IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 03-1128

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Sandy Dew, = Individually and=20 as Representative of the Estate of Paul Dew, Deceased, and Carl Dew and = Doris=20 Dew, Petitioners,

Crown Derrick = Erectors, Inc.,=20 Respondent

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On Petition for Review from = the

Court of Appeals for the Ninth = District of=20 Texas

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Argued January 4,=20 2005

Justice Medina delivered a = plurality=20 opinion, joined by Chief = Justice=20 Jefferson, Justice O=92Neill, and Justice Wainwright.

Justice Brister filed a = concurring=20 opinion, joined by Justice=20 Willett.

Justice Johnson filed a = dissenting=20 opinion, joined by Justice = Hecht=20 and Justice = Green.

The = issue in=20 this wrongful death and survival action is whether the trial court erred = in=20 refusing to submit an inferential rebuttal instruction on =93new and = independent=20 cause.=94 A divided court of appeals reversed and remanded for new = trial,=20 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=20 526, 537. We do not agree that the evidence in this case required the = submission=20 of this additional instruction, therefore we reverse the court of = appeals=92=20 judgment and remand for that court to consider the other issues raised = in the=20 appeal.[1]

I=20

Paul Dew fell=20 to his death through an opening in an oil derrick platform. The derrick = was=20 under construction at the time of the accident, and the key dispute at = trial=20 concerned who was responsible for the inadequately protected hole left = in the=20 platform. The jury concluded that the derrick=92s owner, Rowan = Companies, Inc.,=20 its designer, Woolslayer Companies, Inc., and its erector, Crown Derrick = Erectors, Inc., were all responsible and apportioned fault among them. =

The = derrick=20 is known as the Gorilla V, a multi-tiered offshore drilling rig designed = by=20 Woolslayer for use in the North Sea. It has working platforms set at = varying=20 heights, including a fourble [2] platform set approximately=20 eighty-eight feet up the derrick. Two openings in this platform allow = for=20 ladders that are required for such rigs. Woolslayer=92s design required = safety=20 gates to be erected around the ladder openings to prevent a person from = falling=20 through the opening.

Rowan hired=20 Crown Derrick to erect the Gorilla V derrick from parts manufactured and = supplied by Woolslayer, and construction began in March 1998. While = assembling=20 the ladders, Crown Derrick discovered that it did not have some of the = necessary=20 parts for installing the safety gates around one of the ladder openings = in the=20 fourble platform. Rowan=92s construction manager was told about the = missing parts,=20 and he notified Woolslayer.

By = August=20 1998, Crown Derrick had virtually completed assembly of the derrick, but = was=20 still missing some parts for one of the safety gates. Crown Derrick left = the job=20 site on August 28 without having installed the safety gates around one = opening=20 on the fourble platform and the ladder for that opening. Before leaving, = Crown=20 Derrick placed two ropes around the otherwise unprotected and obviously=20 dangerous opening. The ropes were tied across the platform=92s railing = as a means=20 to block the walkway and prevent a worker from simply walking into the = opening=20 unaware.

On = September=20 22, 1998, Crown Derrick returned to complete its work, but a crane it = needed to=20 install the ladder was not working. Crown Derrick also asserts that it = still did=20 not have some parts for the safety gates and so nothing was accomplished = that=20 day. Apparently, no one with Crown Derrick ascended to the fourble = platform to=20 inspect the condition of the double-rope barricade it had left the month = before=20 to secure the opening. The next day, Paul Dew, an employee of one of = Rowan=92s=20 associated companies, was working on this platform and fell through the = opening=20 to his death.

The = double-rope barricade was not maintained while Crown Derrick was away = from the=20 work site. At some point, an electrical junction box may have been used = to cover=20 the opening, and still later, a single-rope was used to guard the = opening. No=20 one actually witnessed the accident, and a dispute exists whether even = the=20 single-rope barricade was in place on the day Mr. Dew fell.

After the=20 accident, Paul Dew=92s wife and parents sued Rowan, Woolslayer, and = Crown Derrick.=20 Their wrongful death and survival action was tried to a jury which found = that=20 the negligence of all three defendants contributed to cause Mr. Dew=92s = death. The=20 jury also awarded damages, apportioning responsibility as follows:

ROWAN=20 COMPANIES,=20 INC. &nb= sp; =20 47%

WOOLSLAYER=20 COMPANIES, = INC. =20 30%

CROWN=20 DERRICK=20 ERECTORS = ; =20 20%

PAUL=20 DEW &nbs= p; = ; = &= nbsp; =20 3%

TOTAL = ; = &= nbsp; &n= bsp; &nb= sp;=20 100%

The trial=20 court rendered judgment on the verdict.

Only Crown=20 Derrick appealed, complaining among other things that the trial court = had erred=20 in refusing to submit a jury instruction on new and independent cause. = Agreeing=20 that this instruction was necessary and its omission harmful, the court = of=20 appeals reversed the judgment against Crown Derrick and remanded the = Dews=92=20 claims against it for a new trial. The court concluded that an = instruction was=20 needed because a fact question existed as to =93whether any intervening = act=20 occurred, and was an unforeseeable new and independent cause.=94 117 = S.W.3d at=20 537. One justice dissented, questioning whether there was any evidence = upon=20 which a reasonable jury could conclude that the intervening acts were=20 unforeseeable, but also questioning whether any subsequent forces = intervened to=20 alter the consequences of Crown Derrick=92s original negligence. = See 117=20 S.W.3d at 537 (Burgess, J. dissenting).

A = new and=20 independent cause is one that intervenes between the original wrong and = the=20 final injury such that the injury is attributed to the new cause rather = than the=20 first and more remote cause. Robert R. Walker, Inc. v. Burgdorf, = 244=20 S.W.2d 506, 509 (Tex. 1951); Phoenix Ref. Co. v. Tips, 81 S.W.2d = 60, 61=20 (Tex. 1935). An intervening cause thus supersedes the defendant=92s = negligence by=20 destroying the causal connection between that negligence and the = plaintiff=92s=20 injury thereby relieving that defendant of liability. See = generally 1 James B. Sales and J. Hadley = Edgar, Texas=20 Torts and Remedies =A7 1.04[4] (2005). It is one of a number of = inferential=20 rebuttal defenses that =93operates to rebut an essential element of the=20 plaintiff=92s case by proof of other facts.=94 Dillard v. Tex. Elec. = Coop.,=20 157 S.W.3d 429, 430 (Tex. 2005); see also Comm. On Pattern Jury Charges, State = Bar of=20 Tex., Texas Pattern Jury Charges‑‑General Negligence & = Intentional Personal=20 Torts PJC 3.1‑3.5 (2003) (inferential rebuttal = instructions). The=20 instruction=92s purpose is =93to advise the jurors, in the appropriate = case, that=20 they do not have to place blame on a [particular defendant] to the = suit=94 if the=20 true cause for the accident lies elsewhere. Dillard, 157 S.W.3d = at 432=20 (citing Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995)). The=20 instruction is necessary when the evidence in the case raises a fact = issue on=20 new and independent cause. Dallas Ry.& Terminal Co. v. = Bailey, 250=20 S.W.2d 379, 384 (Tex. 1952); Young v. Massey, 101 S.W.2d 809, 810 = (Tex.=20 1937).

As = in the=20 court below, the parties here generally disagree about whether evidence = supports=20 the submission of this inferential rebuttal instruction. Specifically, = they=20 disagree about whether Rowan=92s or someone else=92s act in altering or = removing the=20 ropes was foreseeable and an intervening act that should supersede Crown = Derrick=92s own negligence.

=93Generally=20 speaking, if the intervening force was foreseeable at the time of the=20 defendant=92s negligence, the force is considered to be a =91concurring = cause=92 of=20 the plaintiff=92s injuries,=94 and =93the defendant remains liable for = the original=20 negligence.=94 Sales and Edgar = =A7=20 1.04[4][b] at 1-55; see also J. Wigglesworth Co. v. Peeples, 985 = S.W.2d=20 659, 665 (Tex. App.‑Fort Worth 1999, pet. denied) (=93if an = intervening cause was=20 reasonably foreseeable by the defendant in the exercise of ordinary = care, it=20 cannot be considered a new and independent cause=94). If, on the other = hand, =93the=20 intervening act is extraordinary under the circumstances, not = foreseeable in the=20 normal course of events, or independent of or far removed from the = defendant=92s=20 conduct, it may well be a superseding act.=94 Derdiarian v. Felix = Contracting=20 Corp., 414 N.E.2d 666, 670; 434 N.Y.S.2d 166, 169 (1980). What = generally=20 distinguishes a superseding cause from one that merely concurs in the = injury is=20 that the intervening force was not only unforeseeable, but its = consequences also=20 unexpected:

[A]=20 superseding cause is one that alters the natural sequence of events and = produces=20 results that would not otherwise have occurred. Or one that is =93of = such an=20 extraordinary nature or so attenuates defendant=92s negligence from the = ultimate=20 injury that responsibility for the injury may not be reasonably = attributed to=20 the defendant.=94 An intervening force will not break a causal = connection if that=20 force was itself probable or foreseeable by the original wrongdoer. It = must be=20 one not brought into operation by the original wrongful act and must = operate=20 entirely independently of such original act.

1 = J.D. Lee & Barry A. Lindahl, = Modern Tort=20 Law =A7 4:7 at 4-14 - 4-15 (2d ed. 2002) (footnotes and citations = omitted).

We = have=20 relied on the Restatement in the past to aid us in determining when an=20 intervening force rises to the level of a new and independent or = superseding=20 cause. See Phan Son Van v. Pena, 990 S.W.2d 751,754 (Tex. 1999);=20 Humble Oil & Ref. Co. v. Whitten, 427 S.W.2d 313, 315 (Tex. = 1968).=20 The Restatement, which itemizes six factors as useful when making this=20 determination,[3] generally parses the core = principles=20 already discussed =97 that a superseding cause ordinarily involves the=20 intervention of an unforeseen, independent force from a third party, = causing=20 injury different from that which might have been expected at the time of = the=20 original negligent act. See Restatement (Second) of Torts = =A7 442=20 (a)-(d) (1965). The Restatement also lists considerations that are not = relevant=20 to our present circumstances, such as whether the intervening act was=20 intentional or criminal. See id. =A7 442(e)-(f). But as our case = law and=20 the Restatement make clear, the threshold, and often controlling, = inquiry when=20 distinguishing between a concurring and a superseding cause remains = =93whether the=20 intervening cause and its probable consequences were such as could = reasonably=20 have been anticipated by the original wrongdoer.=94 Bell v. = Campbell, 434=20 S.W.2d 117, 120 (Tex. 1968).

III

The = Dews=20 argue that, given the insubstantial nature of Crown Derrick=92s rope = barricade, it=20 was inevitable that it would be altered. They submit that Crown Derrick = should=20 have protected the opening with a fixed, static barrier instead that = could not=20 so easily be altered or removed. Crown Derrick=92s failure to do this, = the Dews=20 submit, was negligence that combined with others=92 foreseeable = negligence to=20 cause this accident. Thus, because the accident was a foreseeable = consequence of=20 the creation of a dangerous hole which Crown Derrick failed adequately = to=20 safeguard, the Dews conclude that the intervening acts cannot be = considered new=20 and independent.[4]

Crown=20 Derrick, on the other hand, maintains that it was entitled to an = instruction on=20 new and independent cause because the possibility that someone would = alter or=20 remove its barricade was not foreseeable, and the barricade was a safety = precaution that Crown Derrick suggests was completely adequate to = protect others=20 from the dangerous opening. Crown Derrick thus views the alteration or = removal=20 of its rope barrier, without an adequate replacement, as an = extraordinary and=20 unexpected occurrence, and therefore some evidence of a new and = independent=20 cause.

Crown=20 Derrick=92s argument, however, is premised on an erroneous assumption = =97 that its=20 double rope barricade was an adequate safeguard.[5] Were this true, Crown = Derrick would=20 not have needed an instruction on new and independent cause because it = would not=20 have been negligent in the first place. The jury obviously did not view = the=20 double-rope barricade as an adequate precaution against the hazard left = by Crown=20 Derrick, probably because the ropes could so easily be altered or = removed. Its=20 verdict indicates that Crown Derrick breached its duty of ordinary care = by=20 leaving an open hole in the platform without adequate safeguards.

Any=20 intervening acts which exploited this inadequacy did not fundamentally = alter the=20 foreseeable consequences of Crown Derrick=92s original negligence. = See=20 Tex-Jersey Oil Corp. v. Beck, 305 S.W.2d 162, 166 (Tex. 1957) (bolt = of=20 lightning that ignited vapors defendant negligently permitted to escape = from=20 tank not new and independent cause). As one authority has observed:

Obviously=20 the defendant cannot be relieved from liability by the fact that the = risk, or a=20 substantial and important part of the risk, to which the defendant has = subjected=20 the plaintiff has indeed come to pass. Foreseeable intervening forces = are within=20 the scope of the original risk, and hence of the defendant=92s = negligence. The=20 courts are quite generally agreed that intervening causes which fall = fairly in=20 this category will not supersede the defendant=92s responsibility.

Keeton et Al., Prosser and Keeton on = the Law=20 of Torts, =A7 44, at 303 (5th ed. 1984). Where the intervening = act=92s risk=20 is the very same risk that renders the original actor negligent, the = intervening=20 act cannot serve as a superseding cause. See Tex-Jersey Oil Corp., = 305=20 S.W.2d at 166; Derdiarian, 414 N.E.2d at 671; Restatement (Second) of Torts = =A7 442 B=20 (Intervening Force Causing Same Harm as That Risked by Actor=92s = Conduct).[6] Because these are our = present=20 circumstances, Crown Derrick was not entitled to an instruction on new = and=20 independent cause.

The = court of=20 appeals=92 judgment is reversed and the cause is remanded for = consideration of=20 other issues raised, but not considered, in that court.

____________________________________

David M.=20 Medina

Justice

Opinion=20 delivered: June 30, = 2006

^[1] Having found error in the court=92s charge, = the court of=20 appeals did not consider Crown Derrick=92s other issues concerning the = sufficiency=20 of the evidence and the computation of the judgment under Chapter 33 of = the=20 Civil Practices and Remedies Code.

^[2] =93A stand of drill pipe consisting of four = lengths.=94=20 Webster=92s New International = Dictionary=20 997 (2d ed. unabridged 1954).

^[3] The following considerations are of = importance in=20 determining whether an intervening force is a superseding cause of harm = to=20 another:

(a) the fact that [the intervening force] = brings about=20 harm different in kind from that which would otherwise have resulted = from the=20 actor=92s negligence;

(b) the fact that [the intervening force=92s] = operation or=20 the consequences thereof appear after the event to be extraordinary = rather than=20 normal in view of the circumstances existing at the time of [the = force=92s]=20 operation;

(c) the fact that the intervening force is = operating=20 independently of any situation created by the actor=92s negligence, or, = on the=20 other hand, is or is not a normal result of such a situation;

(d) the fact that the operation of the = intervening force=20 is due to a third person=92s act or to his failure to act;

(e) the fact that the intervening force is due = to an act=20 of a third person which is wrongful toward the other and as such = subjects the=20 third person to liability to him;

(f) the degree of culpability of a wrongful = act of a=20 third person which sets the intervening force in motion.

Restatement = (Second) of=20 Torts =A7 442 (1965).

^[4] The Dews further argue that, even though they = should=20 prevail under a traditional proximate cause analysis, Texas = jurisprudence would=20 be better served by replacing that analysis with the = =93scope-of-liability=94=20 principles espoused by the American Law Institute in the tentative draft = of the=20 Third Restatement of Torts. See Restatement (Third) of Torts: = Liability for=20 Physical Harm (Basic Principles) =A7 29 (Tentative Draft No. 3, = 2003) (=93An=20 actor is not liable for harm different from the harms whose risks made = the=20 actor=92s conduct tortious.=94). This tentative draft suggests that the = term=20 =93proximate cause=94 has proven a poor choice for describing the limits = of=20 liability because it =93implies that there is but one cause =97 the = cause nearest in=20 time or geography to the plaintiff=92s harm =97 and that factual = causation bears on=20 the issue of scope of liability.=94 Restatement (Third) of Torts: = Liability for=20 Physical Harm (Basic Principles) =A7 29, cmt. b (Tentative Draft = No. 3,=20 2003). Because neither implication is correct, the draft suggests that = the term=20 =93proximate cause=94 and the accompanying instructions typically used = to define the=20 term be abandoned; that its component elements of cause in fact and=20 foreseeability be considered separately; and that legal cause hereafter = be=20 defined in terms of the =93scope of liability=94 which is meant to = convey =93the idea=20 that an actor should be held liable only for harm that was among the = potential=20 harms =97 the risks =97 that made the actor=92s conduct tortious.=94 = Id. cmt. b=20 & d. While we applaud any effort to bring greater clarity to this = difficult=20 area of the law, we must decline the invitation to abandon decades of = case law,=20 not to mention the Restatement (Second) of Torts, before even the = American Law=20 Institute has done so.

^[5] Crown Derrick argues that it was entitled to = an=20 instruction on new and independent cause because =93the evidence raises = the=20 question of whether Paul Dew=92s accident was caused by the properly = barricaded=20 ladder opening left by Crown Derrick, or by the improperly = barricaded=20 ladder opening that came into being as the result of intentional actions = by=20 other parties after Crown Derrick left the worksite.=94 (emphasis=20 added).

^[6] =93Where the negligent conduct of the actor = creates or=20 increases the risk of a particular harm and is a substantial factor in = causing=20 that harm, the fact that the harm is brought about through the = intervention of=20 another force does not relieve the actor of liability, except where the = harm is=20 intentionally caused by a third person and is not within the scope of = the risk=20 created by the actor=92s = conduct.=94