J-A07012-17

J-A07013-17

                            2018 PA Super 125

JENNIFER M. STRAW AND THOMAS P.                 IN THE SUPERIOR COURT
STRAW, INDIVIDUALLY AND AS CO-                            OF
ADMINISTRATORS OF THE ESTATE OF                      PENNSYLVANIA
ELIJAH C. STRAW, DECEASED; AND
ROWAN J. STRAW, A MINOR, BY AND
THROUGH HIS PARENTS AND NATURAL
GUARDIANS, JENNIFER M. STRAW AND
THOMAS P. STRAW

                    v.

KIRK A. FAIR AND GOLON MASONRY
RESTORATION, INC.

                    v.

PITTSBURGH LUBES, INC. D/B/A JIFFY
LUBE, TOWER AUTO SALES & SERVICE,
NATIONAL AUTOMOTIVE PARTS
ASSOCIATION-NAPA AUTO PARTS
T/D/B/A NAPA

                    v.

THOMAS P. STRAW

APPEAL OF: GOLON MASONRY
RESTORATION, INC.
                                                  No. 742 WDA 2016


               Appeal from the Judgment Entered April 28, 2016
              In the Court of Common Pleas of Allegheny County
                    Civil Division at: G.D. No. 2013-003294


JENNIFER M. STRAW AND THOMAS P.                 IN THE SUPERIOR COURT
STRAW, INDIVIDUALLY AND AS CO-                            OF
ADMINISTRATORS OF THE ESTATE OF                      PENNSYLVANIA
ELIJAH C. STRAW, DECEASED; AND
ROWAN J. STRAW, A MINOR, BY AND
THROUGH HIS PARENTS AND NATURAL
J-A07012-17


    GUARDIANS, JENNIFER M. STRAW AND
    THOMAS P. STRAW

                        v.

    KIRK A. FAIR AND GOLON MASONRY
    RESTORATION, INC.


                        v.

    PITTSBURGH LUBES, INC. D/B/A JIFFY
    LUBE, TOWER AUTO SALES & SERVICE,
    NATIONAL AUTOMOTIVE PARTS
    ASSOCIATION-NAPA AUTO PARTS
    T/D/B/A NAPA

                        v.

    THOMAS P. STRAW

    APPEAL OF: KIRK A. FAIR
                                                      No. 743 WDA 2016


                Appeal from the Judgment Entered April 28, 2016
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No.: G.D. 13-003294


BEFORE: OLSON, STABILE, and STRASSBURGER, JJ.*

DISSENTING OPINION BY STABILE, J.:                    FILED MAY 11, 2018

        The Majority would vacate the judgment entered in favor of the Straws

and remand for a new trial based on its belief that the trial court erred in

granting summary judgment in favor of Additional Defendants, including

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*   Retired Senior Judge assigned to the Superior Court.




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Straw.1     I believe the trial court correctly determined that Additional

Defendants, Jiffy Lube, Tower Auto, NAPA Auto Parts, and Thomas Straw

(collectively “Additional Defendants”), were entitled to summary judgment

because Fair’s conduct was a superseding cause of the accident, thus relieving

Additional Defendants from liability. Therefore, I dissent.

       Eight months prior to this May 1, 2012 tragic motor vehicle accident,

Tower Auto performed a required annual state inspection on the Straw vehicle

and serviced the hood latch by spraying it with lubricant to achieve proper

functionality. Five months before the accident, Straw returned his vehicle to

Jiffy Lube, where the oil had been changed, to advise an employee the hood

of his car was not closing properly. The employee performed some work on

the hood to get it to close. In March 2012, three months before the accident,

while at a NAPA Auto Parts store, Straw requested that a store employee look

at his hood latch. The employee advised him that the hood latch was working

properly and the car was safe to drive. Three months and several hundred

miles later, this accident occurred after the hood on Straw’s vehicle opened

while he was driving. Straw bought his vehicle to a controlled stop in the

center northbound lane of Route 28 because he could not see the road.

       Upon bringing his vehicle to a stop, Straw activated his hazard lights.

Thereafter, Defendant Fair, acting in an extraordinarily negligent manner as


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1 Like the Majority, I too am of the opinion that we have jurisdiction to
entertain this appeal.

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will be described infra, violently crashed into the rear of the Straw vehicle,

killing six-year-old Elijah Straw and severely injuring Thomas, Jennifer and

Rowan Straw. The question thus presented is whether Fair’s actions were a

superseding cause relieving the Additional Defendants of liability for any

antecedent negligence. For reasons more fully detailed below, I do not find it

necessary to examine the issues of duty and causation vis-à-vis the Additional

Defendants as the Majority so thoroughly has done, because I believe the

superseding negligence of Fair makes that analysis unnecessary.

     In every negligence action, a plaintiff must prove, inter alia, that a

defendant’s actions were both the proximate cause and cause in fact of the

plaintiff’s injury. Reilly v. Tiergarten Inc., 633 A.2d 208, 210 (Pa. Super.

1993). Proximate cause is a question of law to be determined by a judge and

must be established before the question of actual cause can be submitted to

a jury. Id. This question of proximate or legal causation essentially regards

whether the negligence, if any, was so remote that as a matter of law the

actor cannot be held legally responsible for the harm that occurred. Id. A

court must determine whether an ordinary person would foresee that an injury

would be a natural, probable outcome of the act complained of. Id. As the

Majority correctly recognizes, conduct is a proximate cause of a plaintiff’s

harm when the conduct is “a substantial factor in bringing about the harm.”

Majority Opinion at 52 (quoting Jones v. Montefiore Hosp., 431 A.2d 920,




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923 (Pa. 1981)).2 As this Court explained in Brown v. Philadelphia College

of Osteopathic Medicine, 760 A.2d 863 (Pa. Super. 2000):

       Proximate cause “is primarily a problem of law” and “it is a
       Pennsylvania court’s responsibility to evaluate the alleged facts
       and refuse to find an actor’s conduct the legal cause of harm ‘when
       it appears to the court highly extraordinary that [the actor’s
       conduct] should have brought about the harm.’” [Bell v. Irace,
       619 A.2d 365, 367 (Pa. Super. 1993)] (emphasis in original).
       Thus, proximate cause must “be determined by the judge and it
       must be established before the question of actual cause is put to
       the jury.” Reilly [v. Tiergarten Inc., 633 A.2d 208, 210 (Pa.
       Super. 1993)].




____________________________________________


2 The principle that conduct is a proximate cause of a plaintiff's harm when
the conduct is a "substantial factor" in bringing about the harm is well
entrenched in our jurisprudence. It is worth noting that section 13.20 of the
current version of the Pennsylvania Suggested Standard Civil Jury Instructions
(“SSJI”) does not recommend instructing a jury on this component of a
negligence action, believing the term to be the epitome of vagueness. See
Comment to § 13.20. Instead, the recommended instruction suggests a jury
be instructed to determine whether a defendant's conduct was a “factual
cause” in bringing about the harm. The proposed instruction suggests the
jury be instructed that “to be a factual cause, the conduct must have been an
actual, real factor in causing the harm, even if the result is unusual or
unexpected. A factual cause cannot be an imaginary or fanciful factor having
no connection or only an insignificant connection with the harm." I would not
deem the use of the term “factual cause” in a jury instruction to be
inconsistent with “substantial factor.” See Ford v. Jeffries, 379 A.2d 111,
114 (Pa. 1977) (“the issue is whether the defendant's conduct was, on the
one hand, a ‘substantial factor’ or a ‘substantial cause’ or, on the other hand,
whether the defendant’s conduct was an ‘insignificant cause’ or a ‘negligible
cause.’”). See also Gorman v. Costello, 929 A.2d 1208, 1213 (Pa. Super.
2007) (SSJI provide guidance on how to fashion appropriate jury instructions
on the issue of factual cause). A trial judge has wide latitude in his choice of
language when charging a jury, provided always that the court fully and
adequately conveys the applicable law. See Hatwood v. Hospital of the
University of Pennsylvania, 55 A.3d 1229, 1235 (Pa. 2012).

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Id. at 868 (emphasis in original). “Liability is contingent upon the probability

or foreseeability of the resulting injury, not merely the possibility that it

could occur.”        Reilly, 633 A.2d at 210 (quotation omitted) (emphasis

added).

       A superseding cause breaks the chain of proximate causation between

a negligent act and a plaintiff’s injury. A superseding cause is an act of a third

person that, by its intervention, prevents an actor from being liable for harm

to another that his antecedent negligence is a substantial factor in bringing

about. Restatement (Second) of Torts § 440; Trude v. Martin, 660 A.2d

626, 632 (Pa. Super. 1995). “If in looking back from the harm and tracing

the sequence of events by which it was produced, it is found that a

superseding cause has operated, there is no need of determining whether the

actor’s antecedent conduct was or was not a substantial factor in bringing

about the harm.”         Restatement (Second) of Torts § 440, Comment b.

Superseding causes are intervening causes that operate after an actor’s

negligence has been committed.3

       In determining whether an intervening force is a superseding cause of

harm, guidance is found in the Restatement (Second) of Torts § 442, which

provides as follows:



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3 Not all intervening acts are superseding causes. Cf. Restatement (Second)
of Torts §§ 440 and 441.


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          The following considerations are of importance in determining
          whether an intervening force is a superseding cause of harm
          to another:

              (a)   the fact that its intervention brings about harm
                    different in kind from that which would otherwise
                    have resulted from the actor’s negligence;

              (b)   the fact that its operation or the consequences
                    thereof appear after the event to be extraordinary
                    rather than normal in view of the circumstances
                    existing at the time of its operation;

              (c)   the fact that the intervening force is operating
                    independently of any situation created by the
                    actor's negligence, or, on the other hand, is or is
                    not a normal result of such a situation;

              (d)   the fact that the operation of the intervening force
                    is due to a third person’s act or to his failure to act;

              (e)   the fact that the intervening force is due to an act
                    of a third person which is wrongful toward the other
                    and as such subjects the third person to liability to
                    him;

              (f)   the degree of culpability of a wrongful act of a third
                    person which sets the intervening force in motion.

See also Trude, supra (citing Restatement (Second) of Torts § 442).

Additional guidance is found in the Restatement (Second) of Torts § 447,

which defines when an intervening cause may not be a superseding cause of

harm.     Our Supreme Court reaffirmed adoption of § 447 in Grainy v.

Campbell, 425 A.2d 379 (Pa. 1981), wherein the Court explained:

        The Restatement (Second) of Torts, § 447 (1965) (hereinafter
        cited as § 447) [] formulates a test of when intervening negligence
        will relieve antecedent negligence. In § 447, the liability of the
        first actor continues whenever: (a) the first actor “should have
        realized” that the second actor “might so act”; (b) a reasonable

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J-A07012-17


       man would not regard the second actor’s action as “highly
       extraordinary”; or (c) the second actor’s conduct is a “normal
       consequence of the situation created” by the first actor and “not
       extraordinarily negligent.”

Id. at 381.4

       From these formulations, I believe two related factors are most

appropriate for consideration here: whether Fair’s intervening negligence was

extraordinary and not normal under the circumstances, and whether Fair’s

conduct operated independently of any situation created by the Additional

Defendants.      Under the circumstances of this accident, I conclude Fair’s

conduct was extraordinary, not normal,5 and a superseding cause of this

accident, thus relieving the Additional Defendants of any liability for the

Plaintiffs’ harm.

       On May 1, 2012,6 at approximately 7:30 p.m., Straw was traveling in

the center northbound lane on State Route 28 in Allegheny County,

____________________________________________


4The Court in Grainy noted that § 447 of the Restatement was adopted as
Pennsylvania law in Estate of Flickinger v. Ritsky, 305 A.2d 40 (1973).
Grainy, 425 A.2d at 381.

5 The use of the word "normal" in §§ 442 and 447 of the Restatement (Second)
of Torts is not used in the sense of what is usual, customary, foreseeable or
to be expected. Instead, it means when looking at a matter after an event
and knowing the situation that existed when a new force intervened, one
would not regard the intervening act as extraordinary, even though negligent.
See Comment (b) and Comment (c) to §§ 442 and 447 of the Restatement
(Second) Torts, respectively.

6 Like the Majority, I have recited facts herein taken from those considered by
the trial court in ruling upon the motions for summary judgment, including



                                           -8-
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Pennsylvania, near the RDIC Drive exit. It was daylight, the sky was clear,

traffic was light, and the highway was posted with a 55 mph speed limit. While

driving north on Route 28, the hood latch on Straw’s Pontiac Vibe

malfunctioned, causing the hood to release and lift, blocking Straw’s view of

the road. Straw brought his vehicle to a stop in the center lane of the highway

and activated his hazard lights. Upon stopping, Straw looked in his rearview

mirror and saw no cars approaching. Straw also stated that when he looked

in his rearview mirror, he saw a truck on the horizon line. He thought to

himself it was a good thing the truck was far enough back for its driver to

react. He estimated that while it seemed like an eternity, it was probably at

least five to eight seconds before the truck crashed into his car. At no time

were there any cars between his car and the truck. In fact, he did not recall

any traffic in the area at the time of the crash.

       Defendant Fair was driving north on Route 28 in a white F250 Ford truck.

Data obtained from Fair’s truck7 indicated he was driving approximately 71

mph for 19 seconds prior to impact and that Fair did not apply the brakes of

his truck until .6 seconds prior to impact. Fair admitted to taking his eyes off

the road to pick up some binders that fell on the floor of his truck. When he


____________________________________________


those facts admitted by Fair during his guilty plea colloquy and those from the
Pennsylvania State Police Accident Report.

7Data regarding the truck’s speed and brake application was obtained from a
download of the truck’s powertrain control and restraint modules.


                                           -9-
J-A07012-17


looked up, he noticed the Straw vehicle with its hazard lights on, but could

not avoid the collision.         According to Pennsylvania State Police crash

reconstruction, Fair would have been able to see the Straw vehicle

approximately 2,058 feet prior to impact if he were looking at the road. At a

speed of 71 mph, it would have taken Fair approximately 19 seconds to travel

that distance.

       Fair was criminally charged for his reckless conduct. He subsequently

pled guilty to homicide by vehicle, three counts of aggravated assault by

vehicle, four counts of recklessly endangering another person, exceeding 55

mph by 16 mph, and driving at a safe speed.8

       There was no impediment to Fair’s view of the Straw vehicle, had he

been looking at the road, or his ability to take action to avoid a collision.

Nevertheless, Fair, who was traveling in excess of the speed limit, 71 mph in

a 55 mph zone, did not change lanes or take any evasive action despite an

abundance of time to do so. Tellingly, the truck brakes were not engaged

until .6 of a second before impact, when his truck was slightly less than 60

feet from Straw’s vehicle. This accident would not have happened but for

Fair’s failure to look at the road and see the Straw vehicle that was visible

from more than 2,000 feet away.



____________________________________________


8 A person is required to drive a vehicle at a speed no greater than is
reasonable and prudent under the circumstances. 75 Pa.C.S.A. § 3361. A
violation of this statute is a summary offense under 75 Pa.C.S.A. § 6502.

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      Any “reasonable man” would certainly regard Fair’s action as “highly

extraordinary” under these circumstances. Every driver is taught the cardinal

rule that when driving your eyes must be upon the road at all times. Even

though violations of this rule occurs often and might be deemed “normal” in

the context of considering negligent actions, the extent of Fair’s reckless

conduct in this case cannot under any measure be considered “normal,” but

only as extraordinary.

      The Majority recognizes ordinary human experience indicates drivers

may commonly violate posted speed limits, may occasionally be inattentive to

the road, may occasionally drive dangerously, and may occasionally be

intoxicated.   Majority Opinion at 59.        Although these actions cannot be

condoned, it cannot be said that these transgressions are extraordinary, as

they unfortunately have become common ills upon our highways.         Instantly,

we are not presented with the all-too-common situation of negligent

inattention for a brief period of time, or the situation where a driver observes

a hazard but is unable to stop in time to avoid a collision because of speeding.

Instead, as stated, Fair had more than 2,000 feet of unobstructed sight on a

clear day before he crashed his truck into the Straw vehicle with its hazard

lights flashings. Fair tragically collided with the Straw vehicle because, for

reasons unrelated to the circumstances that placed the Straw vehicle upon

the highway, he took his eyes off the road while traveling 71 mph in a 55 mph

zone, applying his brakes only .6 of a second before he crashed into the Straw


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vehicle that was stopped on the highway with its hood raised. While the Straw

vehicle certainly presented a hazard on the highway, it cannot be said that it

was foreseeable that Fair would operate his vehicle in the extraordinary

manner he did.      This is especially so where, as here, there were multiple

factors in this scenario that would have allowed Fair to avoid this collision.

        Fair’s conduct also cannot be said to be a “normal consequence of [any]

situation created” by Additional Defendants. See Grainy, 425 A.2d at 381.

It is “possible” that someone would drive a vehicle at approximately 71 miles

per hour without looking at the roadway for nearly twenty seconds and would

fail to observe a stopped vehicle with flashing hazard lights on an empty

highway during daylight hours. However, it clearly is not “probable” that these

actions could be deemed foreseeable.           It cannot be said that Fair’s

recklessness was the type of foreseeable negligence that one might anticipate

as contributing to any harm caused by any antecedent negligence of other

parties. Fair’s reckless actions were extraordinary and cannot be considered

a normal consequence of any situation created by the Additional Defendants.

His conduct, therefore, was the superseding cause of this accident.

        Similarly, I also would conclude that Fair’s conduct was a superseding

force operating independently of any situation created by the Additional

Defendants and, again, were not a normal result of any situation created by

them.     The Plaintiffs’ harm was not caused by the actions of any of the

Additional Defendants who may have looked at or attempted to repair the


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hood latch on the Straw vehicle. Nor was the harm caused by Straw’s decision

to bring his vehicle to a stop in the center lane of the highway and engage his

hazard lights. Instead, this tragic accident was caused by Fair’s independent

decision to take his eyes off the road while rearranging binders on the floor of

his truck, all while significantly exceeding the posted speed limit. His decision

to do so was unrelated to, and not in response to, any antecedent negligence

that may have been created by the Additional Defendants. Nor was Fair’s

decision to take his eyes off the road a normal result of any antecedent

negligence that may have been committed by the Additional Defendants.

Fair’s actions were the superseding cause of Plaintiffs’ harm.

      A review of Pennsylvania case law since the adoption of the Restatement

(Second) of Torts § 447 reveals that our courts have only infrequently

determined that conduct constituted a superseding cause warranting dismissal

of a case on preliminary objections or the grant of summary judgment. Even

with this paucity of cases, I find a number of them to be instructive to support

the result I would reach in this case.

      In Jamison v. City of Philadelphia, 513 A.2d 479 (Pa. Super. 1986),

this Court sustained the grant of preliminary objections in the nature of a

demurrer, finding that the actions of a third party were a superseding cause

of the appellant’s injuries. In that case, the appellant was injured when a thief

negligently operated a stolen vehicle while attempting to elude police officers.

The stolen vehicle, a Mazda, was valet parked on the upper level of a garage


                                     - 13 -
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operated by the defendant Blara Parking Corporation (“Blara”), located at

Eleventh and Clinton Streets in Philadelphia. Before midnight, the Mazda was

stolen by Reginald Lambert.       When police observed the stolen car, they

pursued it. During the pursuit, the car was operated at a high rate of speed

and subsequently collided with a vehicle in which the plaintiff/appellant

Jamison was riding as a passenger. Jamison sustained serious injury.

      This Court held that if Blara was careless in allowing the Mazda to be

stolen, it cannot be said to have been negligent toward the plaintiff/appellant,

whose injury was not a foreseeable consequence of the theft.            The thief’s

careless operation of the stolen vehicle was a superseding cause of the

plaintiff’s/appellant’s injuries, for which Blara could not be held liable.      In

reaching this conclusion, we observed that the case was not one where the

plaintiff’s complaint averred facts sufficient to permit a finding that Blara either

knew or should have known the vehicle was likely to be stolen by an

incompetent driver or that the thief would drive the vehicle in a negligent or

reckless manner.      Had that been the case, the result might have been

different. We stated, “It is fundamental that one is not to be held liable for all

possible consequences, but only for the probable consequences.” Id. at 481

(citation omitted).

      I find Jamison particularly instructive in examining superseding cause

because it demonstrates how the foreseeability of conduct—or conduct that is

expected as opposed to extraordinary—can affect causation in a case.             In


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Jamison, it was not foreseeable or probable that the defendant Blara could

have expected the vehicle would be stolen by an incompetent driver and be

driven in a negligent or reckless manner. Likewise, the Additional Defendants

here could not have foreseen or anticipated that Fair would operate his truck

in the extraordinarily negligent manner he did when the Straw vehicle was

stopped upon the highway.

      I note the Commonwealth Court has found superseding cause on at least

two occasions.    “Although decisions by the Commonwealth Court are not

binding on this Court, they may be persuasive.” In re Barnes Foundation,

74 A.3d 129, 134 n. 2 (Pa. Super. 2013), appeal denied, 80 A.3d 774 (Pa.

2013) (citation omitted).

      In Beitler v. City of Philadelphia, 738 A.2d 37 (Pa. Cmwlth. 1999),

appeal denied, 561 Pa. 679 (Pa. 2000), a Philadelphia police officer stopped

his vehicle with its roof lights activated in the left lane on the westbound side

of the Schuylkill Expressway while he went over the highway median to assist

Roldan, whose vehicle was disabled in the left lane on the eastbound side of

the divided highway. While the officer was assisting Roldan, Beitler drove her

vehicle into the rear of the police vehicle and was injured. Beitler brought an

action against, inter alia, the City and Roldan.

      Rolden filed preliminary objections to Beitler’s complaint, contending

that the causal chain between his car losing power and stopping on the

eastbound side of the expressway and harm to Beitler on the westbound side


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was too remote. Roldan asserted that the conduct of the officer constituted a

superseding cause, because one could not reasonably be expected to foresee

that the officer would stop his vehicle in the roadway on the other side of the

highway in order to assist Roldan, rendering the officer's conduct highly

extraordinary.

      Referring to Section 447 of the Restatement (Second) of Torts, Roldan

argued the issue was whether the actor (Roldan) should have realized that a

third party might act in a particular manner; whether a reasonable person

would regard the third-party act as highly extraordinary; and whether the

intervening act was a normal consequence of the situation created by the actor

and the manner in which the act was carried out was not extraordinarily

negligent. As such, Roldan maintained his negligence, if any, was too remote

a cause of Beitler’s injuries and the officer’s conduct was a superseding cause

of the accident. The trial court sustained the preliminary objections and the

Commonwealth Court affirmed, based on superseding cause.

      In Chacko v. Commonwealth, Department of Transportation, 611

A.2d 1346 (Pa. Cmwlth. 1992), the plaintiffs were passengers in a car

operated by a diabetic who lost consciousness and control of the vehicle. The

vehicle left the roadway and struck a utility pole. The trial judge found that

the driver’s loss of consciousness was the superseding cause of the plaintiffs’

injuries and that the City of Philadelphia, which was alleged to have been

negligent in designing the road and permitting placement of the utility pole,


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was entitled to summary judgment. Id. at 1349-50 (citing Vattimo v. Lower

Bucks Hospital, Inc., 465 A.2d 1231 (Pa. 1983) and Restatement (Second)

of Torts §§ 440 and 442). The Commonwealth Court affirmed, finding the

trial court did not err or abuse its discretion in granting summary judgment

on the basis of superseding cause while noting that whether a force is a

superseding cause is generally a question for the fact finder. However, “in

cases where a jury may not reasonably differ, it is proper for the court to make

a determination of causation.” Id. at 1350 n. 2 (citing Vattimo, 465 A.2d at

1234).

      As in Beitler and Chacko, I believe it was proper for the trial court here

to make a determination of causation.         Further, I believe the trial court

correctly concluded that an ordinary person would not have foreseen that the

harm suffered by the Straws was a natural and probable outcome of the acts

complained of on the parts of the Additional Defendants, including Straw.

Therefore, I find the trial court properly concluded that Fair’s conduct was a

superseding cause of the accident.

      Respectfully, I also take issue with other parts of the Majority’s analysis.

      Citing Powell v. Drumheller, 653 A.2d 619 (Pa. 1995), the Majority

concludes that the determination of whether Fair’s actions were so

extraordinary and, thus, a superseding cause of Plaintiffs’ injuries, is one to

be made by a jury. Majority Opinion at 55, 59. This, however, is not always

the case, and I do not find it to be the case under the facts presented here.


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Powell speaks both to when a question of superseding cause is for the jury

and to when it may be decided as a matter of law by a court. While it is true

Powell held that a determination of whether an act is so extraordinary as to

constitute a superseding cause is normally one to be made by a jury, this

principle was stated in the context of when facts are in dispute, when room

exists for a difference of opinion as to whether certain conduct is superseding,

or where facts are such that reasonable minds could differ as to whether an

intervening act or cause constitutes a superseding act or cause. Powell, 653

A.2d at 624. However, Powell also held that when undisputed facts show

that conduct is so extraordinary as to constitute a superseding cause and only

one inference can be drawn, it is a question of law for the court to determine

whether there is a superseding cause preventing a defendant’s act from being

the proximate cause of an injury. Id.

         Here, the undisputed facts surrounding the manner in which this

accident occurred and in which Fair operated his truck lead to only one

inference: that Fair’s conduct was extraordinary. The record does not reveal

any other facts from which an inference can be drawn to suggest that Fair’s

actions were done other than in the reckless manner stated.        Therefore, I

believe the question of superseding cause in this case was one of law for the

court.




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      On the merits as to whether Fair’s conduct constituted a superseding

cause relieving the Additional Defendants of any antecedent negligence, I

believe the Majority’s analysis falls short of a proper examination of the facts

and unnecessarily defers to Sections 442B and/or 449 of the Restatement

(Second) of Torts. The Majority summarily dismisses the trial court’s

conclusion that Fair’s conduct, as a matter of law, was a superseding cause of

the Plaintiffs’ harm by simply noting that it is not enough to establish

superseding cause by alleging that an actor engaged in criminal conduct.

While the Majority earlier acknowledges Section 442 of the Restatement

(Second)   of   Torts,   which   addresses    considerations   for   determining

superseding cause, it engages in no factual analysis to determine if the

undisputed facts establish Fair’s conduct as a superseding cause as a matter

of law. Instead, the Majority reasons only that ordinary human experience

tells us that drivers sometimes act criminally on our roads and concludes

therefore, that a jury must determine whether Fair’s criminal conduct in

speeding, inattentive driving, and (alleged) intoxication were so extraordinary

as not to be reasonably foreseeable. Like the trial court, I too would conclude,

as a matter of law, Fair’s conduct was extraordinarily negligent, thus relieving

the Additional Defendants of any antecedent negligence. In coming to the

conclusion that Fair’s conduct was a superseding cause of Plaintiffs harm, I

would emphasize that it matters not whether the Additional Defendants’

conduct was a substantial factor in bringing about the Plaintiffs’ harm, because


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a superseding cause relieves an actor from liability regardless of whether the

actor’s antecedent negligence was or was not a substantial factor in bringing

about harm. See Comment (b) to 440 (definition of superseding cause). The

antecedent negligence, if any, of the Additional Defendants is relieved here

due to the extraordinary conduct of Fair.

      I also find the Majority’s reliance upon Sections 442B and 449 of the

Restatement (Second) of Torts to be misplaced on the issue of superseding

cause. Section 442B is of limited or special application. See Comment (a) to

442B. This provision does not examine the conduct of an intervening actor

like Fair. Its focus is upon the negligent conduct of an initial actor, the

Additional Defendants here, who increase a risk of harm that is a substantial

factor in causing harm. It merely recognizes that antecedent conduct that

increases the risk of harm does not relieve an actor of liability when the

subsequent acts of a third person bring about the harm; that is, unless the

third person intentionally causes the harm and that harm is not within the

scope of the risk created by the antecedent actor’s conduct. Section 442B

however, does not address the effect of a superseding cause on antecedent

negligence. Likewise, Section 449 addresses only the negligent conduct of an

original actor.   Section 449 recognizes that if a person acts in a negligent

manner and those acts make it likely that a third person may act innocently,

negligently, intentionally, or criminally in response to that conduct, the

original actor may still be liable for the harm caused by their conduct. Like


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Section 442B, Section 449 does not address the effect of a superseding cause

on antecedent negligence that makes it likely that a third party may act as

stated.

      In summary, I do not believe it is necessary for this Court to examine

whether the conduct of the Additional Defendants was a proximate cause of

Plaintiffs’ harm, since I would conclude that Fair’s conduct was a superseding

cause of the harm.      Fair’s extraordinary conduct was not a reasonably

foreseeable or normal result of the combined actions of the Additional

Defendants. His conduct was extraordinary in the degree of its recklessness

that could not have been foreseen by Additional Defendants, thus relieving

them of liability for any antecedent negligence. I therefore would conclude

the trial court’s order granting summary judgment in favor of the Additional

Defendants was free of legal error and not an abuse of discretion. I, therefore,

respectfully dissent.




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