       F I I.        XbV
                                                                             This opinion was
                                                                              filed for record
            i La                                                           at Vmon
       IM CLERKS OPPICB ^
SUPRE^^- COURT. SIXTE OF WKSHMeiQM

    DAT^ •flBii 1 1 Ml                                                      Susan L.wn5on
                                                                           Supreme Court Clerk

        umFjusTtce




              IN THE SUPREME COURT OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,

                     Respondent,                        No. 95947-1


         V.



JOSHUA CANE FRAHM,                                      Filed          1 I 21119

                     Petitioner.




         OWENS, J. — A drunk driver struck and disabled another vehicle, then fled into the

early morning darkness. A Good Samaritan stopped to help the vehicle that had been

struck. While helping, the Good Samaritan sustained fatal injuries due to a secondary

accident. We are asked whether, as a matter oflaw, the drunk driver's acts were too

attenuated from the Good Samaritan's death for criminal liability to attach. We conclude

that the drunk driver's acts were the legal cause ofthe Good Samaritan's death because

those acts were criminal, caused direct harm as well as risk of further harm, and occurred

close in time and location to the ultimate harm that befell the Good Samaritan. We

further conclude that the issue of intervening, superseding cause was proper for the jury to

determine as a matter of actual cause using a reasonable foreseeability standard and that the
State V. Frahm
No. 95947-1



vehicular homicide convietion is supported by sufficient evidence. Accordingly, we hold

that the drunk driver's aets proximately caused the Good Samaritan's death, and we affirm.
                         FACTS AND PROCEDURAL HISTORY

       Shortly before 6:00 a.m. on Sunday, December 7, 2014, Joshua Cane Frahm was

intoxicated and drove his truck erratically at a high rate of speed on several freeways in

Vancouver, Washington. Two different motorists called 911 to report Frahm's dangerous

driving, which included cutting off a vehicle and nearly rear-ending several others. Frahm

was going 85 m.p.h. when he rear-ended a vehicle driven by Steven Klase. The impaet

propelled Klase's vehicle into the median barrier and caused it to spin and ricochet, leaving

it disabled across the left and middle lanes. Frahm fled the scene without stopping to render

aid to Klase, who was seriously injured in the collision.

       Richard Irvine was driving the same direction on the same freeway that morning and

witnessed the collision. Irvine pulled his sedan over onto the right shoulder of the freeway,

activated his emergency flashers, exited his sedan, and crossed the freeway on foot to render

aid to Klase, who remained trapped inside his vehicle. Irvine ealled 911 from his cell phone

and was on the line with emergency dispatchers when Klase's vehicle was struck a second

time by a minivan. The driver of the minivan had shifted into the left lane when he saw the

flashers ofIrvine's car on the right shoulder, but the driver did not notice Klase's disabled

vehicle in the still-dark morning until it was too late to avoid hitting it. The second impact

to Klase's vehicle from the minivan propelled Klase's vehicle into Irvine, throwing Irvine

approximately 20 feet across the roadway and causing him to sustain severe brain and spinal
State V. Frahm
No. 95947-1



injuries. Irvine died 12 days later as a result of his injuries and pneumonia.

       The State charged Frahm with half a dozen crimes associated with the incident,

including vehicular homicide. The case proceeded to a jury trial. The trial court allowed

the issue of intervening, superseding cause to go to the jury. The trial court instructed the

jury according to 11A Washington Practice: Washington Pattern Jury Instructions:

Criminal 90.08, at 278 (4th ed. 2016)(WPIC), which stated in relevant part:

        [I]f a proximate cause of the death was a new independent intervening act of the
        deceased or another which the defendant, in the exercise of ordinary care, should
        not reasonably have anticipated as likely to happen, the defendant's act is
        superseded by the intervening cause and is not a proximate cause ofthe death. .. .

              However, if in the exercise of ordinary care, the defendant should
       reasonably have anticipated the intervening cause, that cause does not
       supersede the defendant's original act and the defendant's act is a proximate
       cause. It is not necessaiy that the sequence of events or the particular injury
       be foreseeable. It is only necessary that the death fall within the general field
       of danger which the defendant should have reasonably anticipated.

Clerk's Papers(CP)at 106 (Instr. 12). Frahm objected to that instruction.

       The jury found Frahm guilty of vehicular homicide, as well as vehicular assault, hit-

and-run, conspiracy to commit perjury, and false reporting. Frahm appealed his

convictions, arguing, among other claims, that the State presented insufficient evidence to

support his conviction for vehicular homicide. The Court of Appeals affimied, and we

granted review. State v. Frahm, 191 Wn.2d 1026 (2018).

                                            ISSUE


       Did Frahm's acts proximately cause Irvine's death?

       a.     Were Frahm's acts the legal cause of Irvine's death?
State V. Frahm
No. 95947-1



       b.     Does sufficient evidence support Frahm's vehicular homicide conviction

when the jury was charged with the issue of intervening, superseding cause and instructed to

apply a reasonable foreseeability standard?

                                        ANALYSIS


       Frahm's challenge to his vehicular homicide conviction has taken different forms

during his appeal. Though Frahm objected to use of the pattern jury instruction at trial,

he did not assign error to the instruction on appeal. Rather, Frahm argued that

insufficient evidence supported his conviction. In his petition for review, Frahm argued

that the foreseeability standard applied by the Court of Appeals erroneously heightened

the threshold for a superseding cause. In his supplemental brief, Frahm challenged use of

a tort-derived foreseeability standard to determine liability for vehicular homicide, as

well as sufficiency of the evidence underlying his conviction. Properly before us is

whether sufficient evidence supports Frahm's conviction for vehicular homicide.

       When reviewing a challenge to the sufficiency of evidence, we view the evidence

in the light most favorable to the State and determine whether "any rational trier of fact

could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). We review questions of law de novo. State v. Johnson, 128

Wn.2d 431,443, 909 P.2d 293 (1996).

       Proximate Cause

       Vehicular homicide is defined as follows:


      (I) When the death of any person ensues within three years as a proximate
      result of injury proximately caused by the driving of any vehicle by any
State V. Frahm
No. 95947-1



       person, the driver is guilty of vehicular homicide if the driver was operating
       a motor vehicle:
              (a) While under the influence of intoxicating liquor or any drug, as
       defined by RCW 46.61.502; or
             (b)In a reckless manner; or
             '(c) With disregard for the safety of others.

RCW 46.61.520. Vehicular homicide is a strict liability offense. See State v. Rivas, 126

Wn.2d 443, 451-53, 896 P.2d 57(1995). "[T]he conduct of the defendant must be both

(1)the actual cause, and (2)the 'legal' ... cause" ofthe death. Id. at 453. In

Washington, unlike other jurisdictions, we use the term "proximate cause" to refer to

both prongs of causation together. See Hartley v. State, 103 Wn.2d 768, 111,698 P.2d

77(1985)("Washington law recognizes two elements to proximate cause: Cause in fact

and legal causation"); State v. Bauer, 180 Wn.2d 929, 936 n.5, 329 P.3d 67(2014). To

determine whether Frahm's acts proximately caused Irvine's death, we must determine

whether Frahm's acts were both the legal cause and the actual cause ofthe death.

       Actual cause, or cause in fact, "refers to the 'but for' consequences of an act—the

physical connection between an act and an injury." Hartley, 103 Wn.2d at 778. Legal

cause presents a more nuanced inquiry:

             Legal causation ... rests on policy considerations as to how far the
       consequences of[a] defendant's acts should extend. It involves a
       determination of whether liability should attach as a matter of law given the
       existence of cause in fact. . . .[DJetermination of legal liability will be
       dependent on 'mixed considerations of logic, common sense,justice,
       policy, and precedent.'

Id. at 779(quoting King v. City ofSeattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974))

While actual cause is a question of fact generally left to the jury to "determin[e] what
State V. Frahm
No. 95947-1



actually occurred," id. at 778, legal cause "is a question of law for the court based on

policy considerations." Colbertv. Moomba Sports, Inc., 163 Wn.2d 43, 51, 176 P.3d 497

(2008). "The focus in the legal causation analysis is whether, as a matter of policy, the

connection between the ultimate result and the act of the defendant is too remote or

insubstantial to impose liability." Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468,

478-79, 951 P.2d 749 (1998). "'[A]s to cause in fact, tort and criminal situations are

exactly alike.'" Bauer, 180 Wn.2d at 936 (quoting State v. Dennison, 115 Wn.2d 609,

624 n.l5, 801 P.2d 193 (1990)). As to legal causation, however, tort and criminal

situations differ. Id. at 940.


       a.     Legal Cause

       In Bauer, we recognized and established that as a rule,'"legal cause' in criminal

cases differs from, and is narrower than, 'legal eause' in tort cases in Washington." Id.

       Commentators and courts recognize that criminal law and tort law serve
       different purposes and therefore have different principles of legal causation.
       "[WJith crimes, where the consequenees of a determination of guilt are
       more drastic .. . it is arguable that a closer relationship between the result
       achieved and that intended or hazarded should be required." "The wider
       doctrines of causation currently applied in tort law should not be extended
       to criminal law. . . . [I]n criminal law,... it is not normally enough merely
       to prove that [the] accused occasioned the harm; he must have 'caused' it in
       the strict sense."


Id. at 936-37 (alterations in original)(citations omitted)(quoting 1 WAYNE R.LaFave,

Substantive Criminal Law § 6.4(c) at 472(2d ed. 2003); H.L.A. Hart & Tony

Honore,Causation in the Law 350-51 (2d ed. 1985)). We examined the case law and

"found no Washington case upholding [criminal] liability . . . where the accused did not
State V. Frahm
No. 95947-1



actively participate in the immediate physical impetus of the harm." Id. at 940.

       Bauer was eharged with third degree assault when he left loaded guns unseeured

in his home, and his girlfriend's child '"swiped"' one of those guns and two days later

carried it to school where it diseharged, injuring another student. Id. at 933. We held

"legal eausation is not satisfied" as to Bauer "[bjeeause legal eausation in civil cases is

hroader and more flexible than it is in eriminal eases." Id. at 942.

       We distinguished Bauer from cases where a defendant's "initial act was not only

intentional, but felonious, and eapable of causing harm in and of itself." Id. at 939. For

example, we contrasted Bauer with State v. Leech, 114 Wn.2d 700, 705, 790 P.2d 160

(1990), in which an arsonist's actions proximately caused the death of a firefighter who

died in the eourse of responding to the arson fire. We held that Leeeh was criminally

liable for the firefighter's death despite the fact that the arson fire was but one of the

causes of the death. Id. We emphasized that Leeeh "started the fire—clearly an

intentional criminal act capable of causing harm in and of itself." Bauer, 180 Wn.2d at

939. We also eontrasted Bauer with State v. Perez-Cervantes, 141 Wn.2d 468, 6 P.3d

1160 (2000), in whieh the defendant stabbed the victim several days before the victim

died. We held that Perez-Cervantes was criminally liable for the vietim's death despite

the fact that drug use also contributed to the death. Id. at 480. Again, we emphasized

that Perez-Cervantes "performed an intentional eriminal act—stabbing—^that directly

caused harm." Bauer, 180 Wn.2d at 939. In contrast, Bauer's act—owning guns and

keeping them loaded around his home—^was "not felonious or criminal." Id.
State V. Frahm
No. 95947-1



       We conclude that Frahm's acts of hitting Klasc's vehicle while intoxicated and

fleeing the scene were felonious and directly caused harm in and of themselves. This

case is similar to Leech. There, as here, the defendant criminally caused a harm that the

victim died while responding to. Furthermore, Frahm's criminal acts were volitional.

The record establishes that Frahm drove aggressively and nearly rear-ended several other

vehicles prior to hitting Klase, while the crime of hit-and-run requires a loiowing mens

rea. RCW 46.52.020; State v. Vela, 100 Wn.2d 636,673 P.2d 185 (1983).

       By contrast, the facts ofthe case at bar are readily distinguishable from Bauer.

Bauer had no knowledge that his girlfriend's child had taken the gun. Here, Frahm was

acutely aware that he had caused harm and initiated a substantial risk of further harm

when he fled after disabling Klase's vehicle. In Bauer, the gun discharged and injured

another student two days after the child swiped the gun. See 180 Wn.2d at 941 (noting

'"remoteness in time between the criminal act and the injury [may be] dispositive to the

question of legal cause . . .'"(quoting Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d

190, 205, 15 P.3d 1283 (2001))). Here, Irvine sustained fatal injuries within minutes of

Frahm striking Klase's vehicle and fleeing the scene. Bauer's act was neither criminal

nor directly caused harm. Here, Frahm's acts—hitting Klase's vehicle while intoxicated

and fleeing the scene—were criminal and caused direct harm.

       Though in Bauer we stated that we had found no Washington case upholding

criminal liability "where the accused did not actively participate in the immediate

physical impetus ofthe harm," that inquiry is misleading in the context of crimes of
State V. Frahm
No. 95947-1



criminal negligence, such as vehicular homicide. 180 Wn.2d at 940. Rather, a defendant

acts with criminal negligence "when he or she fails to be aware of a substantial risk that a

wrongful act may occur and his or her failure to be aware of such substantial risk

constitutes a gross deviation from the standard of care that a reasonable person would

exercise in the same situation." RCW 9A.08.010(l)(d). Here, Frahm grossly deviated

from the standard of care by disregarding the substantial risk of further injury, which did

in fact occur minutes later.


       This is a case where, even under Bauer,"liability should attach as a matter of law"

because Frahm's acts were criminal, caused direct harm as well as risk of further harm,

and occurred close in time and location to the ultimate harm that befell Irvine. Hartley,

103 Wn.2d at 779. Accordingly, we hold legal causation for vehicular homicide satisfied

as to Frahm.


       b.      Actual Cause


       Frahm contends that insufficient evidence supports his vehicular homicide

conviction because an intervening, superseding cause relieved him of criminal liability

for Irvine's death. He argues that Irvine's act of crossing the freeway on foot to render

aid to Klase and/or the secondary collision by the minivan constituted intervening,

superseding causes of Irvine's death. "[A]n intoxicated defendant may still avoid

responsibility for a death which results from his or her driving if the death is caused by a

superseding, intervening event." Rivas, 126 Wn.2d at 453. Frahm also argues that use of

a reasonable foreseeability standard to determine an intervening, superseding cause is
State V. Frahm
No. 95947-1



erroneous in the context of criminal liability for vehicular homicide.

       The most helpful definition of intervening, superseding cause is drawn from tort

law. See Campbell v. ITEImperial Corp., 107 Wn.2d 807, 811-14, 733 P.2d 969 (1987).

An intervening cause is a "force that actively operates to produce harm to another after

the actor's act or omission has been committed." Klein v. Pyrodyne Corp., 117 Wn.2d 1,

17 n.7, 810 P.2d 917, 817 P.2d 1359 (1991). "If the intervening cause is strong enough

to relieve the wrongdoer of any liability, it becomes a superseding cause." BLACK'S LAW

Dictionary 265 (10th ed. 2014)(defining "intervening cause"). '"Whether an act may

be considered a superseding cause sufficient to relieve a defendant of liability depends on

whether the intervening act can reasonably be foreseen by the defendant; only intervening

acts which are not reasonably foreseeable are deemed superseding causes.'" Crowe v.

Gaston, 134 Wn.2d 509, 519, 951 P.2d 1118 (1998)(internal quotation marks omitted)

(quoting Cramer v. Dep't ofHighways, 73 Wn. App. 516, 520, 870 P.2d 999 (1994)). An

intervening act will not constitute a superseding cause if the original actor "'should have

realized that a third person might so act.'" Campbell, 107 Wn.2d at 813 (quoting

Restatement(Second)of Torts § 447(a)(Am.Law Inst. 1965)).

       Whether an intervening act rises to the level of a superseding cause is an issue of

actual cause. Maltman v. Sauer, 84 Wn.2d 975, 982, 530 P.2d 254(1975); McCoy v. Am.

Suzuki Motor Corp., 136 Wn.2d 350, 358, 961 P.2d 952(1998). We trust juries to make

that determination. However, that factual question may be determined as a matter of law

if reasonable minds could not differ. See McCoy, 136 Wn.2d at 358; Kim, 143 Wn.2d at

                                             10
State V. Frahm
No. 95947-1



203. In other words,"[a]n intervening aet may be so highly extraordinary or unexpected

as to fall outside the realm of reasonable foreseeability as a matter of law." Micro

Enhancement Int'I, Inc. v. Coopers & Lybrand, LLP, 110 Wn. App. 412, 431, 40 P.3d

1206 (2002).

       In State v. Roggenkamp, 153 Wn.2d 614, 106 P.3d 196 (2005), we affirmed a

vehicular homicide conviction despite the fact that the driver ofthe vehicle that the

defendant struck was intoxicated and pulled out in front of the defendant. We concluded

that the struck vehicle driver's "actions were, at most, a concurring cause, not a

superseding cause of the accident." Id. at 631 (stating that a "concurring cause does not

shield a defendant from a vehicular homicide conviction"). Sufficient evidence existed

for the trial court to find that given the clear residential character of the road,"[a] vehicle

pulling out. . .(whether driven by an intoxicated driver or not) was an occurrence that

should have been reasonably foreseeable to Roggenkamp." State v. Roggenkamp, 115

Wn. App. 927, 946, 64 P.3d 92(2003), aff'd, \53 Wn.2d at 630-31.

       Frahm in effect argues that the tort-derived foreseeability standard does not

properly distinguish an intervening act from a superseding cause for purposes of criminal

liability for vehicular homicide because oC'BauePs requirement of narrower legal cause

in criminal law than in tort." Pefr's Suppl. Br. at 15. However, we expressly noted in

Bauer that "'as to cause infact, tort and criminal situations are exactly alike.'" 180

Wn.2d at 936 (emphasis added)(quoting Dennison, 115 Wn.2d at 624 n.l5). Reasonable

foreseeability distinguishes a superseding cause from a mere intervening event. Because

                                              11
State V. Frahm
No. 95947-1



that distinction presents a question of cause in fact for a jury, not a question of legal cause

for a court, the foreseeability standard passes muster under Bauer.

       Frahm's arguments that the Court of Appeals applied erroneous foreseeability

standards are similarly unavailing. Frahm argues that the Court of Appeals eontravened

Roggenkamp by restricting the threshold for superseding cause to situations in which the

foreseeability ofthe act that caused the harm was '"highly extraordinary or unexpected.'"

Pet. for Review at 10. However, we conclude that the Court of Appeals properly

employed Micro Enchancemenfs "highly extraordinary or unexpected" standard to

determine when a court should take a question of intervening, superseding cause from a

jury as a matter of law. 110 Wn. App. at 431. Frahm also argued that the Court of

Appeals adopted a new "'general field of danger'" foreseeability standard for liability for

vehicular homicide and that the Court of Appeals based its affirmance on that new

standard. Pet. for Review at 11. However, the "general field of danger" language was

drawn directly from the pattern jury instruction, which the jury received at trial. WPIC

90.08; CP at 106. Thus, the Court of Appeals applied proper standards.

       Here, Irvine's act of crossing the freeway on foot to help Klase and the secondary

collision by the minivan were intervening events because both occurred after Frahm's

criminal acts of hitting Klase's vehicle while intoxicated and then fleeing the scene. The

jury weighed the evidence and determined that neither intervening event superseded

Frahm's criminal acts as the actual cause of Irvine's death. The question of foreseeability

was properly given to the jury because reasonable minds could have differed as to

                                              12
State V. Frahm
No. 95947-1



determination of that issue. Viewing the evidence in the light most favorable to the State,

a rational trier of fact could have found guilt beyond a reasonable doubt. Accordingly,

we hold that sufficient evidence supports Frahm's vehicular homicide conviction.

                                      CONCLUSION


       We conclude as a matter of law that Frahm's acts were the legal cause ofIrvine's

death because his acts were criminal, caused direct harm as well as risk of further harm,

and occurred close in time and location to the ultimate harm that befell Irvine. We also


conclude that the jury was properly charged with determining whether any intervening

event superseded Frahm's acts as the actual cause ofIrvine's death, that the jury properly

applied a reasonable foreseeability standard to make that detennination, and that sufficient

evidence supports Frahm's vehicular homicide conviction. Accordingly, we hold that

Frahm's acts proximately caused Irvine's death. We affirm the Court of Appeals.




                                             13
State V. Frahm
No. 95947-1




WE CONCUR:



                      CL




                 14
State V. Frahm (Joshua C.)




                                        No. 95947-1



       MADSEN,J.(dissenting)—This is a vehicular homicide case—a criminal case,

not a tort case. The majority holds that defendant's actions of hitting a car on the freeway

and fleeing the accident scene without stopping, thereby leaving the struck disabled ear

on the freeway, proximately caused the death of a passerby who subsequently stopped to

render aid and later died from injuries sustained in a second automobile collision at the

scene. I disagree with the majority's conclusion that "as a matter of law" defendant's

acts were the "legal cause" of the passerby's death. Majority at 13. For the reasons

explained below, in my view, the passerby's death is simply too attenuated from

defendant's hit and run to result in legal causation in the present context.

       In this vehicular homicide case, Joshua Frahm, while intoxicated and driving his

truck, collided with a car on the freeway, injuring the car's driver, Steven Klase. Frahm

continued on without stopping, leaving Klase's disabled car on the freeway. Richard

Irvine, seeing the disabled car on the freeway, stopped to help the disabled car's driver.

Irvine pulled his vehicle onto the freeway's right shoulder, walked across the freeway,

and called 911. While Irvine was talking to the dispatcher, another vehicle (a minivan)

struck Klase's disabled car, propelling it into Irvine, who later died from his injuries.
No. 95947-1
Madsen, J., dissenting


Frahm was charged with several crimes, including vehicular homicide for the death of

Irvine. A jury convicted Frahm of this charge.

       On appeal, Division Two ofthe Court of Appeals rejected Frahm's insufficient

evidence challenge to his vehicular homicide conviction, determining that events

occurring after Frahm fled the scene (i.e., the acts of Irvine and the van driver) were

foreseeable. Thus, such intervening acts did not amount to superseding causes that would

break the chain of proximate causation resulting in Frahm's liability for Irvine's death.

The majority agrees; I do not. In my view, it is untenable that Frahm's rear-ending a

vehicle on the freeway proximately caused the death of Irvine under the facts as above

described.


       Both the majority and the Court of Appeals view this case as analogous to State v.

Roggenkamp, 115 Wn. App. 927, 64 P.3d 92(2003), aff'd, 153 Wn.2d 614, 106 P.3d 196

(2005), a vehicular homicide and assault case. In my view, while Roggenkamp is

instructive, it does not support the majority's view. In Roggenkamp, the defendant drove

on a two-lane county road with a posted speed limit of 35 miles per hour. Defendant

entered the oncoming traffic lane to pass another vehicle and reached a speed of

approximately 70 miles per hour. While defendant was still in the oncoming lane, a

vehicle turned into that lane from an intersection. Defendant collided with that vehicle,

seriously injuring three passengers and killing another. The driver ofthe vehicle that

defendant hit had a blood alcohol content over the legal limit. Id. at 931-34.
No. 95947-1
Madsen, J., dissenting


       Roggenkamp held that the drunk driver's actions were not a superseding cause of

the accident for two reasons. First, the drunk driver's action of turning left onto a two-

lane residential roadway was reasonably foreseeable; and, second, Roggenkamp's

recklessness was ongoing when the drunk driver pulled out of the intersection. Id. at

946-47. In the present case. Division Two concluded,"Here, as in Roggenkamp, the acts

of the [van] driver and a passerby were foreseeable." State v. Frahm, 3 Wn. App. 2d 812,

^2\, 41^ F.3d 215, review granted, 191 Wn.2d 1026 (2018). And "a reasonable jury

could find beyond a reasonable doubt that Frahm's rear-ending Klase's vehicle

proximately caused Irvine's death." Id. at 822. The majority agrees that "[t]he question

of foreseeability was properly given to the jury" and holds that "Frahm's acts

proximately caused Irvine's death." Majority at 12, 13. I disagree with the majority's

conclusion.


       Here, the jury received Washington Pattern Jury Instruction 90.08 concerning

vehicular homicide and causation as follows:


             If you are satisfied beyond a reasonable doubt that the driving ofthe
       defendant was a proximate cause of the death, it is not a defense that the
       conduct of the deceased or another may also have been a proximate cause
       of the death.
              However, if a proximate cause ofthe death was a new independent
      intervening act of the deceased or another which the defendant, in the
      exercise of ordinary care, should not reasonably have anticipated as likely
      to happen, the defendant's act is superseded by the intervening cause and is
      not a proximate cause ofthe death. An intervening cause is an action that
      actively operates to produce harm to another after the defendant's act or
      omission has been committed.
            However, if in the exercise of ordinary care, the defendant should
      reasonably have anticipated the intervening cause, that cause does not
      supersede the defendant's original act and the defendant's act is a
No. 95947-1
Madsen, J., dissenting


       proximate cause. It is not necessary that the sequence of events or the
       particular injury be foreseeable. It is only necessary that the deathfall
       within the generalfield ofdanger which the defendant should have
       reasonably anticipated.

Clerk's Papers at 106 (Instr. 12)(emphasis added); llA WASHINGTON PRACTICE:

Washington Pattern Jury Instructions: Criminal 90.08, at 278 (4th ed. 2016).

Here, the generalfield ofdanger that Frahm should have reasonably anticipated is further

injury to the disabled vehicle and its occupants that he left stranded on the freeway, not

injury to a passerby who walked across the freeway and was struck by the disabled car,

after that disabled car was struck by yet another vehicle on the freeway.

       By contrast, in Roggenkamp, defendant's recklessly speeding vehicle struck

another car causing injury and death to that car's occupants. The defendant's reckless

conduct directly caused the injuries sustained and such reckless conduct was ongoing at

the point in time when the injuries were sustained. That is not the case here. Frahm's

conduct of striking a car with his truck and leaving the disabled car in the freeway was

completed and over when the passerby (Irvine) later received injuries in the second

automobile collision. Also, as discussed below, there is simply no sufficient connection

between Frahm and the passerby's death to impose criminal liability. While "but for"

causation is satisfied, legal causation is not.

       Unlike the facts in Roggenkamp, the chain of events in this case is simply too

attenuated to impose criminal liability on Frahm for the death of the passerby. This

result finds support in State v. Bauer, 180 Wn.2d 929, 942, 329 P.3d 67(2014). There,

this court explained that while criminal law and tort law share the same "but for"
No. 95947-1
Madsen, J., dissenting


causation, the requirement for legal causation to impose criminal liability is more

demanding than in the tort context. Surveying the relevant case law and commentary on

this issue, the Bauer court opined as follows:

              This court, in agreement with commentators and other jurisdictions,
       has observed that "as to cause in fact [(i.e., 'actual' or 'but for' causation)],
       tort and criminal situations are exactly alike." \State v. Dennison, 115
       Wn.2d 609, 624 n.l5, 801 P.2d 193 (1990)(citing 1 WAYNE R.LaFave &
       Austin W.Scott, Jr., Substantive Criminal Law § 3.12, at 397 n.31
       (1986))].
              Legal causation, however, is different. Commentators and courts
       recognize that criminal law and tort law serve different purposes and
       therefore have different principles of legal causation. "[W]ith crimes,
       where the consequences of a determination of guilt are more drastic ... it is
       arguable that a closer relationship between the result achieved and that
       intended or hazarded should be required." 1 WAYNE R.LaFave,
       Substantive Criminal Law § 6.4(c) at 472(2d ed. 2003). "The wider
       doctrines of causation currently applied in tort law should not be extended
       to criminal law      [I]n criminal law,... it is not normally enough merely
       to prove that [the] accused occasioned the harm; he must have 'caused' it in
       the strict sense." H.L.A. FlART & TONY HONORE,CAUSATION IN THE Law
       350-51 (2d ed. 1985); see also JEROME Hall, General Principles of
       Criminal Law 254-55 (2d ed. 1960)(noting that causation in tort may be
       much broader than causation in criminal law).
              Most states that have addressed the question agree that legal
       causation is defined more narrowly in criminal law than it is in tort law.
       The Pennsylvania Supreme Court explained, in the context offelony
        murder:
               A closer causal connection between the felony and the killing
               than the proximate-cause theory normally applicable to tort
               cases should be required because ofthe extreme penalty
               attaching to a conviction for felony murder and the difference
               between the underlying rationales of criminal and tort law.
               The former is intended to impose punishment in appropriate
               cases while the latter is primarily concerned with who shall
               bear the burden of a loss.
        Commonwealth ex rel. Smith v. Myers,438 Pa. 218, 232, 261 A.2d 550
       (1970). Cases from multiple jurisdictions, both state and federal, support
       this principle. E.g., United States v. Schmidt, 626 F.2d 616,618 n.3 (8th
       Cir. 1980)("[W]e believe that proof of some more direct causal connection
No. 95947-1
Madsen, J., dissenting


       between act and result should be required in criminal cases than would be
       sufficient to uphold liability in tort."); Campbell v. State, 293 Md.438,
       450-51, 444 A.2d 1034(1982)("[T]he tort liability concept of proximate
       cause is generally too broad and comprehensive to be appropriate in a
       criminal proceeding . . . ."); People v. Kibbe, 35 N.Y.2d 407, 413, 321
       N.E.2d 773, 362 N.Y.S.2d 848(1974)("We subscribe to the requirement
       that the defendants' actions must be a sufficiently direct cause of the
       ensuing death before there can be any imposition of criminal liability, and
       recognize, of course, that this standard is greater than that required to serve
       as a basis for tort liability."); People v, Scott, 29 Mich. App. 549, 558, 185
       N.W.2d 576(1971)("In criminal prosecutions there must be a more direct
       causal connection between the criminal conduct ofthe defendant and the
       homicide charged than is required by the tort liability concept of proximate
       cause.").

180 Wn.2d at 936-38(most alterations in original)(footnote omitted). In Bauer, this

court ultimately concluded that criminal liability did not attach where "the accused did

not actively participate in the immediate physical impetus of harm." Id. at 940 (quoting

with approval. Hart & Honore, supra, at 326 for the proposition that "'[WJhere [the first

actor's conduct] was not sufficient [to bring about the harm] without the intervention of

the second actor . . . most decisions relieve the first actor of responsibility'"(most

alterations in original)). That is precisely the circumstance in Frahm's case. Frahm's

striking of Klase's car was not sufficient to bring about Irvine's death. Irvine's death

resulted from the minivan striking Klase's car, propelling it into Irvine, who sustained

injuries from that impact that were ultimately fatal more than a week later. Without

Irvine leaving his vehicle and crossing the freeway on foot and the minivan subsequently

striking Klase's disabled car, Irvine would not have been injured.

       The majority finds this case analogous to State v. Leech, 114 Wn.2d 700, 790 P.2d

160(1990), in which this court held an arsonist criminally liable for the death of a
 No. 95947-1
 Madsen, J., dissenting


 firefighter who died while responding to the fire started by the arsonist. The majority

 concludes that similarly here,"Frahm's acts of hitting Klase's [car] while intoxicated and

 fleeing the scene were felonious and directly caused harm in and of themselves."

 Majority at 8. While I agree that Frahm's drunken hit-and-run "directly caused harm,"

 such direct harm was to Klase, not to Irvine. As discussed, under Bauer, the legal

 causation required to impose criminal liability necessitates a direct causal connection that

 is simply not present here. In Frahm's case, while "but for" causation is satisfied, legal

 causation is not. This alone is a sufficient basis for reversing the Court of Appeals and

 overturning Frahm's vehicular homicide conviction.

        Additionally, I disagree with the majority's view that "[wjhether an intervening

 act rises to the level of a superseding cause is an issue of actual cause [for the trier of

 fact]." Majority at 10(emphasis added). The majority cites two cases as support;

 Maltman v. Sauer, 84 Wn.2d 975, 530 P.2d 254 (1975), and McCoy v. American Suzuki

 Motor Corp., 136 Wn.2d 350, 961 P.2d 952(1998). Both cases, however, addressed

 application ofthe rescue doctrine and foreseeability in the tort context and, thus, have no

 application here.'

        Elsewhere, Washington courts have opined that the issue of foreseeability "is not

 properly framed within the 'cause in fact' element of proximate cause." Bullardv. Bailey,


'The rescue doctrine is a tort concept that "allows an injured rescuer to sue the party which
caused the danger requiring the rescue in the first place." McCoy, 136 Wn.2d at 355 (citing
Maltman, 84 Wn.2d at 976-77). The rescue doctrine reflects "a societal value judgment that
rescuers should not be barred from bringing suit for knowingly placing themselves in danger to
undertake a rescue." Id. at 356. But, as noted, the present case concerns imposition of criminal
sanction, not compensation.
No. 95947-1
Madsen, J., dissenting


91 Wn. App. 750, 758, 959 P.2d 1122(1998). "Instead, it is part of determining whether

[a defendant's] aetions are the 'legal cause' of[a plaintiffs] damages." Id.

       [The] question of foreseeability "is in no way one of causation, and never
       arises until causation has been established. It is rather one of the
       fundamental policy of the law, as to whether the defendant's responsibility
       should extend to such results."


Id. (quoting WILLIAM L.PROSSER,HANDBOOK OF THE LAW OF TORTS 250(4th cd. 1971)).

       Further, concerning the McCoy case, the Washington Practice series notes:

              In cases brought by a plaintiff who was injured in the course of
       trying to rescue an individual who was placed in peril by the defendant's
       negligence, Washington courts have added an additional inquiry as part of
       the "cause in fact" analysis. . . .
              It should be noted that interveningforces are usually considered as
       part ofthe question oflegal cause, rather than cause in fact. However,this
       additional element of cause in fact may be a uniquefeature ofrescue cases,
       and hence can be appropriately considered in such cases as part of
       analyzing both prongs ofthe proximate cause test.

16 David K.DeWolf & Keller W.Allen, Washington Practice: Tort Law and

Practice § 5:3 (4th ed. 2013)(emphasis added)(citation and footnote omitted).

       In any event, whatever Maltman and McCoy say about proximate cause and

foreseeability in the context of applying the rescue doctrine, those cases are limited to the

tort arena that they addressed and, thus, have no application in the present criminal

context. In my view, as discussed above, Bauer provides the appropriate analysis in this

criminal context; and the stronger direct causal connection required to find legal

causation, as explained in Bauer, is simply not present.

       For these reasons, I dissent.
No. 95947-1
Madsen, J., dissenting
