Cooper-Harris, Inc. v. Escalle

MORRIS, Judge.

Plaintiff presents multiple assignments of error, including the failure of the trial court to instruct the jury on foreseeability as an element of proximate cause. We do not deem it necessary to discuss all the assignments of error, since the latter assignment of error is dispositive of plaintiff’s appeal.

It is well established that foreseeability is an element of proximate cause in North Carolina. Ratliff v. Power Co., 268 N.C. 605, 151 S.E. 2d 641 (1966); Pettus v. Sanders, 259 N.C. 211, 130 S.E. 2d 330 (1963). See also Byrd, Proximate Cause in North Carolina Tort Law, 51 N.C. L. Rev. 951 (1973).

It is equally well established that the trial court’s failure to include foreseeability as an element of proximate cause is error, and the party prejudiced thereby is entitled to a new trial. Barefoot v. Joyner, 270 N.C. 388, 154 S.E. 2d 543 (1967); Ratliff v. Power Co., supra; Regan v. Player, 13 N.C. App. 593, 186 S.E. 2d 688 (1972); Keener v. Litsinger, 11 N.C. App. 590, 181 S.E. 2d 781 (1971). In Barefoot and Ratliff, supra, the Supreme Court specifically rejected charges on proximate cause wliich — like the charge before us — were “but for” tests of proximate cause. .

The distinction between the “but for” test of proximate cause and a test which includes the element of foreseeability has been ably stated by. Justice Lake.

“An eyent .which is a ‘but for’ cause of another event— that is,, a cause without which the second event would not havé,vtaken- place — is not, necessarily, the proximate cause of the second event. While one event cannot be the proximate cause of another if, had the first event not occurred, the second would have occurred anyway, Henderson v. Powell, 221 N.C. 239, 19 S.E. 2d 876, the reverse is not necessarily true. A ‘but for’ cause may be a remote event from which no injury to anyone could possibly have been foreseen. Foreseeability of some injury from an act or omission is a prerequisite to its being a proximate cause of the injury for which the plaintiff seeks to recover damages. Nance v. Parks, 266 N.C. 206, 146 S.E. 2d 24.” Ratliff v. Power Co., supra, at 614.

Since foreseeability is an element of proximate cause and the trial court’s charge was erroneous in this respect, plaintiff is entitled to a

New trial.

Judges Britt and Hedrick concur.