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Cowart v. KMart Corporation5/8/2000
se through proof of third-party criminal conduct. The Cowarts argue that Kmart did not prove that it could not foresee the resulting damages from the sale of the ammunition to a minor. The Cowarts assert that whether any intervening cause relieves Kmart of liability is a fact issue for the jury.
Proximate cause has two elements, cause in fact and foreseeability. See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (op. on reh'g). Foreseeability means the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act created for others. See id. As a general rule, criminal conduct of a third party is a superseding cause that extinguishes the liability of the previous actor. See El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987). However, when the third party's criminal conduct is a foreseeable result of the prior negligence, the criminal act does not excuse the previous tortfeasor's liability. See Nixon, 690 S.W.2d at 550. In Nixon, the supreme court relied on section 448 of the Restatement (Second) of Torts to articulate this proposition. See id. Section 448 provides:
The act of a third person committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.Restatement (Second) of Torts § 448 (1965).
In the summary judgment context, a defendant seeking to negate foreseeability must prove more than that the intervening third-party criminal conduct occurred. See Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex. 1999). The defendant has the burden to prove that the conduct was not foreseeable. See id. The defendant negates the ordinary foreseeability element of proximate cause when the defendant presents evidence that the plaintiff's injuries resulted from intervening criminal conduct that rises to the level of a superseding cause based on factors like those in section 442 of the Restatement (Second) of Torts. See id. The burden then shifts to the plaintiff to raise a fact issue by presenting controverting evidence that the criminal conduct was foreseeable. See id.
Analysis
The Restatement factors to be considered in determining whether an intervening force rises to the level of a superseding cause are:
(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;
(b) the fact that its 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 its 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 that 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); see Humble Oil & Ref. Co. v. Whitten, 427 S.W.2d 313, 315 (Tex. 196
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