Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.
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The Superseding Cause Defense In New York Personal Injury Cases

In personal injury cases in New York the defense of an intervening act as a superseding cause of plaintiff’s injury will often be raised to absolve defendant’s negligence as a proximate cause of plaintiff’s injury. From the plaintiff’s perspective it should be argued that questions of causation are in most cases for a jury to decide. Further such acts must be argued to be not of such an extraordinary nature as to break the causal connection between defendant’s negligence and plaintiff’s injury.

The Court of Appeals in Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831 (1983) clearly set forth the circumstances under which a defendant will be relieved of liability by an intervening act;

“An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendants negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant (see, e.g., Martinez v. Lazaroff, 48 N.Y.2d 819, 424 N.Y.S.2d 126, 399 N.E.2d 1148; Kingsland v. Erie County Agric. Soc., 298 N.Y.409, 84 N.E.2d 38, supra; Perry v. Rochester Lime Co., 219 N.Y. 60, 113 N.E. 529;Hallenbeck v. Lone Tar Cement Corp., 273 App. Div. 327, 77 N.Y.S.2d 807, affd. No opn. 299 N.Y. 777, 87 N.E.2d 679). When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist (see Derdiarian v. Felix Contr. Co., supra; Paravi v. City of Kingston, 41 N.Y.2d 553, 394N.Y.X. 2d 161, 362 N.E.2d 960; Prosser, Torts [4th ed.], Section 44, pp. 272-280).”

In Kush, students had stolen chemicals from a school and thrown them out a window where an eight year old child found them and began playing with them and with matches he had earlier found causing an explosion and injuring him. In rejecting defendant’s argument that the student’s stealing of the chemicals was an intentional act and a superseding cause of plaintiff’s injury relieving it of liability, the Court stated:

“That doctrine has no application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable ….when the intervening, intentional act of another is itself the harm that shapes the duty imposed, the defendant who fails to guard against such conduct will not be relieved of liability when that act occurs.”

See also: Clinton v. City of New York, et. al., 140 A.D.2d 404, 528 N.Y.S.2d 108 (2nd Dept. 1988) (Hospital that negligently allowed patient to retain suture scissors liable for injuries sustained when patient used scissors to stab another patient).

In Rotz v. City of New York, et. al., 143 A.D.2d 301, 532 N.Y.S.2d 245 (1st Dept. 1988) the plaintiff was part of a crowd at a Diana Ross concert in Central Park and was injured in the course of a stampede. While the Court held that to the extent that the plaintiff’s claim was predicated upon a failure to provide police protection, it must fail, if found that the plaintiff set forth a legally cognizable claim based upon the negligence of the City.

“Issues of negligence, foreseeability and proximate cause involve the kinds of judgmental variables which have traditionally, and soundly, been left to the finders of fact to resolve even where the facts are essentially undisputed. (See, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308; Nallan v. Helmsley-Spear, Inc., 50 NY2d 507, 520 n 8; Havas v. Victory Paper Stock Co., 49 NY2d 381; Luce v. Hartman, NY2d 786; Caldwell v. Village of Is. Park, supra, at 274; Sadowski v. Long Is. R.R. Co., 292 NY 448).)

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“The fact that the acts of a third person or persons intervened between defendant’s conduct and the plaintiff’s injury does not automatically sever the causal connection necessary to establish liability if that intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence – in this case, the alleged failure to properly supervise the crowd by adequate crowd-control measures. (Derdiarian v. Felix Contr. Corp., supra; Carolck v. Westchester Light. Co., 268 NY 345; Kingsland v. Erie County Agric. Socy., 298 NY 409.) The intervening act of a third party which is a normal consequence of a situation created by the actor’s negligent conduct is not a superseding cause of harm to another which the actor’s conduct is a substantial factor in bringing about. (Restatement [Second] of Torts §443.)”

(See also: Vaswani v. Martin, et. al., 278 A.D.2d, 96, 717 N.Y.S.2d 533 [1st Dept. 2000] [issues of negligence, foreseeability and proximate cause involve the kind of judgmental variables which have been left to the finders of fact to resolve; citing Rotz, supra]; McKinnon v. Bell Security, 286 A.D.2d 220; 700 N.Y.S.2d 469 (1st Dept. 2000) [the intervening act of a party other than defendant will not break the causal chain where the intervening act was a natural and foreseeable consequence of defendant’s negligence. Only an extraordinary and unanticipated act may serve as a basis for a ruling as a matter of law that the chain has been broken.]

In cases where it is anticipated the defense will be raised it must be dealt with from the inception of the case and be a focus of depositions in order to defeat a motion for summary judgment predicated on the defense.

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