Intervening Force=Superseding Cause?

The following question was asked by a reader of the blog:

I've read conflicting information on if a later criminal act will cut off the liability of someone who is negligent so that the negligent person will not be liable for any harm caused by the criminal. Can you expand on this on your blog?

Response:

This is certainly a difficult issue, and my advice would be to not assume that any particular intervening force is a superseding cause. Instead, be sure to know the rule in determining whether an intervening force is a superseding cause, and then analyze the facts by applying the rule.

An intervening force is one which produces harm to another after one has already committed a negligent act. The negligent actor will not always be responsible for the harm caused by the intervening force. Liability will be cut off if the intervening force is unforseeable so that it breaks the chain of causation between the initial negligent act and the ultimate injury. In such an instance the intervening force is deemed to be a superseding cause.

That said, to determine whether a later criminal act by Y will cut off the liability of X, who was earlier negligent, it must first be determined whether Y's criminal act was forseeable to X at the time that X engaged in the negligent act. If the criminal act was forseeable, then X can be liable for any harm caused by Y's criminal act.

I think it's not unreasonable to assume that criminal acts by third parties are usually unforseeable, but the rule is not absolute. As an example, assume a situation in which the likelihood that a third person might commit a criminal act is the exact hazard which makes the actor negligent (for example if someone negligently places a child in the care of a third party who is known to have abused children, and the third party then abuses the child).

The best approach is to note the following rule, and then apply it accordingly.

An intervening force will generally not be considered a superseding cause if:

(1): The intervening force brings about harm different in kind from that which would otherwise have resulted from the defendant's act.

(2): The intervening force, or the consequences thereof, appear after the event to be extraordinary and unforseeable.

(3): The intervening force operates independently of any situation created by the defendant's negligence.