Appeal from Shawnee District Court; FRANKLIN R. THEIS, judge.
Proximate cause to support a negligence claim is a cause that results in the claimed injuries as part of a natural, continuous, and probable sequence of events. When a one-car accident occurs that does not block the roadway, a second accident caused by the distraction of police or ambulance personnel in the area 35 minutes later is not sufficiently connected to the first accident for the first accident to be a proximate cause of the second.
The opinion of the court was delivered by: Leben, J.
Before MALONE, P.J., BUSER and Leben, JJ.
Accepting plaintiff's allegations as true, Jason Packard's negligence caused his car to run off a highway in Topeka and into a tree some distance off the paved surface of the roadway and its shoulder area. Emergency workers arrived shortly after the accident, and traffic on the roadway began to back up. About 35 minutes after Packard's accident, another driver, Judy Brown, failed to respond quickly enough to the traffic congestion; Brown's car struck the plaintiff's car from behind. Plaintiff, Mary Hale, now seeks to recover from Packard and his employer for the injuries she sustained when Brown's car hit Hale's. But liability for negligence is not unlimited--longstanding caselaw holds that liability for negligence arises only when the consequences of an act are probable under normal human experience, not a mere possibility. Applying this rule, we agree with the district court that Packard's negligence is not sufficiently connected to Brown's negligent driving to allow Hale to recover from Packard or his employer for her injuries.
We assume the facts stated by the plaintiff are true because we must. Like the district court, on a motion to dismiss, we must accept the facts that the plaintiff has alleged; we must then determine whether those facts and any inferences reasonably drawn from them state a claim for relief under any possible legal theory. Jones v. State, 279 Kan. 364, 366, 109 P.3d 1166 (2005). The only legal theory discussed by the parties is negligence, and we find no other possible legal theory on these facts. Thus we examine the viability of plaintiff's claim for negligence.
Packard's negligence, if indeed he was negligent, was most unfortunate. He felt lightheaded and considered pulling over but instead continued to drive along the highway toward his home. He soon passed out, drove off the road, and ran into a tree. The highway was I-470 in Topeka; the accident occurred at 4:57 p.m. on a weekday. As might be expected at that time on a weekday, traffic backed up in the area once the police and an ambulance were on the scene. Judy Brown's collision with plaintiff Hale's car occurred at about 5:35 p.m., and Hale was injured. A valid negligence claim requires that a plaintiff meet four elements: the existence of a duty to the plaintiff, a breach of that duty, an injury, and proximate cause. D.W. v. Bliss, 279 Kan. 726, 734, 112 P.3d 232 (2005). The disputed element here is proximate cause. Proximate cause requires more than mere cause in fact. A proximate cause is one that caused the injury "'in natural and continuous sequence, unbroken by an efficient intervening cause, . . . the injury being the natural and probable consequence of the wrongful act.'" Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006) (quoting St. Clair v. Denney, 245 Kan. 414, 420, 781 P.2d 1043 ).
Just how likely a consequence must be for it to be considered a "natural and probable consequence" of an act has been stated in a number of ways. The most frequently cited standard in Kansas holds that "[a] defendant is not responsible for all possible consequences of his or her negligence, only those consequences which are probable according to ordinary and usual experience." (Emphasis added.) Aguirre v. Adams, 15 Kan. App. 2d 470, 472, 809 P.2d 8 (1991). Accord Sly v. Board of Education of Kansas City, 213 Kan. 415, 424, 516 P.2d 895 (1973); Hickert v. Wright, 182 Kan. 100, 108, 319 P.2d 152 (1957); Shideler v. Habiger, 172 Kan. 718, 722, 243 P.2d 211 (1952); Beldon v. Hooper, 115 Kan. 678, 683, 224 Pac. 34 (1924); Clark v. Powder Co., 94 Kan. 268, 273-74, 146 Pac. 320 (1915). Although this foreseeability test is stated in terms of events that are "probable," proximate cause may sometimes be found even for events likely to occur less than half the time, especially when the defendant has created a particularly dangerous condition. See, e.g., Wahwasuck v. Kansas Power & Light Co., 250 Kan. 606, 610-12, 828 P.2d 923 (1992); Cooper v. Eberly, 211 Kan. 657, 665, 508 P.2d 943 (1973). Even so, as one court has phrased it, the consequence must occur "with reasonable probability from the negligent act of the defendant." Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1303 (7th Cir. 1995). Like many tests found in law, the rule provides a general standard, but its contours must be filled in as specific cases are considered.
A viable argument can be made in this case for the plaintiff. The starting point for that case is the general rule that proximate cause is normally a question for the jury. Miller v. Zep Mfg. Co., 249 Kan. 34, 50, 815 P.2d 506 (1991). So in most cases the application of this liability-limiting rule will be left to the jury. It is only when the evidence is so clear that it is "susceptible of only one inference" that proximate cause is treated as a question of law for the court and is not submitted to the jury. Cullip v. Domann, 266 Kan. 550, 556, 972 P.2d 776 (1999).
Further, a Kansas Supreme Court case suggests that the class of cases that should be decided as a matter of law has been narrowed in recent decades by the adoption in Kansas of comparative fault principles in 1974. Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, 268-69, 43 P.3d 799 (2002). Under prior law, the existence of some fault on the part of the plaintiff, called contributory negligence, barred recovery altogether. In response, courts sometimes found that a plaintiff's fault was not the proximate cause of his injury, lessening the harshness of what was then an all-or-nothing recovery. Similarly, when multiple defendants were involved, one's acts might be found the sole proximate cause--or one's negligence might be labeled "active" and the other's "passive"--so as to avoid rules that otherwise would have required equal contribution between them. When comparative fault was adopted, the fact-finder could compare and apportion the fault of all parties and, in Kansas, the plaintiff could recover as long as his or her fault was less than 50 percent. Based on this, the court in Reynolds said that "[w]ith the adoption of comparative fault, Kansas has moved beyond the concept of proximate cause in negligence." 273 Kan. at 269.
As we understand it, that statement did not mean that proximate cause was no longer a requirement of a negligence claim in Kansas. The court separately recognized that "[p]roximate cause is not an obsolete concept in Kansas law," 273 Kan. at 268, and that intervening causes still would cut off liability in "extraordinary cases." 273 Kan. at 269. And both the Supreme Court and our court have continued to cite and apply proximate cause as an element of negligence claims after Reynolds. See, e.g., Yount 282 Kan. at 624-25; D.W. 279 Kan. at 734; Williamson v. City of Hays, 275 Kan. 300, Syl. ¶ 6, 64 P.3d 365 (2003); Crowe v. True's IGA, 32 Kan. App. 2d 602, 612-13, 85 P.3d 1261, rev. denied 278 Kan. 844 (2004); Miller v. Westport Ins. Corp., No. 95,768, unpublished opinion, filed February 16, 2007, rev. granted June 21, 2007 (review pending). But the Reynolds court was acknowledging what others have called "the logic that changing to a regime of comparative responsibility affects the scope of proximate cause." Restatement (Third) of Torts: Liability for Physical Harm, § 34, comments, p. 682 (Proposed Final Draft No. 1, 2005).
Consistent with this potentially diminished role for proximate cause, an example provided in the latest Restatement of Torts supports plaintiff's claim. The American Law Institute approved the Restatement (Third) of Torts: Liability for Physical Harm in 2005. Under section 29 of the Third Restatement, the black-letter rule for proximate cause (a term the Restatement avoids) is that "[a]n actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious." Restatement (Third) of Torts § 29, p. 575 (Proposed Final Draft No. 1, 2005). The Restatement sets forth the view that the distraction arising around an accident scene is within the risks that should be anticipated by a negligent driver:
"Tortious conduct may be wrongful because of a variety of risks to a number of different classes of persons. Thus, driving a vehicle negligently poses risks to persons and property who might foreseeably be harmed in a number of ways--by a collision with another vehicle or pedestrian, by the vehicle leaving the road, by the consequences of a narrowly averted collision, by the confusion and distraction of an accident scene, or by other consequences. Some of those risks may be more prominent than others, but all are relevant in determining whether the harm ...