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Barber v. Constien8/4/1998
to discontinue beating. Dr. Gilliland testified the medications ordered by Dr. Chung did not play a role in the death of Mrs. Barber.
Witnesses for the defense further testified Drs. Constien and Chung complied with the applicable standard of care. Defendants also elicited testimony that Dr. Merritt had deviated from the standard of care in failing to order blood gases, and that Nurse Godard deviated from the standard of care by administering Demerol and failing to contact Dr. Chung and question his order.
At the charge conference, defense counsel requested that the jury be instructed on intervening causation, tendering to the trial court North Carolina Pattern Instruction (N.C.P.I.)--Civil 102.28, entitled "Proximate Cause--Insulating Acts of Negligence." Over plaintiff's objection, the court charged the jury in the following manner:
However, members of the jury, a natural and continuous sequence of causation may be interrupted or broken by the negligence of a second person. This occurs when a second person's negligence causes its only natural and continuous sequence which interrupts, breaks, displaces or supersedes the consequences of the first person's negligence. Under such circumstances the negligence of the second person would be the sole proximate cause of death and the negligence of the first person would not be a proximate cause of death.
Parenthetically, we note the parties appear to assume, and we agree, that the word "only" in the second sentence of the instruction is a transcription error for the word "own" set out in N.C.P.I.--Civil 102.28.
The jury returned a verdict in favor of defendants. In a 13 February 1996 order, the trial court denied plaintiff's subsequent "Motion for a New Trial" pursuant to N.C.R. Civ. P. 59. From this order and the judgment entered 2 November 1995, plaintiff entered timely notice of appeal.
Plaintiff asserts two primary bases for assigning error to the trial court's instruction on intervening negligence: (1) the evidence was insufficient as a matter of law to support such an instruction, and (2) the charge "incorrectly stated the law, and was prejudicially incomplete, misleading, and confusing." Turning to plaintiff's first contention, we observe initially that intervening negligence, also referred to in our case law as superseding or insulating negligence, is an elaboration of a phase of proximate cause. Childers v. Seay, 270 N.C. 721, 726, 155 S.E.2d 259, 263 (1967). Our Supreme Court has summarized the doctrine as follows:
An efficient intervening cause is a new proximate cause which breaks the connection with the original cause and becomes itself solely responsible for the result in question. It must be an independent force, entirely superseding the original action and rendering its effect in the causation remote. It is immaterial how many new elements or forces have been introduced, if the original cause remains active, the liability for its result is not shifted. Thus, where a horse is left unhitched in the street and unattended, and is maliciously frightened by a stranger and runs away: but for the intervening act, he would not have run away and the injury would not have occurred; yet it was the negligence of the driver in the first instance which made the runaway possible. This negligence has not been superseded nor obliterated, and the driver is responsible for the injuries resulting. If, however, the intervening responsible cause be of such a nature that it would be unreasonable to expect a prudent man to anticipate its happening, he will not be responsible for damage resulting solely from the intervention. The intervening cause may be culpable, intentional, or merely negl
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