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Robinson v. Health Midwest Development Group3/6/2001
for the respondent based on a finding that the appellant could not establish at trial the causation element of her negligence claim was error. This then is the issue we must determine in this point.
To succeed at trial on her claim of negligence against the respondent as to a breach of a duty to warn, the appellant would be required to show, inter alia, that the respondent's medical staff's failure to warn Schmidt not to drive was not only the cause in fact, but the proximate cause of her injuries. Esmond v. Bituminous Cas. Corp., 23 S.W.3d 748, 752 (Mo. App. 2000). "The trier of fact normally decides causation, especially where reasonable minds could differ as to causation on the facts of the case." Robinson, 24 S.W.3d at 77 (citations omitted). "Absolute certainty is not required in proving a causal connection between a negligent defendant's actions and the plaintiff's injury . This connection can be proven by reasonable inferences from proven facts or by circumstantial evidence." Derrick v. Norton, 983 S.W.2d 529, 532 (Mo. App. 1998) (citations omitted).
The test for cause in fact is the "but for" test: Would the injuries claimed by the plaintiff have occurred "but for" the alleged negligent conduct of the defendant? Robinson, 24 S.W.3d at 77. Here, the argument as to satisfying the "but for" test would be that the summary judgment record would not foreclose a fact finder from finding that the appellant's injuries would not have resulted but for the failure of the respondent's medical staff to warn Schmidt not to drive in that the record would indicate that the appellant could produce evidence at trial from which a reasonable fact finder could infer that if Schmidt had been warned not to drive because of the danger she posed to herself and others if she drove under the influence of the Compazine, she would have chosen, as a matter of self-preservation and out of her consideration for the safety of others, not to drive. See Arnold, 834 S.W.2d at 194 (holding that there is a presumption that a plaintiff will heed a warning if given adequate information). Further, nothing in the undisputed facts alleged by the respondent in its motion would establish that the dangers of taking Compazine and driving were known to Schmidt. In addition, we believe that the appellant could also produce evidence at trial from which a fact finder could reasonably infer that as a result of receiving the injection of Compazine from the respondent's medical staff, Schmidt became drowsy and dozed off while driving from the respondent's facility, causing her to cross the center line of the road and hit the appellant's vehicle, resulting in the appellant's injuries. Consistent with this fact is the evidence which the appellant argues would show that Schmidt took no evasive action whatsoever to avoid the collision. As such, we find that the appellant could conceivably satisfy the "but for" test that the injuries complained of would not have occurred but for the failure to warn. The issue then is whether the summary judgment record would support a finding of proximate cause.
Proximate cause is not causation in fact:
Proximate cause requires something in addition to a 'but for' causation test because the 'but for' causation test serves only to exclude items that are not causal in fact; it will include items that are causal in fact but that would be unreasonable to base liability upon because they are too far removed from the ultimate injury or damage. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 865 (Mo. banc 1993).
Proximate cause is not causation in fact, but is a limitation the law imposes upon the right to recover for the consequences of a negligent act. The requirement of provi
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