Legal Memorandum: Superseding and Intervening Cause Defense

Issue: What authority exists in Washington state to support an argument that the failure of a fire department to quickly take action to clean up or warn of an oil spill after an accident was a ‘superseding cause’ of injury and thus negates the negligence of the party who caused the oil spill due to a motor vehicle accident?

Area of Law: Personal Injury & Negligence
Keywords: Superseding and intervening cause; Fire department; Oil spill
Jurisdiction: Washington
Cited Cases: 580 F. Supp. 823; 671 So. 2d 1123; 739 P.2d 1177; 257 P.3d 532
Cited Statutes: Restatement (Second) of Torts § 447(a); § 447
Date: 10/01/2011

With respect to the superseding cause defense, the Washington Supreme Court recently re-affirmed the principle in Michaels v. CH2M Hill, Inc., Michaels v CH2M Hill, Inc., 171 Wn. 2d 587, 257 P.3d 532 (2011) (citations omitted).  The court stated that in determining

whether the actions of a third party were a supervening cause, we have looked to the Restatement (Second) of Torts. As we have noted,

Pursuant to § 447(a) of Restatement (Second) of Torts, even if the intervening act of the third person constitutes negligence, that negligence does not constitute a superseding cause if “the actor at the time of his negligent conduct should have realized that a third person might so act.”  In fact,


If the likelihood that a third person may act in a particular manner is … one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.

Id. at 613, 257 P.3d at 545-46 (citations omitted).  Thus, even if the failure of the fire department to clean up or warn of the oil spill within 30 minutes of a crash was itself negligent, the department’s failure to act that quickly was certainly a foreseeable possibility.  “[O]nly intervening acts which are not reasonably foreseeable are deemed superseding causes.”  Anderson v. Dries & Krump Mfg. Corp., 48 Wn. App. 432, 442, […]