TORT & INSURANCE LAW UPDATE

No. 126 Provided as a service to the firm’s clients and friends. February 2025

UPDATE ON PROXIMATE CAUSE 

By Andrew J. Petersen 

“The issue of proximate cause is composed of both a question of fact as well as a  question of law. . . the question of law is whether that conduct, if shown, is too  distantly related to the loss to allow legal responsibility to attach to it.”  J.R. Norton v. Fireman’s Fund Ins. Co., 116 Ariz. 427, 430 (App. 1977). 

We recently filed and won a defense motion on proximate cause. A trial court  tossing a case out because of proximate cause is a rare occurrence, so I thought I would  share it with you. You can also review my prior update on causation (#106).  

Our motion was filed almost immediately after we answered the complaint and  before discovery. We focused on proximate cause and did not dispute any facts as to what  our client did.  

Vehicle number one (not seen in the picture below) was driving east and ran the  red light; vehicle two, a taxi, was driving west and making a left turn to head south. The  plaintiff was a passenger in the back of the taxi, and she was seriously injured. The collision knocked the taxi completely around and into vehicle three which was in the  opposite northbound turn lane. My client is vehicle three (the white Bentley).  

As you can see, my client had stopped past the crosswalk line but was not in the  intersection as defined by the lateral curb lines. (Next time you are driving, notice how  many other cars stop past the crosswalk.) 

Plaintiff contended there were two impacts. The first occurred when the vehicle  and taxi collided. The second impact was when the taxi crashed into my client. Because  my client was over the crosswalk, the plaintiff contended that he was negligent and  negligent per se. “But for” my client being where he was, the second impact would not  have occurred. Our position was that my client’s presence was not a proximate cause of  the accident. We relied on Restatement (Second) of Torts § 433.  

• 433. Considerations Important in Determining Whether Negligent Conduct is  Substantial Factor in Producing Harm. 

The following considerations are in themselves or in combination with one  another important in determining whether the actor’s conduct is a substantial  factor in bringing about harm to another: 

(a) the number of other factors which contribute in producing the harm and the  extent of the effect which they have in producing it; 

(b) whether the actor’s conduct has created a force or series of forces which are  in continuous and active operation up to the time of the harm, or has  created a situation harmless unless acted upon by other forces for which the  actor is not responsible; 

(c) lapse of time.

And, § 431 Comment a provides:  

In order to be a legal cause of another’s harm, it is not enough that the harm would  not have occurred had the actor not been negligent. . . . . The word “substantial” is  used to denote the fact that the defendant’s conduct has such an effect in  producing the harm as to lead reasonable men to regard it as a cause, using that  word in the popular sense, in which there always lurks the idea of responsibility,  rather than in the so-called “philosophic sense,” which includes every one of the  great number of events without which any happening would not have occurred.  Each of these events is a cause in the so-called “philosophic sense,” yet the effect  of many of them is so insignificant that no ordinary mind would think of them  as causes. 

(emphasis added). As stated above, Restatement § 433 lists as considerations whether the  actor’s conduct created a force or series of forces that were in continuous and active  operation up to the time of the harm or created a harmless situation unless acted upon  by other forces for which the actor was not responsible. 

My client being stopped over the crosswalk line created a harmless situation. The  accident was caused by a combination of vehicle one entering the intersection at a high  rate of speed against a red light, and perhaps the taxi driver’s failure to anticipate the  approaching vehicle and yield before making his left turn. A.R.S. § 28-772. My client’s  presence over the crosswalk in the opposing direction did not create an unreasonable risk to west/east traffic and did not increase the risk that driver one would run the red light or  the taxi would fail to yield. Perhaps in the “philosophic sense” my client was a cause of  the accident, but he was not a proximate cause. 

The trial court agreed and granted summary judgment. Plaintiff did not appeal.