Superseding Intervening Cause: A New Look at an Old Doctrine

WDC Journal Edition: Summer/Fall 2007
By: Grace Kulkoski

Superseding intervening cause cases are rare, and when they do come up they can be an uphill battle for defense counsel. Though this doctrine may not come up often, it is still around to argue and even sometimes win. It has also recently come about that in certain cases, the defendant may be relieved of liability on summary judgment without ever having to go through a jury trial.

Consider the following example. Stephen Allen did not properly secure a dog house to the bed of his pickup truck, causing it to fall off on the highway. Another driver hit the doghouse, resulting in debris being left on the highway. A deputy came to clean up the debris. While the deputy was cleaning the debris, he was hit by a car. A patrol sergeant came to the deputy’s aid, but in an effort to reach him, she jumped over a concrete barrier and fell 40 feet onto railroad tracks below and was injured. Should there be recovery for the patrol sergeant? Which party should pay? This case was decided by the Court of Appeals just last year, and Allen, the doghouse owner, and the driver who hit the deputy were both relieved of liability on summary judgment for the patrol sergeant’s injuries thanks to a solid application of the superseding intervening cause doctrine.[1]

The following paragraphs will help clarify the current status of superseding intervening cause law from both a substantive and procedural perspective, in light of some of the changes this doctrine has seen in recent years.

A Brief Refresher

Given that some may not have closely studied superseding intervening cause since law school torts class, a brief refresher of this doctrine may be helpful. Superseding intervening cause is a principle of law used to relieve a negligent tortfeasor of liability in very specific circumstances. To best understand this body of law, it is helpful to start with the definitions. Black’s Law Dictionary defines intervening cause as:

“An event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury. If the intervening cause is strong enough to relieve the wrongdoer of any liability, it becomes a superseding cause.

Black’s further defines superseding cause as:

“An intervening act that the law considers sufficient to override the cause for which the original tortfeasor was responsible, thereby exonerating that tortfeasor from liability.”

The question then becomes, what kind of intervening cause is strong enough to supersede a tortfeasor’s liability? The best way to illustrate how the definitions are applied in practice is through examples. In the Kitter case, which involved a multiple car accident, the court found there was a superseding intervening cause sufficient to relieve the tortfeasor of liability.[2] In that case, the defendant (a lumber company) and another vehicle collided. The defendant did not move its truck off the road. Ten minutes after the collision, a third driver came upon the scene “at an excessive rate of speed,” went into a skid, rolled over and killed a pedestrian. Although the defendant was negligent for not removing the truck from the road, which was a cause of the second accident, the court held that the negligence of the third driver was sufficiently “highly extraordinary” to relieve the defendant of any negligence for leaving the truck in the road.

However, results of this sort are rare, and more commonly, the intervening cause will not be enough to supersede the original tortfeasor’s liability. In the McFee[3] case, the defendant Harker had caused a head-on collision. A truck driver pulled off the road as a result, leaving about 5.5’ of the truck still on the roadway. Because the truck was partially still on the road, another driver rear-ended the truck in the fog. The jury found all three drivers causally negligent for the rear-end collision, with Harker 75% at fault. The court found that the truck driver’s negligence in leaving the truck partially on the road did not supersede Harker’s negligence in causing the first collision, which was a substantial factor in causing the second collision. These examples merely provide a reminder of how this doctrine is applied. More detailed attention is given to this body of law below.

Substantive Law

In a superseding intervening cause action, just as in a regular negligence action, there are two parts to determining legal cause.[4] The first part of the analysis is the cause-in-fact analysis, which is a determination of whether the defendant’s actions were a “cause-in-fact” of the injuries.[5] This will be a question for the jury. If the jury does find cause-in-fact, the court will then determine the proximate cause question. After cause-in-fact is determined, a court may still deny recovery after addressing public policy considerations or legal cause.[6] (The jury may not always answer the cause-in-fact question before the court answers the proximate cause question. This will be discussed in the next section.)

In its proximate cause analysis, a court will consider several factors. There are three factors, laid out in the 2nd Restatement of Torts §447, which have been adopted by the Wisconsin courts. The Restatement explains when an intervening act of a third person will not be a superseding cause.[7] That is, when the defendant will remain liable for his or her negligence. These factors are: (a) the original actor at the time of his negligent conduct should have realized that a third person might so act, or (b) a reasonable person knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal consequence of a situation created by the original actor’s conduct and the manner in which it is done is not extraordinarily negligent.

There are two ways that a court may find a superseding intervening cause. First, a consideration of the three factors listed above may lead to the conclusion that the tortfeasor should be relieved of liability. Second, even if the act would not be a superseding intervening cause under the restatement, courts may still relieve the first negligent actor of liability for public policy reasons. These reasons are:

(1) The injury is too remote from the first tortfeasor’s negligence, or

(2) The injury is too wholly out of proportion to the culpability of the first negligent tortfeasor, or

(3) In retrospect, it appears too highly extraordinary that the first actor’s negligence should have brought about the harm, or

(4) Allowance of recovery would place too unreasonable of a burden on the first negligent tortfeasor, or

(5) Allowing recovery would be too likely to open the way for fraudulent claims, or

(6) Allowing recovery would enter a field that has no sensible or just stopping point.[8]

When a court precludes liability based on public policy factors, it is essentially concluding that despite the existence of cause-in-fact, the cause of the plaintiff’s injuries is not legally sufficient to allow recovery.[9] However, it is important to note that the cases in which a casually negligent tortfeasor has been relieved of liability are infrequent and present unusual and extreme considerations.[10]

In recent years, the superseding intervening cause doctrine has undergone some cosmetic changes. The doctrine was said to have passed away with the adoption of the substantial factor test of cause-in-fact.[11]However, in Fandrey and Cefalu the court notes that the first public policy factor (“whether the injury is too remote from the negligence”) is a restatement of the old chain of causation test, and “revives” the superseding intervening cause doctrine.[12] While the doctrine itself may have resurfaced in the public policy realm, the substantive law in this area has not substantially changed. The court has consistently used the two-part causation analysis to determine liability. It has remained a consideration of whether the original tortfeasor’s negligence caused the injury and whether that tortfeasor should be held liable for the injury.

Procedural Law

The procedural law in this area has changed as well in recent years. Previously, the courts determined that the question of superseding cause “is a question of law for the trial court to decide after the verdict has determined that the first actor’s negligence was a substantial factor in causing harm.”[13] This meant that the jury would first determine the apportionment of negligence among the various parties, and the court would then decide if the subsequent negligence was such that the original tortfeasor should be absolved of any or all negligence.

In recent years, the courts have changed when the superseding intervening cause consideration is made. It is no longer strictly a finding made after a negligence verdict is determined. Rather, courts have been making the superseding intervening cause determination early on in the proceedings through dispositive motions, and before a jury hears the case.

Fandrey addressed the shift in procedural process.[14] In this case, the court ruled on summary judgment that liability was precluded by public policy factors without letting the jury decide the cause-in-fact question. The court stated that “a full trial is not always necessary, as ‘[t]his court can, and has, decided such public policy questions [before a trial].’ When the policy questions are fully presented to us and the facts are easily ascertainable, this court can utilize public policy to preclude liability before a trial.”[15]This change presents opportunities for the defense counsel to shield the defendant from liability at the summary judgment stage.

Case Law

The court’s decision to relieve a negligent tortfeasor of liability is highly fact-intensive and varies from case to case. However, it may be helpful to list several of the most common cases on either side of this doctrine, in order to gauge how a court might interpret a certain set of facts.

In addition to Kitter, which was used as an example above, another example of superseding intervening cause is Schultz v. Brogen.[16] In that case, one defendant had gone into a ditch, and another defendant pulled the car out, resulting in both vehicles facing east on the south side of the highway. Several people were injured when the defendant Brogen came upon the scene and rear-ended one of the cars on the side of the road. The court found that the accident would have happened anyway and relieved both initial defendants of liability for their negligence in parking on the highway without leaving a clear and unobstructed width.[17]

In extreme circumstances, courts have relieved a negligent tortfeasor of liability for public policy reasons. One such case is Hass v. Chicago, where the court cited public policy reasons in holding that an injured fire fighter could not recover from the railroad which negligently allowed its engine to cause a fire.[18]

Fandrey, mentioned earlier, does not contain the same typical superseding intervening cause facts.[19]However, the court considered the same negligence and policy factors, as well as current superseding intervening cause law in its decision. The court ruled that public policy precluded liability where the plaintiff had entered the defendant’s home without permission and was bitten by their dog inside the home. The court held that imposing liability on the defendant would result in liability entering a field that has no sensible or just stopping point.

In Cefalu, also mentioned earlier, the court held that the defendant was not liable for a subsequent accident.[20] A truck driver was involved in an accident, and emergency vehicles secured the scene. The plaintiff came upon the scene and hit another vehicle when both vehicles entered the intersection at the accident scene, which was being controlled by a police officer. The court held that the truck driver’s negligence in causing the original accident did not extend to liability to the plaintiff, because there was not an unbroken series of events connecting the two accidents, and public policy precluded liability regardless.

There is also case law rejecting the superseding intervening cause defense and holding that a defendant is liable for subsequent accidents caused as a result of the original negligence. The McFee case, which was used at the beginning of the article, is one example. Another is Wenzel v. Werch, where the defendant, Werch, crossed the centerline striking Wenzel’s car, causing the trailing driver to broadside Wenzel’s car.[21] The jury found no negligence on the trailing driver.[22]

Another example mentioned above is Stewart v. Wulf, where Stewart’s negligent handling of a gun, left in the bedroom by Wulf was not superseding because Wulf should have foreseen the probability of injury occurring, and public policy considerations were inapplicable.[23]

The Johnson case, which rejected a superseding intervening cause claim, is one of the more well-known and influential cases in this area of law.[24] In that case, Heinz had rear-ended a car in a blizzard and left the car on the side of the road to go get help. Johnson was a passenger in the car and was injured. Another car came upon the scene and rear-ended the Heinz car, again injuring Johnson, who was still in the car. The court held that Heinz was solely responsible for the injuries sustained in the first accident, and jointly responsible for the injuries sustained in the subsequent accident. This case provides a clear example of a court refusing to accept the superseding intervening cause defense, and holding a defendant liable for subsequent injury caused by his or her original negligence.


Despite having undergone some changes in the past few years, superseding intervening cause is still primarily dependant on the same reasoning it has always been. Once causal negligence is determined, the court will consider the factors listed in the restatement and the public policy issues surrounding the case. Sometimes, when the facts lend themselves to a summary judgment ruling, superseding intervening cause may be decided before the jury hears the case. It is still difficult to predict however, what any given court will determine on a regular basis. The best predictor is likely a common sense fairness evaluation. If it seems wholly unreasonable that a tortfeasor should be held liable for a subsequent injury, the court is likely to find a public policy reason to preclude liability. For example, just because you didn’t tie your doghouse to your car well enough doesn’t mean that you should have to pay for injuries to the sergeant who fell onto railroad tracks when she tried to jump over a concrete barrier to rescue the deputy who was hit by a car while cleaning up debris left by a car that hit the doghouse that fell off your car and onto the highway.

[1] Liethen v. Allen, 294 Wis. 2d 698, 717 N.W.2d 853 (2006). (unpublished decision)

[2] Kitter v. Lenard, 235 Wis. 411, 291 N.W.2d 814 (1940)

[3] McFee v. Harker, 261 Wis. 213, 52 N.W.2d 381 (1952)

[4] Sanem v. Home Ins. Co., 119 Wis. 2d 530, 537-38, 350 N.W.2d 89 (1984)

[5] Fandrey v. American Family Mut. Ins. Co., 272 Wis. 2d 46, 680 N.W.2d 345, 2004 WI 62

[6] Id.

[7] See Stewart v. Wulf, 85 Wis. 2d 461, 476, 271, N.W.2d 79, 86 (1978)

[8] Coffey v. Milwaukee, 74 Wis. 2d 526, 541, 247 N.W.2d 132 (1976)

[9] Fandrey, 272 Wis. 2d at ¶13

[10] Stewart, 85 Wis. 2d at 479

[11] See Ryan v. Cameron, 270 Wis. 325, 331, 71 N.W.2d 408 (1955)

[12] Fandrey, 272 Wis. 2d at ¶ 15, Cefalu v. Continental Western Ins. Co.,285 Wis. 2d 766, 703 N.W.2d 743.

[13] Stewart v. Wulf, 85 Wis. 2d 479

[14] 272 Wis. 2d 46, 680 N.W.2d 345, 2004 WI 62

[15] Id. at ¶ 21 (citations omitted.)

[16] 251 Wis. 390, 29 N.W.2d 719 (1947)

[17] Id.

[18] 48 Wis. 2d 321, 179 N.W.2d 885 (1970)

[19] 272 Wis. 2d 46.

[20] 285 Wis. 2d 766

[21] 256 Wis. 47, 39 N.W.2d 721 (1949).

[22] Id.

[23] 85 Wis. 2d 479

[24] Johnson v. Heinz. 73 Wis. 2d 286, 243 N.W.2d 815 (1976)