Howard v. Bennett , 894 N.W.2d 391 ( 2017 )

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2017 S.D. 17IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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DOUGLAS W. HOWARD, Plaintiff and Appellee,
v.
PATRICK C. BENNETT,
Personal Representative of
the Estate of RAYMOND
EARL BENNETT, Deceased, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE HEIDI LINNGREN
Judge
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ADAM BRADSKY of
Bradsky, Bradsky & Bradsky, P.C.
Rapid City, South Dakota Attorneys for plaintiff
and appellee.
HEATHER M. LAMMERS BOGARD
Costello, Porter, Hill, Heisterkamp,
Bushnell & Carpenter, LLP
Rapid City, South Dakota Attorneys for defendant
and appellant.
****
ARGUED FEBRUARY 15, 2017
OPINION FILED 04/19/17
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ZINTER, Justice
[¶1.] Raymond Bennett failed to negotiate a curve on a highway, drove his
motorcycle off the road, and was killed. The Highway Patrol arrived and secured
the scene. Approximately an hour and a half later, Douglas Howard rounded the
same curve and encountered a vehicle that had come to a complete stop in his lane
of travel. Howard applied his brakes, lost control of his motorcycle, and sustained
injuries. He later sued Bennett’s estate (the Estate), contending that Bennett’s
negligence in the first accident created a dangerous condition that caused Howard’s
injuries in the second accident. The Estate moved for summary judgment,
contending that Bennett’s negligence was not the cause of the second accident. The
Estate alleged that the Highway Patrol’s scene management was a superseding
cause that relieved Bennett of liability. The circuit court denied the motion. We
granted the Estate’s petition for a discretionary appeal and now reverse.
Facts and Procedural History
[¶2.] Because this appeal involves summary judgment, we restate the facts
in a light most favorable to Howard, the nonmoving party. See Zerfas v. AMCO Ins.
Co., 2015 S.D. 99, ¶ 8, 873 N.W.2d 65, 69. On August 5, 2012, during the Sturgis
Motorcycle Rally, Bennett was on his motorcycle traveling east on Highway 44
towards Rapid City. Highway 44 has several curves in that area and a posted speed
limit of fifty miles per hour. At approximately 3:00 p.m., Bennett, who was
intoxicated, entered a curve at a high rate of speed and drove into the ditch. He
was killed in the accident. Neither the motorcycle nor any debris obstructed the
highway.
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[¶3.] Several Highway Patrol troopers arrived over the next eight minutes
to manage the scene and investigate the accident. At 4:00 p.m., Trooper Robert
Rybak arrived to perform accident reconstruction. By that time, Bennett’s body had
been removed, his motorcycle remained at the scene but completely off the highway,
and traffic was flowing in both directions. A highway patrol trooper was stationed
on a curve east of the scene to alert westbound motorists of the accident, but no
trooper was stationed west of the scene.
[¶4.] At 4:39 p.m., Howard was west of the scene on his motorcycle traveling
east towards Rapid City. He did not see any warning or indication that there was
an accident ahead. After rounding the same curve, which Howard described as a
“blind corner,” Howard encountered a motorhome that was stopped in his lane of
travel. Because there was a vehicle approaching in the oncoming lane, Howard
forcefully applied his brakes to avoid colliding with the motorhome. However, he
lost control of his motorcycle and was injured.
[¶5.] Howard sued Bennett’s estate, alleging that Bennett’s negligence in
his own accident created a dangerous condition that proximately caused Howard’s
injuries in the subsequent accident. 1 The Estate moved for summary judgment.
Although the Estate conceded that Bennett was negligent in causing his own
accident, it argued that Bennett’s negligence was not a proximate cause of Howard’s
injuries. The Estate specifically contended that Bennett was relieved of liability
because the Highway Patrol’s failure to warn eastbound traffic of the accident was a
1. Howard also sued several Highway Patrol troopers in a separate action,
alleging that the troopers were negligent in failing to secure the accident
scene. Howard voluntarily dismissed that suit without prejudice.
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superseding cause. The circuit court denied the motion, ruling that there were
issues of disputed fact for a jury to decide whether Bennett’s negligence was a
proximate cause of Howard’s accident. We granted the Estate’s petition for a
discretionary appeal. 2
Decision
[¶6.] The Estate argues that Bennett cannot be liable because Howard’s
injuries were caused by the negligence of the Highway Patrol troopers who were in
charge of securing and managing the accident scene. More specifically, the Estate
contends that the troopers’ failure to warn eastbound traffic of the accident site was
a superseding cause that relieved Bennett of any liability and that Bennett’s
negligence merely furnished a condition that led to Howard’s injuries. Howard
argues that the circuit court properly denied summary judgment because there is a
dispute whether Bennett’s negligence, in combination with the Highway Patrol’s
alleged negligence, was a proximate cause of Howard’s injuries, and that such a
dispute must be resolved by a jury. 3
2. We review the grant or denial of summary judgment de novo, with no
deference to the circuit court’s ruling. Highmark Fed. Credit Union v.
Hunter, 2012 S.D. 37, ¶ 7, 814 N.W.2d 413, 415.
3. We have previously observed that:
When an injury occurs through the concurrent negligence of two
persons, and would not have occurred in the absence of either,
the negligence of both is the proximate cause of the accident and
both are answerable. Consequently, if the defendant was
negligent and such negligence was a proximate cause or a
proximate contributing cause of plaintiff’s damage, he can
recover even though [a third person] was also negligent.
(continued . . .)
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[¶7.] Although Bennett argues that the issue in this case involves the
question of duty, the parties’ contentions implicate the causation element of
negligence law. 4 More specifically, the parties’ contentions relate to proximate
cause and superseding cause, which are interrelated concepts. “Proximate cause is
________________________
(. . . continued)
Rumbolz v. Wipf, 82 S.D. 327, 331, 145 N.W.2d 520, 522 (1966) (citations
omitted).
4. The Estate relies on Zerfas v. AMCO Ins. Co., 2015 S.D. 99, 873 N.W.2d 65,
to suggest that this case involves a question of duty. The Estate’s reliance on
Zerfas is misplaced. In Zerfas, this Court refused to recognize a duty to
remove a deer carcass from the road when a driver nonnegligently collides
with a deer. We stated that such a duty “would in essence impose strict
liability upon all drivers post-impact with wild animals and make them
ensurers of the safety of all following travelers.” Id. ¶ 16, 873 N.W.2d at 71.
Here, the Estate concedes that Bennett was negligent; i.e., that he breached
the “duty to exercise reasonable care under the circumstances,” and Howard
has not argued that Bennett had some additional legal duty beyond that
associated with his accident. Therefore, the sole question is whether
Bennett’s conceded negligence proximately caused Howard’s injuries.
The Estate also relies on Braun v. New Hope Township, 2002 S.D. 67,
646 N.W.2d 737, to support its contention that questions of superseding cause
are legal questions of duty. In Braun, we did state that the
“intervening/superseding cause analysis questions the extent of the
obligation, or duty, of the original actor who was negligent.” Id. ¶ 12,
646 N.W.2d at 740. However, in reciting the rules governing superseding
causes, we stated that original wrongdoers are relieved of liability when “the
natural and continuous sequence of causal connection between the negligent
conduct and the injury is interrupted by a new and independent cause.” Id.
¶ 10 (emphasis added). We also recognized that a superseding cause arises
because an “intervening force prevents the original actor’s antecedent
negligence from becoming a legal cause in bringing about the harm to
another.” Id. ¶ 13, 646 N.W.2d at 741 (emphasis added) (citing Restatement
(Second) of Torts § 441(2) (Am. Law Inst. 1965)). The parties have not briefed
or requested a resolution of what appears to be facially conflicting statements
in Braun. We therefore leave that question for another day. As we hereafter
explain, see infra ¶¶ 8-10, this case requires application of the causation rule
in Holmes v. Wegman Oil Co., 492 N.W.2d 107, 114 (S.D. 1992): questions of
superseding cause are normally questions of fact for the jury—but “[i]t is a
question of law for the court . . . where the facts are not in dispute and
reasonable minds could not differ.”
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defined as ‘a cause that produces a result in a natural and probable sequence and
without which the result would not have occurred. Such cause need not be the only
cause of a result. It may act in combination with other causes to produce a result.’”
Hamilton v. Sommers, 2014 S.D. 76, ¶ 39, 855 N.W.2d 855, 867 (quoting Peterson v.
Issenhuth, 2014 S.D. 1, ¶ 17, 842 N.W.2d 351, 355-56). However, “[w]hen the
natural and continuous sequence of causal connection between the negligent
conduct and the injury is interrupted by a new and independent cause, which itself
produces the injury, that intervening cause operates to relieve the original
wrongdoer of liability.” Braun v. New Hope Twp., 2002 S.D. 67, ¶ 10, 646 N.W.2d
737, 740 (emphasis omitted). An intervening cause that cuts off liability is a
superseding cause if it “so entirely supersede[s] the operation of the defendant’s
negligence that it alone, without his negligence contributing thereto, produces the
injury.” Id. (emphasis omitted).
[¶8.] Foreseeability is an issue in both proximate cause and superseding
cause analyses. Hamilton, 2014 S.D. 76, ¶ 39, 855 N.W.2d at 867 (noting
proximate cause requires foreseeable consequences); Braun, 2002 S.D. 67, ¶ 16,
646 N.W.2d at 741 (noting that foreseeable intervening causes are not superseding);
Grant v. Matson, 68 S.D. 402, 405, 3 N.W.2d 118, 119 (1942). Foreseeability is
important here because it is an issue controlling the question whether this case
must be decided by a jury or whether it may be decided by the court as a matter of
law. “[I]n any case where there might be a reasonable difference of opinion as to the
foreseeability of a particular risk, the reasonableness of the defendant’s conduct
with respect to it, or the normal character of an intervening cause, the question is
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for the jury.” W. Page Keeton et al., Prosser and Keeton on Torts § 45, at 321 (5th
ed. 1984); accord Holmes v. Wegman Oil Co., 492 N.W.2d 107, 114 (S.D. 1992). But
where reasonable minds cannot differ, the question is for the court. Holmes,
492 N.W.2d at 114; see also Braun, 2002 S.D. 67, ¶ 24, 646 N.W.2d at 743.
[¶9.] We have treated the issue of proximate cause as a question of fact for
the jury in successive accident cases involving contemporaneous acts of negligence,
or where there are two or more negligent acts that occur in such a close proximity in
time that they may be said to be part of the same unbroken chain of events. See,
e.g., Krumvieda v. Hammond, 71 S.D. 544, 549, 27 N.W.2d 583, 586 (1947) (stating
that the question whether negligent defendant in first collision was liable for
injuries suffered by plaintiff in second collision two minutes later was a question for
the jury); Wallace v. Brende, 67 S.D. 326, 330, 292 N.W. 870, 872-73 (1940)
(involving contemporaneous acts of negligence combining to produce injury); accord
Weary v. Holmes, 672 N.Y.S.2d 565, 566 (N.Y. App. Div. 1998) (holding summary
judgment improper because there was a dispute of fact whether defendant’s one-
vehicle accident proximately caused injuries in accident occurring several minutes
later, after police arrived, because “[d]efendant’s acts were not so remote in time
from plaintiff’s injuries ‘as to preclude recovery as a matter of law’”). One court,
after examining the cases involving successive accidents, observed that decisions
finding proximate cause generally involve either an obstruction from the initial
accident blocking the roadway or a short time period between the accidents. Hale v.
Brown, 167 P.3d 362, 365-66 (Kan. Ct. App. 2007) (collecting cases).
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[¶10.] But where a substantial amount of time had elapsed, the initial
accident did not obstruct the roadway, the later accident was caused by the
distraction of the initial accident or inattention of a later driver, law enforcement
had taken control of the scene, or other circumstances occurred such that the
subsequent accident was not a probable consequence of the first, courts have
concluded that the initial negligent defendant is not liable for injuries suffered in
the subsequent accident as a matter of law. See, e.g., Baumann v. Zhukov, 802 F.3d
950, 956 (8th Cir. 2015) (stating that initial accident was not the proximate cause of
injuries in subsequent accident occurring thirty-four minutes later due to
intervening negligence of driver in second accident); Hale, 167 P.3d at 367 (stating
that a person “whose negligence caused her own car to run completely off the
roadway would” not “expect to be liable to someone injured 35 minutes later when a
third driver was distracted,” because such circumstances would not be sufficiently
foreseeable); O’Connor v. Nigg, 838 P.2d 422, 425 (Mont. 1992) (holding negligence
of driver in initial accident was not the proximate cause of second accident
occurring ten minutes later because it was not foreseeable that the plaintiff–driver
would stop in the middle of the road and be rear-ended when the road was not
obstructed and emergency lights were visible); Jackson v. Howell’s Motor Freight,
Inc., 485 S.E.2d 895, 900 (N.C. Ct. App. 1997) (holding that driver who negligently
knocked down utility pole did not proximately cause plaintiff’s injuries when police
directed a truck to drive through the scene and the truck caught the overhanging
wire, causing the utility pole to fall onto the plaintiff’s leg).
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[¶11.] All of the foregoing circumstances are present under the undisputed
facts of this case. Howard’s accident occurred over an hour and a half after
Bennett’s accident. There is no evidence that Bennett’s accident obstructed the
highway. The Highway Patrol had secured the scene, and traffic was flowing in
both directions. No other accidents had occurred prior to Howard’s. Finally,
Howard conceded in his own deposition that he believed that the driver of the
motorhome was distracted by the initial wreck and was “just gawking at the
situation.”
[¶12.] Viewing the evidence in a light most favorable to Howard, there can be
no reasonable difference of opinion that Howard’s accident was not a foreseeable
consequence of Bennett’s negligence. Therefore, Bennett’s negligence was not a
proximate cause of Howard’s injuries as a matter of law. Bennett’s accident was no
longer creating a danger that injured Howard; 5 rather, it merely “furnished the
condition through which by subsequent independent events the injury resulted.”
Christensen v. Krueger, 66 S.D. 66, 70, 278 N.W. 171, 173 (1938); accord Leo v.
Adams, 87 S.D. 341, 347, 208 N.W.2d 706, 709 (1973). Because Bennett’s
negligence was not the proximate cause of Howard’s injuries as a matter of law, we
reverse and remand with instructions for entry of summary judgment in favor of the
Estate.
[¶13.] GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,
Justices, concur.
5. Because we conclude that Bennett’s negligence was not a proximate cause of
Howard’s accident, we need not determine whether the alleged negligence of
the Highway Patrol troopers was a superseding cause as a matter of law.
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