Subject: IN THE SUPREME COURT OF TEXAS
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Date: Sat, 24 Mar 2007 13:50:13 -0500

IN THE SUPREME COURT OF TEXAS

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No. 03-1128

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Sandy Dew, Individually and
as Representative of the Estate of Paul Dew, Deceased, and Carl Dew and Doris
Dew, Petitioners,

v.

Crown Derrick Erectors, Inc.,
Respondent

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Ninth District of
Texas

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Argued January 4,
2005

Justice Medina delivered a plurality
opinion, joined by Chief Justice
Jefferson, Justice O’Neill, and Justice Wainwright.

Justice Brister filed a concurring
opinion, joined by Justice
Willett.

Justice Johnson filed a dissenting
opinion, joined by Justice Hecht
and Justice Green.

The issue in
this wrongful death and survival action is whether the trial court erred in
refusing to submit an inferential rebuttal instruction on “new and independent
cause.” A divided court of appeals reversed and remanded for new trial,
concluding that the trial court had erred in failing to submit a new and
independent cause instruction because the evidence raised the issue. 117 S.W.3d
526, 537. We do not agree that the evidence in this case required the submission
of this additional instruction, therefore we reverse the court of appeals’
judgment and remand for that court to consider the other issues raised in the
appeal.[1]

I

Paul Dew fell
to his death through an opening in an oil derrick platform. The derrick was
under construction at the time of the accident, and the key dispute at trial
concerned who was responsible for the inadequately protected hole left in the
platform. The jury concluded that the derrick’s owner, Rowan Companies, Inc.,
its designer, Woolslayer Companies, Inc., and its erector, Crown Derrick
Erectors, Inc., were all responsible and apportioned fault among them.

The derrick
is known as the Gorilla V, a multi-tiered offshore drilling rig designed by
Woolslayer for use in the North Sea. It has working platforms set at varying
heights, including a fourble [2] platform set approximately
eighty-eight feet up the derrick. Two openings in this platform allow for
ladders that are required for such rigs. Woolslayer’s design required safety
gates to be erected around the ladder openings to prevent a person from falling
through the opening.

Rowan hired
Crown Derrick to erect the Gorilla V derrick from parts manufactured and
supplied by Woolslayer, and construction began in March 1998. While assembling
the ladders, Crown Derrick discovered that it did not have some of the necessary
parts for installing the safety gates around one of the ladder openings in the
fourble platform. Rowan’s construction manager was told about the missing parts,
and he notified Woolslayer.

By August
1998, Crown Derrick had virtually completed assembly of the derrick, but was
still missing some parts for one of the safety gates. Crown Derrick left the job
site on August 28 without having installed the safety gates around one opening
on the fourble platform and the ladder for that opening. Before leaving, Crown
Derrick placed two ropes around the otherwise unprotected and obviously
dangerous opening. The ropes were tied across the platform’s railing as a means
to block the walkway and prevent a worker from simply walking into the opening
unaware.

On September
22, 1998, Crown Derrick returned to complete its work, but a crane it needed to
install the ladder was not working. Crown Derrick also asserts that it still did
not have some parts for the safety gates and so nothing was accomplished that
day. Apparently, no one with Crown Derrick ascended to the fourble platform to
inspect the condition of the double-rope barricade it had left the month before
to secure the opening. The next day, Paul Dew, an employee of one of Rowan’s
associated companies, was working on this platform and fell through the opening
to his death.

The
double-rope barricade was not maintained while Crown Derrick was away from the
work site. At some point, an electrical junction box may have been used to cover
the opening, and still later, a single-rope was used to guard the opening. No
one actually witnessed the accident, and a dispute exists whether even the
single-rope barricade was in place on the day Mr. Dew fell.

After the
accident, Paul Dew’s wife and parents sued Rowan, Woolslayer, and Crown Derrick.
Their wrongful death and survival action was tried to a jury which found that
the negligence of all three defendants contributed to cause Mr. Dew’s death. The
jury also awarded damages, apportioning responsibility as follows:

ROWAN
COMPANIES,
INC.
47%

WOOLSLAYER
COMPANIES, INC.
30%

CROWN
DERRICK
ERECTORS
20%

PAUL
DEW
3%

TOTAL
100%

The trial
court rendered judgment on the verdict.

Only Crown
Derrick appealed, complaining among other things that the trial court had erred
in refusing to submit a jury instruction on new and independent cause. Agreeing
that this instruction was necessary and its omission harmful, the court of
appeals reversed the judgment against Crown Derrick and remanded the Dews’
claims against it for a new trial. The court concluded that an instruction was
needed because a fact question existed as to “whether any intervening act
occurred, and was an unforeseeable new and independent cause.” 117 S.W.3d at
537. One justice dissented, questioning whether there was any evidence upon
which a reasonable jury could conclude that the intervening acts were
unforeseeable, but also questioning whether any subsequent forces intervened to
alter the consequences of Crown Derrick’s original negligence. See 117
S.W.3d at 537 (Burgess, J. dissenting).

II

A new and
independent cause is one that intervenes between the original wrong and the
final injury such that the injury is attributed to the new cause rather than the
first and more remote cause. Robert R. Walker, Inc. v. Burgdorf, 244
S.W.2d 506, 509 (Tex. 1951); Phoenix Ref. Co. v. Tips, 81 S.W.2d 60, 61
(Tex. 1935). An intervening cause thus supersedes the defendant’s negligence by
destroying the causal connection between that negligence and the plaintiff’s
injury thereby relieving that defendant of liability. See generally 1 James B. Sales and J. Hadley Edgar, Texas
Torts and Remedies § 1.04[4] (2005). It is one of a number of inferential
rebuttal defenses that “operates to rebut an essential element of the
plaintiff’s case by proof of other facts.” Dillard v. Tex. Elec. Coop.,
157 S.W.3d 429, 430 (Tex. 2005); see also Comm. On Pattern Jury Charges, State Bar of
Tex., Texas Pattern Jury Charges‑‑General Negligence & Intentional Personal
Torts PJC 3.1‑3.5 (2003) (inferential rebuttal instructions). The
instruction’s purpose is “to advise the jurors, in the appropriate case, that
they do not have to place blame on a [particular defendant] to the suit” if the
true cause for the accident lies elsewhere. Dillard, 157 S.W.3d at 432
(citing Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995)). The
instruction is necessary when the evidence in the case raises a fact issue on
new and independent cause. Dallas Ry.& Terminal Co. v. Bailey, 250
S.W.2d 379, 384 (Tex. 1952); Young v. Massey, 101 S.W.2d 809, 810 (Tex.
1937).

As in the
court below, the parties here generally disagree about whether evidence supports
the submission of this inferential rebuttal instruction. Specifically, they
disagree about whether Rowan’s or someone else’s act in altering or removing the
ropes was foreseeable and an intervening act that should supersede Crown
Derrick’s own negligence.

“Generally
speaking, if the intervening force was foreseeable at the time of the
defendant’s negligence, the force is considered to be a ‘concurring cause’ of
the plaintiff’s injuries,” and “the defendant remains liable for the original
negligence.” Sales and Edgar §
1.04[4][b] at 1-55; see also J. Wigglesworth Co. v. Peeples, 985 S.W.2d
659, 665 (Tex. App.‑Fort Worth 1999, pet. denied) (“if an intervening cause was
reasonably foreseeable by the defendant in the exercise of ordinary care, it
cannot be considered a new and independent cause”). If, on the other hand, “the
intervening act is extraordinary under the circumstances, not foreseeable in the
normal course of events, or independent of or far removed from the defendant’s
conduct, it may well be a superseding act.” Derdiarian v. Felix Contracting
Corp., 414 N.E.2d 666, 670; 434 N.Y.S.2d 166, 169 (1980). What generally
distinguishes a superseding cause from one that merely concurs in the injury is
that the intervening force was not only unforeseeable, but its consequences also
unexpected:

[A]
superseding cause is one that alters the natural sequence of events and produces
results that would not otherwise have occurred. Or one that is “of such an
extraordinary nature or so attenuates defendant’s negligence from the ultimate
injury that responsibility for the injury may not be reasonably attributed to
the defendant.” An intervening force will not break a causal connection if that
force was itself probable or foreseeable by the original wrongdoer. It must be
one not brought into operation by the original wrongful act and must operate
entirely independently of such original act.

1 J.D. Lee & Barry A. Lindahl, Modern Tort
Law § 4:7 at 4-14 - 4-15 (2d ed. 2002) (footnotes and citations
omitted).

We have
relied on the Restatement in the past to aid us in determining when an
intervening force rises to the level of a new and independent or superseding
cause. See Phan Son Van v. Pena, 990 S.W.2d 751,754 (Tex. 1999);
Humble Oil & Ref. Co. v. Whitten, 427 S.W.2d 313, 315 (Tex. 1968).
The Restatement, which itemizes six factors as useful when making this
determination,[3] generally parses the core principles
already discussed — that a superseding cause ordinarily involves the
intervention of an unforeseen, independent force from a third party, causing
injury different from that which might have been expected at the time of the
original negligent act. See Restatement (Second) of Torts § 442
(a)-(d) (1965). The Restatement also lists considerations that are not relevant
to our present circumstances, such as whether the intervening act was
intentional or criminal. See id. § 442(e)-(f). But as our case law and
the Restatement make clear, the threshold, and often controlling, inquiry when
distinguishing between a concurring and a superseding cause remains “whether the
intervening cause and its probable consequences were such as could reasonably
have been anticipated by the original wrongdoer.” Bell v. Campbell, 434
S.W.2d 117, 120 (Tex. 1968).

III

The Dews
argue that, given the insubstantial nature of Crown Derrick’s rope barricade, it
was inevitable that it would be altered. They submit that Crown Derrick should
have protected the opening with a fixed, static barrier instead that could not
so easily be altered or removed. Crown Derrick’s failure to do this, the Dews
submit, was negligence that combined with others’ foreseeable negligence to
cause this accident. Thus, because the accident was a foreseeable consequence of
the creation of a dangerous hole which Crown Derrick failed adequately to
safeguard, the Dews conclude that the intervening acts cannot be considered new
and independent.[4]

Crown
Derrick, on the other hand, maintains that it was entitled to an instruction on
new and independent cause because the possibility that someone would alter or
remove its barricade was not foreseeable, and the barricade was a safety
precaution that Crown Derrick suggests was completely adequate to protect others
from the dangerous opening. Crown Derrick thus views the alteration or removal
of its rope barrier, without an adequate replacement, as an extraordinary and
unexpected occurrence, and therefore some evidence of a new and independent
cause.

Crown
Derrick’s argument, however, is premised on an erroneous assumption — that its
double rope barricade was an adequate safeguard.[5] Were this true, Crown Derrick would
not have needed an instruction on new and independent cause because it would not
have been negligent in the first place. The jury obviously did not view the
double-rope barricade as an adequate precaution against the hazard left by Crown
Derrick, probably because the ropes could so easily be altered or removed. Its
verdict indicates that Crown Derrick breached its duty of ordinary care by
leaving an open hole in the platform without adequate safeguards.

Any
intervening acts which exploited this inadequacy did not fundamentally alter the
foreseeable consequences of Crown Derrick’s original negligence. See
Tex-Jersey Oil Corp. v. Beck, 305 S.W.2d 162, 166 (Tex. 1957) (bolt of
lightning that ignited vapors defendant negligently permitted to escape from
tank not new and independent cause). As one authority has observed:

Obviously
the defendant cannot be relieved from liability by the fact that the risk, or a
substantial and important part of the risk, to which the defendant has subjected
the plaintiff has indeed come to pass. Foreseeable intervening forces are within
the scope of the original risk, and hence of the defendant’s negligence. The
courts are quite generally agreed that intervening causes which fall fairly in
this category will not supersede the defendant’s responsibility.

Keeton et Al., Prosser and Keeton on the Law
of Torts, § 44, at 303 (5th ed. 1984). Where the intervening act’s risk
is the very same risk that renders the original actor negligent, the intervening
act cannot serve as a superseding cause. See Tex-Jersey Oil Corp., 305
S.W.2d at 166; Derdiarian, 414 N.E.2d at 671; Restatement (Second) of Torts § 442 B
(Intervening Force Causing Same Harm as That Risked by Actor’s Conduct).[6] Because these are our present
circumstances, Crown Derrick was not entitled to an instruction on new and
independent cause.

The court of
appeals’ judgment is reversed and the cause is remanded for consideration of
other issues raised, but not considered, in that court.

____________________________________

David M.
Medina

Justice

Opinion
delivered:         June 30, 2006

[1] Having found error in the court’s charge, the court of
appeals did not consider Crown Derrick’s other issues concerning the sufficiency
of the evidence and the computation of the judgment under Chapter 33 of the
Civil Practices and Remedies Code.

[2] “A stand of drill pipe consisting of four lengths.”
Webster’s New International Dictionary
997 (2d ed. unabridged 1954).

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

(a) the fact that [the intervening force] brings about
harm different in kind from that which would otherwise have resulted from the
actor’s negligence;

(b) the fact that [the intervening force’s] 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 [the force’s]
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.

Restatement (Second) of
Torts § 442 (1965).

[4] The Dews further argue that, even though they should
prevail under a traditional proximate cause analysis, Texas jurisprudence would
be better served by replacing that analysis with the “scope-of-liability”
principles espoused by the American Law Institute in the tentative draft of the
Third Restatement of Torts. See Restatement (Third) of Torts: Liability for
Physical Harm (Basic Principles) § 29 (Tentative Draft No. 3, 2003) (“An
actor is not liable for harm different from the harms whose risks made the
actor’s conduct tortious.”). This tentative draft suggests that the term
“proximate cause” has proven a poor choice for describing the limits of
liability because it “implies that there is but one cause — the cause nearest in
time or geography to the plaintiff’s harm — and that factual causation bears on
the issue of scope of liability.” Restatement (Third) of Torts: Liability for
Physical Harm (Basic Principles) § 29, cmt. b (Tentative Draft No. 3,
2003). Because neither implication is correct, the draft suggests that the term
“proximate cause” and the accompanying instructions typically used to define the
term be abandoned; that its component elements of cause in fact and
foreseeability be considered separately; and that legal cause hereafter be
defined in terms of the “scope of liability” which is meant to convey “the idea
that an actor should be held liable only for harm that was among the potential
harms — the risks — that made the actor’s conduct tortious.” Id. cmt. b
& d. While we applaud any effort to bring greater clarity to this difficult
area of the law, we must decline the invitation to abandon decades of case law,
not to mention the Restatement (Second) of Torts, before even the American Law
Institute has done so.

[5] Crown Derrick argues that it was entitled to an
instruction on new and independent cause because “the evidence raises the
question of whether Paul Dew’s accident was caused by the properly barricaded
ladder opening left by Crown Derrick, or by the improperly barricaded
ladder opening that came into being as the result of intentional actions by
other parties after Crown Derrick left the worksite.” (emphasis
added).

[6] “Where the negligent conduct of the actor creates or
increases the risk of a particular harm and is a substantial factor in causing
that harm, the fact that the harm is brought about through the intervention of
another force does not relieve the actor of liability, except where the harm is
intentionally caused by a third person and is not within the scope of the risk
created by the actor’s conduct.”