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Barber v. Constien8/4/1998
unforeseeability is the critical test for determining when intervening negligence relieves the original tortfeasor of liability. See, e.g., Adams v. Mills, 312 N.C. 181, 194, 322 S.E.2d 164, 173 (1984)(" he test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another, is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury")(emphasis added); Childers, 270 N.C. at 725, 155 S.E.2d at 262 ("if the injurious result was not reasonably unforeseeable, the subsequent negligence would not insulate the initial negligence")(emphasis added); Butner v. Spease and Spease v. Butner, 217 N.C. 82, 89, 6 S.E.2d 808, 812 (1940)(" he test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another, is reasonable unforeseeability")(emphasis added); Harton, 141 N.C. at 463-64, 54 S.E. 299, 302 (1906)("the test . . . is whether the intervening act and the resultant injury is one that the author of the primary negligence could have reasonably foreseen and expected")(emphasis added); Muse v. Charter Hospital of Winston-Salem, 117 N.C. App. 468, 476, 452 S.E.2d 589, 595 (" he intervening cause . . . produces a result which would not otherwise have followed, and which could not have been reasonably anticipated")(emphasis added), aff'd per curiam, 342 N.C. 403, 464 S.E.2d 44 (1995).
Commentators on North Carolina tort law agree. See William S. Haynes, North Carolina Tort Law § 19-3(M) at 715 (1989)(" o constitute an `intervening cause' the facts must be of such an `extraordinary rather than normal,' . . . nature, unforeseeable in character, in order to relieve the original wrongdoer of liability to the ultimate victim")(emphasis added) and David A. Logan and Wayne A. Logan, North Carolina Torts, § 7.30 at 166 (1996)(with respect to intervening negligence, "foreseeability is the operative notion").
Notwithstanding the absence of a reference to foreseeability in the trial court's instruction on intervening negligence, it is well settled that a jury charge must be construed in context, and isolated portions thereof "will not be held prejudicial error when the charge as a whole is correct." Bowers v. Olf, 122 N.C. App. 421, 428, 470 S.E.2d 346, 351 (1996)(citation omitted). However, viewing the instant jury charge in its entirety, we cannot say it served to compensate for the failure to refer to the critical element of foreseeability in the instruction on intervening negligence. The essential word "foresee" is found but once, in defining proximate cause, in the five paragraphs preceding that containing the instruction in question. Given the elusiveness of the concept of intervening negligence, we believe the jury was left without proper guidance to determine when intervening negligence insulates the original negligent act and becomes the sole proximate cause of injury . Cf. Lonon v. Talbert, 103 N.C. App. 686, 696-97, 407 S.E.2d 276, 283 (new trial granted where trial court failed to instruct on "insulating negligence" and " he jury instruction on proximate cause mentioned foreseeability one time and gave little explanation as to the meaning of that term").
Our Supreme Court's decision in Banks v. Shepard, 230 N.C. 86, 52 S.E.2d 215 (1949) is instructive. Defendant therein complained of the following intervening negligence instruction:
Now, the law recognizes the doctrine of intervening cause but the Court instructs you that an intervening cause will not relieve from liability when the prior or first negligence was the efficient cause of the injury. The test is not to be found in the number of intervening events but in
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