.O. at 121, 90 N.E.2d at 863.Id. at 269-70, 617 N.E.2d at 1071-72. In R.H. Macy Co. v. Otis Elevator Co., 51 Ohio St.3d 108, 554 N.E.2d 1313 (1990), the Ohio Supreme Court held that the defense of intervening/superseding cause is available in products liability actions; however, the court stressed that "only those intervening causes which are unforeseeable will be sufficient to [break the chain of causation and relieve the defendant of liability]." Id. at 111, 554 N.E.2d at 1316. Although neither of those cases addressed the type of intervening/superseding cause upon which the Defendant relies (i.e., the intervening act of a conscious and responsible party), they certainly reinforce the holding of Cascone that foreseeability is an element of the affirmative defense in question. Cascone, it must be reiterated, did involve that type of intervening/superseding cause.
In sum, the Court concludes that OJI § 11.30(6) does not reflect the current state of the law in Ohio and that, in light ofCascone and its progeny, Hurt and Thrash are no longer good law, to the extent that those earlier cases permit a defendant to establish the affirmative defense of intervening/superseding cause, without proving that the intervening act was not foreseeable. Therefore, the Court concludes, based upon its present knowledge of the evidence, that it will instruct the jury that the Defendant has not established that affirmative defense of intervening/superseding cause, unless it proves that the negligence of General Motors was not foreseeable.