McCarthy v. McCarthy , 1988 Alas. LEXIS 41 ( 1988 )

OPINION

MATTHEWS, Justice.

In this automobile collision case, the jury in a special verdict found that both drivers were negligent but that the negligence of the defendant was not a legal cause of the accident. The appellants, plaintiffs below, contend that no reasonable jury could conclude that defendant’s negligence was not a legal cause of the accident, and that the evidence to support this conclusion is either completely lacking or so slight and unconvincing as to make the verdict plainly unreasonable and unjust. They thus contend that the trial court erred in refusing to grant their motion for a new trial.

The accident occurred in a parking lot bounded on the west by South Cushman Street. Just before the accident, the defendant was in the parking lot driving north, roughly parallel to the path of the plaintiffs vehicle on South Cushman Street. Defendant stated that he was traveling faster than he normally would have been because the parking lot was covered with snow and he was afraid that his low-slung vehicle would become stuck if he did not keep his speed up. He observed James McCarthy’s vehicle traveling slowly on South Cushman Street and, thinking that James McCarthy was letting him pull in front, the defendant, in his words, “started to pull out.” At this point James McCarthy made a shallow angled turn from Cush-man Street into the parking lot and into the path of defendant’s vehicle. A collision resulted.

In a special verdict the jury found that both James McCarthy and the defendant were negligent, that James McCarthy’s negligence was a legal cause of the accident, and that the defendant’s negligence was not. The theory of negligence on the part of the defendant was that he was negligent in the action he took — “starting to pull out” at a faster than normal speed —when he mistakenly assumed that plaintiff had slowed in order to allow him to proceed.

It is our view that no reasonable juror could have concluded that defendant’s action of proceeding when he should have been stopping was not a legal cause of the accident and the verdict is thus plainly unreasonable and unjust. The defendant admitted a causal relationship. He stated: “Yeah, my assumption, yeah I feel that was one of the causes.” Further, he testified that if he had known that the plaintiff was going to turn into the lot he could have avoided the accident.

The court instructed the jury on the issue of proximate cause¹ as follows:

A proximate cause of an injury is an act or omission which, in natural and continuous sequence, produces the injury, and without which the injury would not have occurred. That is, but for the negligent conduct the injury would not have occurred.

It is a cause which is a substantial factor in bringing about the injury. A substantial factor is one which is so important in bringing about the injury that reasonable men would regard it as a cause and attach responsibility to it.

In order to be the proximate cause, the cause does not have to be the sole cause.

This instruction has two elements: “but for” cause (“but for the negligent conduct the injury would not have occurred”) and “substantial factor” cause (a cause “so important in bringing about the injury that reasonable men could regard it as a cause and attach responsibility to it”).

But for cause is causation in fact. The “but for” question in this case is would the accident have happened if the defendant had not acted as he did? This is “a matter upon which lay opinion is quite as competent as that of the most experienced court.” W. Keeton, D. Dobbs, R. Keeton & R. Owen, Prosser and Keeton on the Law of Torts § 41, at 264 (5th ed. 1984). The defendant’s opinion concerning cause in this case is competent as to the but for cause element of the instruction.

The “substantial factor” element of the instruction is more complex. In one respect it is more inclusive than but for cause because it encompasses cases where there are two or more forces each of which is alone sufficient to cause the injury. Wilson v. City of Kotzebue, 627 P.2d 623, 630 (Alaska 1981). Prosser & Keeton, supra, at 266-68. This is not such a case. Primarily, however, the function of the substantial factor element is to limit liability in cases where but for cause exists. As such, it has been criticized:

[Wjhen the “substantial factor” is made to include all of the ill-defined considerations of policy which go to limit liability once causation in fact is found, it has no more definite meaning than “proximate cause,” and it becomes a hindrance rather than a help.

It is particularly unfortunate in so far as it suggests that the questions involved are only questions of causation, obscuring all other issues, and as it tends to leave to the jury matters which should be decided by the court.

Prosser & Keeton, supra, at 278;

This criticism, though it seems valid, need not detain us here, for this is not a case which presents any of the imponderables which sometimes make proximate cause a difficult subject. We have here no unforeseeable or indirect consequences such as those presented in the classic case of Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).² This is a garden variety case “where two automobiles collide [and] the causal connection is quite clear, and there is no doubt that both parties have played an important role in bringing about the result.” Prosser & Keeton, supra, at 276. There is no reason on these facts to impose any limitation on the but for cause requirement and it cannot be reasonably concluded that defendant’s negligence did not meet both elements of the instruction.

It is possible that the jury determined the cause issue adversely to the plaintiffs because it found that James McCarthy’s fault was substantially greater than the defendant’s. Such a determination would reflect a misunderstanding of the court’s instructions, as degrees of fault were to be employed in the comparative negligence interrogatory contained in the special verdict, and not as part of the cause interrogatory. It is, however, not necessary to speculate as to why the jury went wrong, so long as it is clear that the cause question could not reasonably have been decided as it was. Since that is our conclusion, this case must be remanded for a new trial.

The appellants also argue that the trial court erred in refusing to to instruct the jury on negligence per se or evidence of negligence based on the defendant’s alleged violation of certain Alaska Administrative Code regulations. 13 AAC 02.257 requires the driver of a vehicle emerging from a private road or driveway to stop at a point nearest the street to be entered where he has a view of approaching traffic on the street, and 13 AAC 02.135(b) requires the driver about to enter a roadway from a place other than a roadway to yield the right-of-way to all vehicles approaching on the roadway which are so close as to constitute an immediate hazard. There is no evidence that the defendant violated either of these regulations. The accident occurred in the parking lot at a point estimated to be fifteen feet from the edge of the roadway by James McCarthy and thirty feet from the edge of the roadway by the defendant. Since the regulations were not violated the requested instructions were properly refused. Bachner v. Rich, 554 P.2d 430, 441 (Alaska 1976); Bailey v. Lenord, 625 P.2d 849, 855 (Alaska 1981).³

REVERSED and REMANDED for a new trial.

1 . In the special verdict form, the jury was asked whether the defendant’s negligence was a legal cause of the accident. No instruction relating proximate cause to legal cause was given, but we assume that the jury understood that the court was using the two terms interchangeably.

2 . The facts of Patsgraf were:

A passenger was running to catch one of the defendant’s trains. The defendant’s servants trying to assist the passenger to board it, dislodged a package from the passenger’s arms and it fell upon the rails. The package contained fireworks, which exploded with some violence. The concussion overturned some scales, many feet away on the platform, and they fell upon the plaintiff and injured her. The defendant's servants, who were found by the jury to have been negligent in what they did, could have foreseen harm from their clumsiness to the package, or at most to the passenger boarding the train; but no harm to the plaintiff could possibly have been anticipated.

Prosser & Keeton, supra, at 285.

3 . However, on retrial it would not be error to use the regulations in an instruction establishing a motorist’s duty to stop or be able to stop before entering a street from a parking lot. Such an instruction would have a bearing on the question of what speed is reasonable when approaching a street from within a parking lot.