PRESENT: Lemons, C.J., Goodwyn, Powell, Kelsey, and McCullough, JJ., and Lacy and
Millette, S.JJ.

CAROLYN A. DORMAN, ET AL.
                                                                OPINION BY
v. Record No. 151088                                      JUSTICE CLEO E. POWELL
                                                                June 16, 2016
STATE INDUSTRIES, INC.



                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                          Walter W. Stout, III, Judge Designate

       In this products liability action filed in 2011 and seeking over 24 million dollars in

damages, Carolyn Dorman, Elizabeth Burgin, Nichole Howarth, and Kristin Julia (collectively

“appellants”) appeal from a judgment of the Circuit Court of the City of Richmond (“trial court”)

finding State Industries, Inc. (“State”) not liable for appellants’ breach of warranty and

negligence claims. On appeal, appellants argue the trial court erred in allowing State to present

certain evidence and in granting Jury Instruction 22.

                                        I. BACKGROUND

       On August 17, 2007, appellants moved into 1306-F Henry Lane (“the Apartment”), a unit

in Collegiate Suites Apartments (“CSA”) in the Town of Blacksburg (“Town”). Two days later,

Kenneth Compton, a senior service technician with Atmos Energy Corporation, measured high

levels of carbon monoxide at the front door of the Apartment. After receiving no answer from

the occupants, he entered the Apartment and found the appellants unconscious in their bedrooms.

       Five days after the incident, the town building official Katherine Cook, Town code

official Jeffrey Garst, and John Mann, a mechanical engineer in heating and air conditioning

design, were present at the Apartment for testing of the atmospheric-vented gas fired hot water

heater (“atmospheric heater”) manufactured by State. Cook testified they were able to recreate
the “back draft and carbon monoxide” conditions of August 19, only when “the water heater was

running, all the doors to the bedrooms were closed . . . [and] [w]hen the air conditioning was

running.” The atmospheric heater was connected to the air handler of the central air conditioning

unit that was also manufactured by State. 1

       Mann testified the temperature and pressure release valve (“T&P valve”) was rated to

open at 210 degrees to relieve the pressure in the atmospheric heater, but sediment on the T&P

valve’s sensor caused it to open at 126 degrees. Thus, water was continuously draining out of

the atmospheric heater causing a continuous flow of fresh water to enter it, resulting in the gas

burner continuously firing to heat the water. Testing revealed there was insufficient combustion

air, the fresh air that feeds the fire on a gas-burning appliance, in the Apartment for the

atmospheric heater to vent properly, thus it generated carbon monoxide, and, because it was

continuously firing on August 19, it generated toxic levels of carbon monoxide. Mann testified it

was the installer’s responsibility to make sure that the atmospheric heater was installed pursuant

to the installation instructions and the local Town codes. Cook testified that the structural and

architectural notes for CSA specified electric water heaters were to be installed in the apartments

and no changes from the approved plans had ever been submitted to the Town for review and

approval of the switch to atmospheric heaters.

       Appellants’ expert, Randy Bicknese, is a mechanical project engineer and is familiar with

atmospheric heaters through his experience as a fire and explosions investigator. Bicknese

opined that the Apartment had an adequate volume of combustion air for the atmospheric heater,

but the problem was “the sensitivity of the design of the water heater to slight changes in

pressure within the building” primarily caused by “[t]he operation of the Apollo air handler.”



       1
           This set up was part of State’s Apollo Hydroheat system.


                                                  2
Other factors that reduced the available combustion air included the weather, operation of the

exhaust fans in the four bathrooms, and the airflow characteristics of the Apartment. Moreover,

open spaces on the draft hood of the atmospheric heater permitted carbon monoxide to be

emitted into the living space. Bicknese opined that the atmospheric heater was “unreasonably

dangerous” and unfit for the purpose for which it was marketed because of the design defect of

the draft hood and its susceptibility to atmospheric conditions, both interior and exterior, which

prevented it from venting properly.

       State asked Bicknese on cross-examination about his opinions regarding the property

owners. Appellants objected and argued that State was raising the “empty chair” defense. The

trial court ruled State could explore this area “until it’s proven, but the court makes a decision as

to whether it supersedes” and it could not make “that decision at this time.” Bicknese then

testified that he previously opined in his disclosure that the atmospheric heater was improperly

installed and that the owners of CSA, CSB III, LLC (“CSB”), were responsible for the improper

installation. He outlined the various code violations in his disclosure and faulted CSB and

CSA’s management company, University Management, Inc. (“UMI”), for failing to comply with

those codes. Bicknese also opined that Atmos “was knowingly negligent and a proximate cause

of [appellants’] carbon monoxide poisoning” in making the gas connection to the atmospheric

heater. Bicknese further testified that an electric water heater and three safer power vented gas

water heaters were available when the Apartment was built in 1999 and somebody, other than

State, decided to install the atmospheric heater.

       The trial court denied State’s motion to strike appellants’ claim that there was a design

defect caused by the opening at the top of the atmospheric heater that allowed carbon monoxide




                                                    3
to come out, but granted the motion to strike as to appellants’ claims of failure to warn and

defects in the T&P valve.

       Sterling Nichols, one of the owners of CSA, testified that the architectural plans called

for electric hot water heaters to be installed in each apartment. The first three buildings used

electric water heaters but atmospheric water heaters were installed in the “stage 4” building,

which included the Apartment. State was not consulted concerning this change; instead, Nichols

relied on the opinions of the project’s heating and air conditioning contractor, and a gas company

representative.

       Allen Eberhardt, State’s expert in mechanical engineering with expertise in evaluating

gas appliances as the source of carbon monoxide, was present at the testing of the atmospheric

heater on August 24, five days after appellants were injured. He testified the atmospheric heater

operated normally producing no carbon monoxide until the bedroom doors were shut and the air

handler was turned on, at which time it starting producing carbon monoxide. At that point, the

air stopped circulating through the ductwork, the air pressure in the bedrooms increased forming

“positive pressure,” and the air pressure in the rest of the Apartment decreased forming ”negative

pressure.” The negative pressure tried to balance itself by pulling air from the flue that

connected the draft hood of the atmospheric heater to the outside. At that point, the gas burner

no longer had sufficient air for clean combustion and began producing carbon monoxide.

       Eberhardt testified this condition had not previously occurred because the space under the

closed bedroom doors allowed sufficient air return to the atmospheric heater. Then, nine days

before the incident, new carpet was installed in the Apartment, which reduced the space under

the doors and created the negative pressure. The UMI employee who approved the new carpet




                                                 4
installation testified that no analysis was done to determine the effect of the carpet on the airflow

in the Apartment.

       Eberhardt testified the manual for the atmospheric heater provided warnings with regard

to air return and inadequate combustion air. The manual stated that the atmospheric heater had

to be installed according to the instructions and discussed different ways to increase air volume

by creating openings to the crawlspace or attic in order to bring more air into tightly sealed

newer homes. Eberhardt opined that the installation of the atmospheric heater in the Apartment

was inappropriate because there was no return of air from the bedrooms when the bedroom doors

were closed and when the space under the closed bedroom doors was reduced by the new carpet.

       Charles Adams, State’s expert in mechanical engineering with particular expertise in the

design, operation, and manufacture of gas-fired water heaters, testified he was chief engineer and

Director of Government Affairs for A. O. Smith Corporation (“Smith”), a manufacturer of water

heaters and boilers that had “around 500 engineers worldwide.” 2 Adams testified that the

installation manual for the atmospheric heater required it to be installed in compliance with the

American National Standards Institute (“ANSI”) and the National Fire Protection Association

(“NFPA”), two installation codes that specified how return air ductwork should be installed. The

codes required that when installing the atmospheric heater with an air handler, provisions had to

be made in order to import combustion air from outside the room. Adams testified “the

incorrectly-installed air handler was stealing the air needed for combustion,” as the one-half

horsepower blower motor on the air handler overcame the ability of the warm air generated by

the gas burner in the atmospheric heater to naturally rise through the ceiling vent. Adams also

testified, “there’s about 60 million atmospheric gas water heaters operating in the United States.”



       2
           In 2001, Smith purchased State when Adams was vice president of engineering.


                                                  5
He opined that the opening at the draft hood of the atmospheric heater did not render it

unreasonably dangerous at the time it was installed or at any other time.

       At the conclusion of the evidence, appellants renewed their previously filed motion

seeking to exclude State’s “empty chair” evidence, arguing that there was sufficient evidence for

the jury to consider that State’s conduct was a proximate cause of appellants’ injuries. State

argued that the issue was for the jury to decide as State’s evidence demonstrated CSB was

responsible for the decision to install the atmospheric heater and the installers failed to determine

the effect of the pressure conditions on the combustion air. The trial court overruled the motion.

       The trial court granted State’s Proposed Jury Instruction 22, which stated: “A

superseding cause is an independent event, not reasonably foreseeable, that completely breaks

the connection between the defendant’s negligent act and the plaintiff’s injury. A superseding

cause breaks the chain of events so that the defendant’s original negligent act is not a proximate

cause of the plaintiffs’ injury in the slightest degree.” Appellants objected to the instruction,

arguing that unless the trial court believed that it could say, “that State was not negligent even in

the slightest degree,” then State was not entitled to a superseding cause instruction. The trial

court ruled that the issue was whether State was negligent “at the start,” and if State was not

negligent, “the case is over.” The trial court further ruled that if there was negligence on State’s

part, “then the jury may deserve some explanation of why others aren’t here.”

       In closing argument, State argued that Smith employs over “500 engineers who do

nothing other than make sure that the products they manufacture are safe.” Appellants objected

that State was making “an inappropriate attack” on Bicknese’s credibility. Appellants argued

State should not be allowed to argue that millions of its atmospheric heaters were in general use,




                                                  6
that an atmospheric heater had never before flooded an apartment with carbon monoxide or that

the atmospheric heater had “a safe design record.”

        State argued “the issue [was] whether or not the design and use of this design” in the

industry was admissible and evidence of custom and usage was relevant in order to properly

assess the opinion of appellants’ expert, Bicknese, that every atmospheric heater was defective.

The trial court ruled that compliance with regulation statutes or industry standards may be

admissible but was not dispositive. The dispositive issue was whether the product was

reasonably safe for its intended purpose. The trial court ruled State could present evidence of

prior incidents “as to the custom and usage based on design.” The trial court overruled

appellants’ objection to State’s closing argument, ruling that Adams testified the Smith engineers

“do testing, it’s part of making the product safe” and appellants could respond to the argument in

rebuttal.

        The jury returned a verdict for State on all claims. The trial court then denied appellants’

motion to set aside the verdict and motion for new trials. This appeal followed.

                                           II. ANALYSIS

        On appeal, “we review the circuit court’s evidentiary rulings using an abuse of discretion

standard, [and] we will reverse the circuit court’s decision to admit evidence only upon a finding

of abuse of that discretion.” Hyundai Motor Co. v. Duncan, 289 Va. 147, 155, 766 S.E.2d 893,

897 (2015).

                              A. Absence of Other Injuries Evidence

        Appellants argue that the trial court erred in admitting evidence presented by State of the

numbers of atmospheric heaters sold, their safety record, and the absence of prior injuries

associated with the atmospheric heaters.




                                                 7
       We have previously noted in a food poisoning case that “evidence of the absence of other

injuries is not admissible in a negligence action when timely objection to it is made.” Goins v.

Wendy’s Int’l, Inc., 242 Va. 333, 335, 410 S.E.2d 635, 636 (1991). State argues that such

evidence may be admissible in a products liability case, but that at any rate, no such evidence

was offered in this case. We agree with State’s second argument and, accordingly, we do not

reach the question of whether and under what circumstances evidence of absence of injuries

might be admissible in a products liability case.

       Adams testified with regard to the number of atmospheric heaters sold, that there are

“about 60 million atmospheric gas water heaters operating in the United States.” This statement

was neither couched in terms of a safety record nor linked to any evidence of prior injuries.

Instead, it was merely a statement of the number of atmospheric heaters in use.

               Code § 8.2-314 provides that, in all contracts for the sale of goods
               by a merchant, a warranty is implied that the goods will be
               merchantable. To be merchantable, the goods must be such as
               would “pass without objection in the trade” and as “are fit for the
               ordinary purposes for which such goods are used.” Code
               § 8.2-314(2)(a),(c). The first phrase concerns whether a
               “significant segment of the buying public” would object to buying
               the goods, while the second phrase concerns whether the goods are
               “reasonably capable of performing their ordinary functions.”
               Federal Signal Corp. v. Safety Factors, Inc., 886 P.2d 172, 180
               (Wash. 1994).

Bayliner Marine Corp. v. Crow, 257 Va. 121, 128, 509 S.E.2d 499, 503 (1999). Not only did

appellants not object to this testimony at trial, the evidence was relevant to the main issue before

the jury on whether the atmospheric heater breached an implied warranty of merchantability and

whether or not it was unreasonably dangerous. The number of atmospheric heaters sold was

directly related to the issue of whether the atmospheric heater would “pass without objection in

the trade” as demonstrated by evidence as to whether a “significant segment of the buying

public” would object to buying the product. Accordingly, the trial court did not abuse its


                                                    8
discretion in allowing the admission of the evidence regarding how many atmospheric heaters

were in use.

                                 B. Superseding Cause Evidence

       Appellants argue that the trial court erred in allowing evidence of superseding causation

because another cause of injury or death only breaks the chain of proximate causation if it so

completely supersedes the defendant’s wrongdoing that the wrongdoing no longer contributes in

the slightest degree to the cause of death or injury. Appellants further argue that State’s

negligence could never be superseded because the unsealed exhaust of the atmospheric heater is

the only necessary physical antecedent of the carbon monoxide exposure as a matter of law. In

other words, without the open exhaust, there could be no exposure.

       State responds that appellants conflate the admissibility of the evidence with the

sufficiency of that evidence. That, indeed, the trial court could not rule as to whether the

evidence was sufficient to establish a superseding cause without first admitting it. State also

argues that appellants misunderstand the law, that contrary to appellants’ position, it does not

have to prove that it was not negligent in order for the evidence relating to superseding causation

to be admissible. Finally, State argues that even if it was negligent, it presented ample evidence

that other factors such as improper installation and lack of maintenance superseded any

negligence in manufacturing.

       “Issues of negligence and proximate causation ordinarily are questions of fact for the

jury’s determination. A court decides these issues only when reasonable persons could not

differ.” Atkinson v. Scheer, 256 Va. 448, 453-54, 508 S.E.2d 68, 71 (1998) (quoting Brown v.




                                                 9
Koulizakis, 229 Va. 524, 531, 331 S.E.2d 440, 445 (1985)). 3 “The proximate cause of an event

is that act or omission which, in natural and continuing sequence, unbroken by an efficient

intervening cause, produces the event, and without which that event would not have occurred.”

Kellermann v. McDonough, 278 Va. 478, 493, 684 S.E.2d 786, 793 (2009) (internal quotation

marks and citations omitted).

       Under Virginia law, “the extraordinary manner in which harm occurs may prevent the

primary actor's conduct from being the proximate cause of an event.” Banks v. City of

Richmond, 232 Va. 130, 137, 348 S.E.2d 280, 283 (1986). Thus, even if the primary actor is the

“but for” cause of an injury, an action that is so highly extraordinary as to be unforeseeable may

serve to cut off legal causation. Id. at 136, 348 S.E.2d at 283 (“[The plaintiff] complains that had

the gas been cut off at the meter there would have been no explosion. Yet, that simplistic ‘but

for’ argument does not resolve the proximate cause question.”). In other words, even if a

defendant is in fact “negligent,” and his “negligence created a situation of potential danger,” if an

unforeseeable “independent intervening act” ultimately “brought about the accident,” then “the

situation of danger created by the defendant’s negligence [becomes] merely a circumstance of

the accident but not a proximate cause” of the accident. Chereskin v. Turkoglu, 235 Va. 448,




       3
          The analysis of a superseding cause is distinct from that of joint and several liability.
This is the distinction drawn in Virginia law in not allowing the “empty chair defense.” Without
question the law is that a litigant “can not be exonerated by urging and showing the negligence”
of other parties or nonparties. Von Roy v. Whitescarver, 197 Va. 384, 393, 89 S.E.2d 346, 352
(1955). Indeed, “[t]o show that other causes concurred in producing, or contributed to the result
is no defense to an action for negligence.” Carolina, Clinchfield & Ohio Ry. Co. v. Hill, 119 Va.
416, 421, 89 S.E.2d 902, 904 (1916). Superseding cause, however, is different because “a
superseding cause of an injury constitutes a new effective cause and operates independently of
any other act, making it and it only the proximate cause of injury.” Kellermann v. McDonough,
278 Va. 478, 493-94, 684 S.E.2d 786, 794 (2009) (internal quotation marks and citations
omitted).



                                                 10
450, 369 S.E.2d 161, 162 (1988) (recognizing this as an “inartfully” expressed but nonetheless

“correct principle of law”).

       Indeed, we have recognized that a defendant may be negligent and still not be liable for

the resulting injury. This occurs when there is a sufficient intervening act.

               In order to relieve a defendant of liability for his negligent act, the
               negligence intervening between the defendant’s negligent act and
               the injury must so entirely supersede the operation of the
               defendant's negligence that it alone, without any contributing
               negligence by the defendant in the slightest degree, causes the
               injury. Thus, a superseding cause of an injury “constitutes a new
               effective cause and operates independently of any other act,
               making it and it only the proximate cause of injury.” Maroulis v.
               Elliott, 207 Va. 503, 511, 151 S.E.2d 339, 345 (1966).

Atkinson, 256 Va. at 454, 508 S.E.2d at 71-72 (quoting Jenkins v. Payne, 251 Va. 122, 128-29,

465 S.E.2d 795, 799 (1996)). We have also recognized that an intervening cause is not a

superseding cause if it was put into operation by the defendant’s wrongful act or omission.

Jefferson Hosp., Inc. v. Van Lear, 186 Va. 74, 81, 41 S.E.2d 441, 444 (1947).

       “The manufacturer is not an insurer and is not required to design and market an accident-

proof product. The manufacturer is under a duty to exercise ordinary care to design a product

that is reasonably safe for the purpose for which it is intended.” Turner v. Manning, Maxwell &

Moore, Inc., 216 Va. 245, 251, 217 S.E.2d 863, 868 (1975). “[A]n implied warranty of general

merchantability [arises] when the product is being used in the manner intended for it. The

implied warranty does not apply when the product is being used in a manner or for a purpose for

which it was not intended.” Id. at 252, 217 S.E.2d at 869.

       The appellants presented evidence in the form of testimony from Bicknese that the

apartment had an adequate volume of combustion air but the problem was “the sensitivity of the

design of the water heater to slight changes in pressure within the building.” According to




                                                 11
Bicknese, the atmospheric heater was “unreasonably dangerous” and unfit for the purpose for

which it was intended because of design flaws that prevented it from venting properly.

       Conversely, State’s expert opined that the opening at the draft hood of the atmospheric

heater did not render it unreasonably dangerous at the time it was manufactured and that the

atmospheric heater operated appropriately until new carpet was installed in the Apartment which

reduced the airflow when the bedroom doors were closed. His opinion was that there might have

been more than one proximate cause, such as improper installation and inadequate maintenance,

but that design was not a proximate cause. State’s position was that there was no negligence on

its part, but, even if there was, the evidence indicated that any danger posed by the design could

have been completely alleviated by proper installation and maintenance.

       State was entitled to present a defense showing that its product was not defective. We

have previously recognized the importance of evidence as to other potential causes in products

liability cases. See Turner, 216 Va. at 249-50, 217 S.E.2d at 867 (approving receipt of evidence

that a hoist was being misused at time of accident); Jeld-Wen, Inc. v. Gamble, 256 Va. 144, 149-

50, 501 S.E.2d 393, 397 (1998) (noting controlling effect of evidence of possible product

misuse); Besser Co. v. Hansen, 243 Va. 267, 277-78, 415 S.E.2d 138, 144 (1992) (legal

relevance of evidence of product misuse); Logan v. Montgomery Ward & Co., 216 Va. 425, 428,

219 S.E.2d 685, 687 (1975) (noting that the evidence did not eliminate the possibility that the

blame could have attached to some party other than the manufacturer such as the installer).

From the evidence presented, the jury could have found that (1) the building design called for an

electric water heater, but an atmospheric heater was installed instead; (2) no inspection was

performed and had one been performed, the atmospheric heater would not have passed

inspection because there was no system designed for the free circulation of air; (3) the




                                                12
installation did not comply with the national Fire Gas Code; and (4) the T&P valve

malfunctioned due to non-maintenance.

        Because State was entitled to present a defense and because there was evidence from

which the jury could have found that State’s negligence, if it existed, was superseded, the trial

court did not abuse its discretion in admitting State’s evidence of superseding causation.

                                        C. Jury Instruction 22

        Finally, appellants argue that the trial court erred in giving Jury Instruction 22 because it

misstated the law and the instruction was not supported by State’s evidence. Their argument is

two-fold: (1) that Jury Instruction 22 was confusing, and (2) that it lacked an essential concept

relating to the burden of proof. 4

                When we review the content of jury instructions, our sole
                responsibility . . . is to see that the law has been clearly stated and
                that the instructions cover all issues which the evidence fairly
                raises. Whether the content of the instruction is an accurate
                statement of the relevant legal principles is a question of law that,
                like all questions of law, we review de novo.

Cain v. Lee, __ Va. __, __, 772 S.E.2d 894, 896 (2015) (internal quotation marks and citations

omitted).

        Jury Instruction 22 stated: “A superseding cause is an independent event, not reasonably

foreseeable, that completely breaks the connection between the defendant’s negligent act and the

plaintiff’s injury. A superseding cause breaks the chain of events so that the defendant’s original

negligent act is not a proximate cause of the plaintiffs’ injury in the slightest degree.” In

Williams v. Cong Le, 276 Va. 161, 662 S.E.2d 73 (2008), we endorsed a jury instruction

containing substantively the exact language given here; therefore, the instruction is a correct
        4
         Appellants’ additional arguments on brief detailing what the instruction should have
contained were not raised before the trial court, and accordingly are procedurally defaulted by
operation of Rule 5:25. We decline to apply the ends of justice exception in that Rule to enable
review of these arguments on appeal.


                                                   13
statement of law. 5 See id. at 166-67, 662 S.E.2d at 76-77. In that case, we reversed the trial

court’s judgment because the evidence presented did not support giving a superseding cause jury

instruction.

           “[J]ury instructions are proper only if supported by the evidence, and more than a

scintilla of evidence is required.” Lawlor v. Commonwealth, 285 Va. 187, 228, 738 S.E.2d 847,

870-71 (2013) (quotation marks and citations omitted). Here, as discussed supra, there was

“more than a scintilla of evidence” to support giving a superseding cause jury instruction. Id.

The trial court did not err in granting Jury Instruction 22.

           Finally, appellants argue that Jury Instruction 22 should not have been given because it

did not instruct the jury that the burden of proof is on a defendant asserting a superseding cause.

Appellants did not propose any additional jury instructions to address the burden of proof for

superseding cause. Because appellants failed to proffer a burden of proof jury instruction

relating to superseding causation, we are precluded from addressing the merits of this portion of

appellants’ second assignment. Accordingly, this portion of the jury instruction argument is

waived on appeal pursuant to Rule 5:25. See Cherrix v. Commonwealth, 257 Va. 292, 311, 513

S.E.2d 642, 654 (1999) (a party’s “failure to proffer” a correcting or proposed alternative or

supplemental “instruction . . . precludes us from addressing the merits of this assignment of

error”).

                                          III. CONCLUSION

           For the foregoing reasons, we will affirm the judgment of the trial court.

                                                                                           Affirmed.



           5
          As noted in the appellants’ opening brief, Jury Instruction 22 is the definition of
superseding cause appearing in the Virginia Model Jury Instructions. See 1 Virginia Model Jury
Instructions – Civil, No. 5.010 (2014).


                                                   14
CHIEF JUSTICE LEMONS, with whom SENIOR JUSTICE MILLETTE joins, dissenting in
part.

        In my view, the trial court erred in giving Jury Instruction 22; consequently, the judgment

should be reversed and the case remanded for a new trial.

        “The proximate cause of an event is that act or omission which, in natural and continuous

sequence, unbroken by an efficient intervening cause, produces the event, and without which that

event would not have occurred.” Williams v. Cong Le, 276 Va. 161, 167, 662 S.E.2d 73, 77

(2008) (internal quotation marks and citations omitted). There may be more than one proximate

cause of an event. Id. A subsequent proximate cause may or may not relieve a defendant of

liability for his negligence. Id. "In order to relieve a defendant of liability for his negligent act,

the negligence intervening between the defendant’s negligent act and the injury must so entirely

supersede the operation of the defendant’s negligence that it alone, without any contributing

negligence by the defendant in the slightest degree, causes the injury.” Id. (internal quotation

marks and citations omitted) (emphasis added). It is well established in Virginia that “a

superseding cause of an injury constitutes a new effective cause and operates independently of

any other act, making it and it only the proximate cause of injury.” Kellermann v. McDonough,

278 Va. 478, 493-94, 684 S.E.2d 786, 794 (2009) (internal quotation marks and citations

omitted). “To be a superseding cause, whether intelligent or not, it must so entirely supersede

the operation of the defendant’s negligence, that it alone, without the defendant’s contributing

negligence thereto in the slightest degree, produces the injury.” City of Richmond v. Gay, 103

Va. 320, 324, 49 S.E. 482, 483 (1905). Therefore, “a superseding cause is a new cause of a

plaintiff’s injury, becoming the only proximate cause of that injury.” Williams v. Joynes, 278

Va. 57, 63, 677 S.E.2d 261, 264 (internal citations omitted).




                                                  15
       We have had numerous opportunities to consider cases involving negligence and

allegations of superseding causation. In Williams v. Cong Le, the plaintiff alleged that Dr. Le, a

radiologist, had breached the standard of care by failing to make “direct communication with the

physician who ordered the study or with one of their physicians who was covering or a nurse or

the patient directly” so that the treating physician could initiate prompt treatment. 276 Va. at

165-66, 662 S.E.2d at 76. Although Dr. Le failed to make this direct communication, the

treating physician nonetheless ordered the results of the diagnostic study, and the day after the

study was performed the results were received by the treating physician’s clinical assistant and

the treating physician was notified that the results had arrived and were ready for his review. Id.

at 165-66, 662 S.E.2d at 75-76. A review of the report would have demonstrated that the patient

was suffering from deep vein thrombosis. However, the treating physician did not review the

report until almost two weeks later, after the patient died from a pulmonary embolism. Dr. Le

argued that even if he was negligent for not making direct contact with the treating physician,

staff, or patient, that the subsequent negligence by the treating physician in failing to check the

diagnostic report broke the chain of events between Dr. Le’s negligence and the patient’s

subsequent death. Id. at 166-67, 662 S.E.2d at 77. We disagreed. Instead, we held that the trial

court erred in granting a jury instruction on superseding causation, because it could not be said

“that Dr. Le’s alleged negligence was not contributing ‘in the slightest degree’ to the death of

Williams.” Id. at 167, 662 S.E.2d at 77.

       In Kellermann we reversed a trial court’s decision to sustain a demurrer. 278 Va. at 495,

684 S.E.2d at 794. In doing so, we had to determine whether the McDonoughs could be held

liable in tort for the wrongful death of Jaimee Kellermann, or whether the acts of a third party

were the sole proximate cause of Jaimee’s death. Id. at 493, 684 S.E.2d at 793. Jaimee




                                                 16
Kellerman, a 14-year-old girl, was staying with the McDonoughs when she was killed in an

automobile accident. The driver of the vehicle was a 17-year-old boy, who was traveling at least

77 miles per hour at the time of the accident. Id. at 486, 684 S.E.2d at 789. Before her father

entrusted Jaimee into the care of Paula McDonough for the weekend, he made her promise that

Jaimee would not be allowed to ride in a car with any young, male drivers. Id. at 484-85, 684

S.E.2d at 789. Paula McDonough agreed to that condition, but then later allowed Jaimee to ride

in a vehicle driven by a 17-year-old boy. Id. We held that, under these facts, a jury could find

that the McDonoughs breached their duty of care and supervision of Jaimee, that their breaches

of duty constituted a proximate cause of Jaimee’s death, and that the 17-year-old driver’s acts did

not constitute a superseding act between the McDonoughs’ alleged negligence and Jaimee’s

death. Id. at 494, 684 S.E.2d at 794.

       In Williams v. Joynes, a legal malpractice case, we reversed a trial court’s grant of

summary judgment. The defendant attorney had failed to file the plaintiff’s law suit within

Virginia’s two-year statute of limitations, but advised the plaintiff, Williams, that he might still

be able to file suit in Maryland. Williams failed to file a suit in Maryland, and then filed a legal

malpractice case against the attorney. The trial court determined that the plaintiff’s failure to file

a lawsuit in Maryland was a superseding cause that relieved the defendant attorneys from

liability for the plaintiff’s loss of his personal injury action. 287 Va. at 61, 677 S.E.2d at 263.

We disagreed. We held that Williams’ failure to file a Maryland suit was not a superseding

event severing the link of proximate causation between the attorney’s negligence and the

resulting harm suffered by Williams. Id. at 63-64, 677 S.E.2d at 265. It was the attorney’s

negligent failure to file in Virginia that set in motion the need for Williams to even consider

filing a Maryland lawsuit. Id.




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       These cases all illustrate examples of intervening causation. In all of these cases, there

was an original act of negligence by the defendant. There were then subsequent, intervening

actions that contributed to the ultimate injury suffered by the plaintiff. However, none of these

intervening acts so entirely superseded the operation of the defendant’s negligence that these

intervening acts alone, without the defendant’s contributing negligence thereto in the slightest

degree, produced the injury. Gay, 103 Va. at 324, 49 S.E. at 483.

       The majority cites Banks v. City of Richmond, 232 Va. 130, 348 S.E.2d 283 (1986), and

Chereskin v. Turkoglu, 235 Va. 448, 369 S.E.2d 161 (1988), in its discussion of superseding

causation. Those two cases provide examples of situations where there was superseding

causation. In Banks, the plaintiff sued for damages resulting from a natural gas explosion in her

apartment in Richmond. 232 Va. at 131, 348 S.E.2d at 280. The plaintiff alleged that the City of

Richmond was negligent for failing to make repairs of defective gas appliances and pipes. Id.

The trial court held, however, that the City’s negligence did not proximately cause the plaintiff’s

injuries. The trial court struck the plaintiff's evidence, apparently concluding that the proximate

cause of the explosion was the action of a repairman, who was investigating the smell of gas, and

lit a cigarette lighter to look inside the oven. Id. at 134, 348 S.E.2d at 282. We affirmed the trial

court’s judgment, holding that the repairman’s conduct was “an intervening independent act that

affected and was the immediate cause of the injury.” Id. at 136, 348 S.E.2d at 283.

       In Chereskin, the defendant police officer was driving his vehicle when he struck the

plaintiff, who was walking in a parking lot. 235 Va. at 449, 369 S.E.2d at 161. The plaintiff

alleged the defendant was negligent for striking him. However, at trial, there was evidence

presented that one of the plaintiff’s companions actually picked him up and threw him in front of

the moving vehicle. Id. at 449-50, 369 S.E.2d at 162. The defendant requested a jury instruction




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on superseding causation, which the trial court denied. Id. at 450, 369 S.E.2d at 162. In a brief

per curiam opinion, we reversed that ruling, in light of the evidence of the third party’s action in

throwing the plaintiff in front of the moving vehicle. Id. Just as in Banks, the unforeseeable

conduct – a third-party throwing the plaintiff in front of the defendant's moving vehicle – was the

required evidentiary support for granting the instruction and the trial court erred in its refusal to

do so.

         The actions by the repairman in Banks and the third party companion in Chereskin were

extraordinary unforeseeable actions that served to break the chain of causation. Such

unforseeability is not present in this case. Is it unforeseeable that routine maintenance might be

negligently performed? Is it unforeseeable that a landlord or a tenant might install carpet in an

apartment? I think not. Simply stated, there was not a scintilla of evidence to support Jury

Instruction 22 because the intervening causes involved in the present case were within the realm

of foreseeability. The facts of this case are akin to the ones described in Cong Le, Kellermann,

and Joynes.

         In this case, the appellants’ expert testified that State’s design of the water heater was

defective because the open-exhaust design of the heater allowed carbon monoxide to escape the

exhaust vent. The evidence also proved that State designed and sold other water heaters with

closed exhaust systems that would not allow carbon monoxide or other gases to escape into

living spaces. Because the closed-exhaust design was a technologically and economically

feasible alternative, appellants argued that State was negligent in continuing to manufacture and

sell open-exhaust water heaters. State presented evidence that the water heater in appellants’

apartment had been both improperly installed and improperly maintained. There was also

evidence presented that the recent installation of new carpet had affected the air flow in the




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apartment. State argued that these factors superseded any alleged negligence on its part in the

manufacture and design of the water heater. However, there is no dispute that the carbon

monoxide was able to enter the apartment because it escaped from the open exhaust feature of

the water heater. State’s own expert admitted that the backdraft and build-up of carbon

monoxide would not have occurred with a closed exhaust design or vent that pulled the gases out

of the apartment.

       A litigant is entitled to a jury instruction supporting his or her theory of the case if

sufficient evidence is introduced to support that theory and if the instructions correctly state the

law. Holmes v. Levine, 273 Va. 150, 159, 639 S.E.2d 235, 239 (2007). The evidence introduced

in support of a requested instruction must amount to more than a scintilla. Id. Accordingly, a

jury instruction on superseding causation would only be proper in this case if reasonable persons

could conclude from the evidence, and reasonable inferences therefrom, that improper

installation and maintenance of the water heater, along with the installation of new carpet,

“without any contributing negligence” by State in the design of the water heater, “in the slightest

degree,” caused the appellants’ injuries. See Cong Le, 276 Va. at 167, 662 S.E.2d at 77.

       In this case, however, even if the improper installation and maintenance, in addition to

the new carpet, contributed to the production of carbon monoxide within the water heater, these

factors did not cause the release of the carbon monoxide into the apartment. The open exhaust

design of the water heater is what allowed the carbon monoxide to enter the apartment where

appellants were sleeping. If this water heater had a closed exhaust system, as State’s other

designs did, carbon monoxide would not have been able to enter the apartment, but rather would

have been vented outside. The release of the carbon monoxide into the appellants’ apartment

while they were sleeping is what caused their injury.




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       The factors identified by State as “superseding” causes are actually “intervening” causes.

The alleged improper installation, improper maintenance, and new carpet may have contributed

to the chain of events leading to appellants’ injuries. But these factors are not superseding

causes. Without the original open exhaust design, these factors could not have caused

appellants’ injuries. None of these factors could have independently caused carbon monoxide to

be released into the apartment. And in order to constitute a superseding cause, a factor or action

must “operate[] independently of any other act, making it and it only the proximate cause of

injury.” Kellermann, 278 Va. at 493, 684 S.E.2d at 794. To be a superseding cause, whether

intelligent or not, it must so entirely supersede the operation of the defendant’s negligence, that it

alone, without the defendant’s contributing negligence thereto in the slightest degree, produces

the injury. Gay, 103 Va. at 324, 49 S.E. at 483.

       State maintained that it was not negligent in the design of the water heater. Had the case

gone to the jury only on an instruction to this effect, I would not author this dissent. However,

the jury may have found that State was negligent and excused their negligence based upon a

superseding negligence instruction which I believe was erroneously given. On this record, it

cannot be said that State’s design of an open exhaust, which allowed carbon monoxide to escape

the exhaust vent and enter the living space, was not contributing “in the slightest degree” to the

appellants’ injuries. The trial court therefore erred in granting the superseding causation

instruction. Where an instruction has been erroneously submitted to the jury and the record does

not reflect whether such instruction formed the basis of the jury’s verdict, we must presume that

the jury relied on such instruction in making its decision. Cong Le, 276 Va. at 168, 662 S.E.2d

at 77. Accordingly, I would reverse the judgment of the trial court and remand the case for a

new trial.




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