Marias v. Marano , 120 Idaho 11 ( 1991 )

JOHNSON, Justice,

concurring in the result.

I agree that the judgment of the trial court should be affirmed. I would premise this result, however, on the fact that Marías requested the proximate cause instruction given by the trial court. Proximate cause was a jury question and should have been presented to the jury on the basis of the evidence presented and the positions taken by the parties. Maraño relied, in part, on the fact that Marias had himself been negligent by allowing defaults to continue and not taking action against the buyer at an earlier time.

In my view, the proximate cause instruction requested by Marias, which was the first paragraph of IDJI 230 (July 1987), incorrectly included the “but for” requirement, because the jury could have concluded this was a case involving multiple causes. In the case of multiple causes, the second paragraph of IDJI 230 (July 1987) more correctly states the issue that should have been presented to the jury:

There may be one or more proximate causes of an injury. When the negligent conduct of two or more persons contributes concurrently as substantial factors in bringing about an injury, the conduct of each may be a proximate cause of the injury regardless of the extent to which each contributes to the injury.

Although in this appeal Marias characterizes the issues in terms of failure of the trial court to grant a directed verdict, a judgment notwithstanding the verdict, or a new trial, as I see the case, the error was that the proximate cause instruction was improper for a multiple cause case. Because Marias requested the instruction, I would affirm.

BOYLE, J., concurs.