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1-2 New York Practice Guide: Negligence 2.05

New York Practice Guide: Negligence > UNIT I: LAW OF NEGLIGENCE > CHAPTER 2 Law of
Negligence > PART A. LEGAL BACKGROUND

Author
Susan Friedman*
2.05 Proximate Cause
[1] Introduction
In order to sustain a cause of action for negligence, it is essential that the breach of the
duty be the proximate cause of the injury sustained. See Pavlou v. City of New York, 8
N.Y.3d 961, 963, 836 N.Y.S.2d 506, 868 N.E.2d 186 (2007) (crane had excessive load in
violation of applicable regulation, but this was not proximate cause of accident when
crane was not at all safe to operate because of pre-existing crack); Williams v. Stevenson
Commons Assoc., 31 A.D.3d 289, 819 N.Y.S.2d 245, 246 (1st Dept 2006) (when there
was no evidence that any negligence by a security company contributed to plaintiffs
slip and fall at an apartment complex, the action against the security company was
dismissed); Clementoni v. Consolidated Rail Corp., 30 A.D.3d 986, 817 N.Y.S.2d 474,
476 (4th Dept 2006), affd, 8 N.Y.3d 963, 836 N.Y.S.2d 507, 868 N.E.2d 187 (2007)
(failing to erect a warning or gate on a private road near a railroad crossing was not the
proximate cause of an accident when the driver of the vehicle that was struck by a train
knew of the crossing prior to the accident); Pizzimenti v. Henn, 16 A.D.3d 1070, 791
N.Y.S.2d 240, 242 (4th Dept 2005) (a car ran into the front of a store, striking two
pedestrians, and the court rejected plaintiffs contention that the failure to demarcate the
sidewalk from the parking lot of the store caused the accident, because this was
completely unrelated to the real cause, i.e. the inability of the driver to control her
vehicle); Biggs v. Mary Immaculate Hosp., 303 A.D.2d 702, 758 N.Y.S.2d 83, 84 (2d
Dept 2003) (there was no rationale basis for the jury to find that an alleged failure to
properly evaluate and treat a liver condition was the proximate cause of massive
bleeding from esophageal varices that resulted in decedents death). Bovasso v. Tower
45 Limited Partnership, 278 A.D.2d 79, 717 N.Y.S.2d 578, 579 (1st Dept 2000)
(plaintiff was struck by a ceiling access door while standing on a ladder to check a
smoke purge system that had a missing fan; the electrical subcontractor who was
supposed to have installed the fan was not liable because a defective latch caused the
injury and the missing fan was not a proximate cause of the accident). Rivera v. City of
New York, 212 A.D.2d 403, 622 N.Y.S.2d 681 (1st Dept 1995) (dismissal of plaintiffs
complaint, for injuries sustained in a fall caused by a pothole, was reversed; the
appellate court held that plaintiff had established a nexus between her fall and the injury
sustained, stating that, even without expert testimony, admission of the record of
*

J.D., Brooklyn Law School; member of the New York State Bar.

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plaintiffs treatment at the emergency room, along with her own testimony as to the
accident, established the requisite proximate cause in the negligence action against the
city). See also DeCayette v. State, 29 A.D.3d 934, 817 N.Y.S.2d 317, 318 (2d Dept 2006)
(a finding of no liability was reversed, when a prison inmate was injured after a bus
being driven by a corrections officer struck a parked car; however, a new trial was
ordered because there was an open question regarding whether the drivers negligence
was the proximate cause of the injuries); Wheeler v. GrandeVie Senior Living Cmty., 31
A.D.3d 992, 819 N.Y.S.2d 188, 190 (3d Dept 2006) (a landowner was not liable for an
alleged failure to warn of an icy condition, when plaintiff did not follow the landowners
employee down a shoveled and salted ramp and chose instead to walk on a
snow-covered walkway); Grover v. Town of Montour, 252 A.D.2d 859, 675 N.Y.S.2d
686, 687 (3d Dept 1998) (14-year-old boy was killed while riding a bicycle in
defendant-town when he struck a concrete wall under a railroad overpass; where 1)
decedents bicycle did not have brakes, 2) he was not wearing a helmet, 3) he was
familiar with the railroad overpass prior to the accident, 4) the area was posted with
signs warning of the overpass and the winding nature of the road, and 5) he disregarded
his mothers instructions to walk his bicycle down the hill approaching the overpass, the
Towns alleged negligence in failing to remove and replace the railroad overpass and
allowing the roadway under the overpass to remain dangerously narrow and curvy was
not the proximate cause of the accident as a matter of law); Randolph v. Long Island
College Hospital, 234 A.D.2d 441, 651 N.Y.S.2d 172, 173 (2d Dept 1996) (in a medical
malpractice action, there was no evidence to indicate that defendants failure to examine
plaintiff or to perform tests was a proximate cause of plaintiffs injury, because there
was no proof that any of these measures would have prevented or minimized the injuries
suffered); Button v. Rainbow Prods. & Servs., 234 A.D.2d 664, 650 N.Y.S.2d 869 (3d
Dept 1996) (plaintiffs election to jump over a puddle of water in a parking lot, rather
than go around it, was the proximate cause of his injuries and the parking lot merely
furnished the location for the occurrence of the accident).
Generally, an act or omission is the proximate cause of an injury if it was a substantial
factor in bringing about the injury, that is, if it had such an effect in producing the injury
that reasonable people would regard it as the cause of the injury. See N.Y. Pattern Jury
Instructions-Civil, PJI 2:70 (Lawyers Coop. 1974); see also Alexander v. Eldred, 63
N.Y.2d 460, 483 N.Y.S.2d 168, 472 N.E.2d 996 (1984); Ferrer v. Harris, 55 N.Y.2d 285,
449 N.Y.S.2d 162, 434 N.E.2d 231 (1982), modified on other grounds, 56 N.Y.2d 737,
451 N.Y.S.2d 740, 436 N.E.2d 1342 (1982). Absent a showing of proximate cause,
recovery will be denied. See also Babitskaya v. Mosvideofilm Russia, Inc., 98 A.D.3d
639, 950 N.Y.S.2d 275, 275 (2d Dept 2012) (slip and fall case dismissed due to inability
to identify cause of fall); Whitehead v. Reithoffer Shows, Inc., 304 A.D.2d 754, 759
N.Y.S.2d 125, 126 (2d Dept 2003) (when a vehicle caused plaintiff to swerve and collide
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with the back of a disabled tractor trailer in the right lane of a highway, it was held that
the tractor trailer did not proximately cause the accident and only furnished the
condition or occasion for the occurrence of the accident); Vayser v. Waldbaum, Inc., 225
A.D.2d 760, 640 N.Y.S.2d 179, 180 (2d Dept 1996) (the plaintiff, a pedestrian, was
struck by a truck in a parking lot adjacent to defendants store; the court held the
complaint should be dismissed as the premises merely furnished the condition or
occasion for the occurrence of the event rather than [being] one of its causes; there was
no causal connection between the design or maintenance of the shopping center and the
accident). In Smith v. Stark, 67 N.Y.2d 693, 499 N.Y.S.2d 922, 490 N.E.2d 841 (1986),
the plaintiff, an 18-year-old college student, sustained serious physical injuries during a
party when he dove or was thrown into the shallow end of an in-ground swimming pool.
The plaintiff contended that the defendant, the manufacturer and installer of the pool,
was negligent in failing to place Dept markers at appropriate locations around the pool
or take measures to apprise prospective users of the comparative Dept of the water. The
plaintiff was an experienced swimmer, familiar with in-ground pools and the proper
method of diving into water. At an examination before trial, he admitted that he had
observed a diving board at one end of the pool, that he knew that the diving board was
on the deep end of the pool, that he had seen a set of steps at the other end of the pool
and knew that to be the shallow end. He also admitted seeing several people standing
in the pool. The court held that if plaintiff dove into the pool, by virtue of the plaintiffs
general knowledge of pools, his observations before the accident and plain common
sense, he must have known that the area in which he dove was shallow. The
manufacturer of the pool could not have been at fault. The Appellate Division properly
concluded that the lack of Dept warning devices was not the proximate cause of the
plaintiffs injuries and properly dismissed the complaint. See also Heard v. City of New
York, 82 N.Y.2d 66, 603 N.Y.S.2d 414, 623 N.E.2d 541 (1993) (plaintiffs injury from
shallow-water racing dive was not proximately caused by lifeguards negligent
misrepresentation as to safety of dive and plaintiffs foreseeable reliance where
lifeguard merely acquiesced to dive after unsuccessfully trying to prevent it; plaintiff did
not reasonably rely on lifeguards actions or words).
The classic definition of proximate cause describes it as that which in a natural and
continuous sequence, unbroken by any new cause, produces the event, and without
which that event would not have occurred. Rider v. Syracuse R. T. R. Co., 171 N.Y. 139,
63 N.E. 836, 58 L.R.A. 125 (1902). See also Akinola v. Palmer, 98 A.D.3d 928, 950
N.Y.S.2d 569, 569 (2d Dept 2012) (construction fence was not proximate cause of child
being struck by vehicle and only furnished condition or occasion for it); Sherman v.
Concourse Realty Corp., 47 A.D.2d 134, 365 N.Y.S.2d 239 (2d Dept 1975) (acts which
give rise to the stream of events that culminated in the injuries); Murphy v. New York,
89 A.D. 93, 85 N.Y.S. 445 (1st Dept 1903) (that which immediately precedes and
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produces the effect). However, in a practical sense, all definitions aside, proximate cause
is always dependent on the facts of a particular case, and therefore eludes precise
definition. ONeill v. Port Jervis, 253 N.Y. 423, 171 N.E. 694 (1930). See also Ernest v.
Red Creek Central Sch. Dist., 93 N.Y.2d 664, 695 N.Y.S.2d 531, 535, 717 N.E.2d 690
(1999) (proximate cause is a question of fact for the jury when varying inferences are
possible; in this case, a jury could infer that the Countys failure to extend a sidewalk
to a point opposite a school driveway, or to provide a crosswalk, were proximate causes
of severe injuries suffered by an elementary student, who was struck by a pickup truck
when he was crossing a road near the school); Fonzi v. Beishline, 270 A.D.2d 912, 705
N.Y.S.2d 470, 471 (4th Dept 2000) (issue whether defendants conceded breach of duty
in failing to provide a pedestrian walkway was a proximate cause of the plaintiffs
accident was for the jury to decide). Cf. Williams v. State of New York, 18 N.Y.3d 981,
984, 946 N.Y.S.2d 81, 969 N.E.2d 197 (2012) (claimant was attacked by voluntary
mental patient two years after he eloped when allowed to use bathroom out of therapy
aides sight, but State was not liable because proximate cause incorporates test of
temporal duration and alleged negligent act did not occur within reasonable lapse of
time); Skibinski v. Salvation Army, 307 A.D.2d 427, 761 N.Y.S.2d 742, 743 (3d Dept
2003) (a jury found that defendants negligence was not the proximate cause of
plaintiffs fall on ice that was present in a parking lot; however, this was irreconcilably
inconsistent with the jurys finding that the ice created an unsafe condition of which
defendant knew or should have known and should have corrected).
See also Glozik v. National Freight, Inc., 171 A.D.2d 977, 567 N.Y.S.2d 562 (3d Dept
1991) (plaintiff failed to establish by a preponderance of the credible evidence that
defendants alleged negligence was the proximate cause of his injuries; the jury could
reasonably conclude that the medical experts opinions were less than credible because
they were based on information supplied by the plaintiff, and on cross-examination they
were made aware that plaintiff had earlier been in two motor vehicle accidents in which
the tractor-trailers he was driving were totaled); Collins v. Petroski, 155 A.D.2d 799, 548
N.Y.S.2d 76 (3d Dept 1989) (landowner not liable for injuries to neighbor who fell
while voluntarily pruning owners trees, where injury did not result from any unsafe
condition of owners land); Acosta v. Fuentes, 150 Misc. 2d 1013, 571 N.Y.S.2d 666
(Sup. Ct. N.Y. Co. 1991) (restaurant workers moving of patron who was choking was
not shown to be the proximate cause of his death, and their failure to administer the
Heimlich Maneuver did not impose liability upon them in this circumstance), affd, 183
A.D.2d 483, 585 N.Y.S.2d 1016 (1st Dept 1992).
The fact that a defendant is negligent is not an automatic basis for liability, because it
must be shown that such negligence proximately caused the injury. For example, in
Cona v. Dwyer, 292 A.D.2d 562, 739 N.Y.S.2d 595, 596 (2d Dept 2002), it was held that
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defendant was negligent but that this negligence was not a proximate cause of the
accident and this was not inconsistent and against the weight of the evidence. The court
found that these issues were not so inextricably woven as to make it logically
impossible to find negligence without also finding proximate cause. See also Kenney
v. City of New York, 30 A.D.3d 261, 817 N.Y.S.2d 264, 265 (1st Dept 2006) (defendant
was not liable for plaintiffs trip and fall on courthouse steps where construction work
was being done even if it supplied laborers for that work, because plaintiff could have
had access to blocked handrails is she had chosen another available path); Lee v. NYC
Housing Auth., 25 A.D.3d 214, 803 N.Y.S.2d 538, 541 (1st Dept 2005) (even if a hole
in a fence was due to negligence on the part of defendant, it was not the legal cause of
plaintiff getting struck by a car, when a baseball went through the hole, rolled down the
sidewalk and into the street, where plaintiff tried to retrieve it); Trojcak v. Javcon Mach.,
Inc., 18 A.D.3d 740, 795 N.Y.S.2d 345 (2d Dept 2005) (evidence of negligence alone is
insufficient to establish liability; it must be proven that the negligence was a cause of
the event that produced the harm).
In a decision that was reversed, a federal district court held that there is no causal
connection between a disease such as asbestosis and colon cancer. Even if there is a
positive correlation between the incidence of the two diseases, the court held, this
statistical observation does not satisfy the requirement for direct evidence of biological
causation, even if it is conceded that exposure to asbestos increases the likelihood of
contracting colon cancer. To carry the burden of proving that a persons colon cancer
was more probably than not caused by asbestos exposure, the plaintiff would need to
show epidemiological data clearly indicating that a person with asbestosis had a relative
risk of 2.0 for colon cancer. In re Joint Eastern & Southern Dist. Asbestos Litig.
(Maiorana), 774 F. Supp. 116 (1991). However, the Second Circuit held that summary
judgment should have been granted. The court held that the plaintiff presented enough
clinical evidence to sustain a cause of action, including the testimony of two experts
who did not rely on epidemiological studies alone. They testified that the decedents
exposure to asbestos was a significant factor and proximate cause in the development
of his colon cancer. They based their conclusions on a review of decedents medical and
occupational history, their expertise in their respective fields and the lack of other
factors that could have caused the cancer. If they had relied solely on epidemiological
studies, they would have been required to prove epidemiological evidence of a certain
magnitude. The Second Circuit expressly declined to decide whether the district courts
ruling was correct as to the requirements for presenting epidemiological evidence when
that evidence alone is presented. In re Joint E. & S. Dist. Asbestos Litig., 964 F.2d 92
(1992).
The Second Circuit has declined to adopt a strict requirement for proof of causation in
asbestos cases. In such cases, that circuit has consistently held that the plaintiff is not
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required to prove specifically that the defendant manufacturers products, as distinct

from other asbestos-containing products, injured the plaintiff or the decedent. See, e.g.,
Kreppein v. Celotex Corp., 969 F.2d 1424 (2d Cir. 1992). See also Hamilton v. Beretta
U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055, 1068 (2001) (plaintiffs
sought to hold handgun manufacturers liable on market share theory of liability;
however, market share theory is appropriate only when product at issue is fungible, like
asbestos or DES; also, product in this case was not defective and defendants conduct
was not equally culpable but rather varied, creating varying risks).
Compare Bulson v. 1929 Assocs., 152 A.D.2d 529, 543 N.Y.S.2d 469 (2d Dept 1989),
appeal dismissed, 75 N.Y.2d 865, 552 N.Y.S.2d 930, 552 N.E.2d 178 (1990), as a
clear-cut case to the contrary. Plaintiff roofer put his foot through a skylight while
carrying a bucket of hot tar, which then splashed over him. Held, the failure (omission)
to provide safety devices with respect to work around the skylight was the proximate
cause of plaintiffs injury, making the premises owner liable under Labor L. 240(1).
In essence, proximate cause represents a policy decision by which it is determined how
far an effect may be removed from its cause in fact for the actor nevertheless to be held
legally responsible. Sherman, 47 A.D.2d 134, 365 N.Y.S.2d 239 (2d Dept 1975). See
also Lugo v. Brentwood Union Free School Dist., 212 A.D.2d 582, 622 N.Y.S.2d 553 (2d
Dept 1995) where a vehicle was driven out of a school parking lot without stopping and
struck plaintiffs automobile. The court held that possible improper placement of a stop
sign could not be the basis for liability, because the sole proximate cause of the accident
was the failure of the exiting driver to exercise reasonable care. The court stated that a
specific duty of care was imposed upon the exiting driver by the Vehicle and Traffic
Law, and any extension of that duty to the school district was beyond the limits of public
policy. In making that determination the courts look at a variety of elements, including
whether the particular act constituted the first cause in time, its proximity in time,
foreseeability of the injury, whether it was a natural and probable consequence of the
act, whether there was an intervening or superseding cause, and whether there were any
concurrent causes.
See Benaquista v. Municipal Housing Auth., 212 A.D.2d 860, 622 N.Y.S.2d 129 (3d
Dept 1995) (plaintiff was injured in defendants building when she fell while walking
on a stairway. She contended that a defect in the intercom system, which prevented her
from simply buzzing in a guest at the downstairs entrance, caused her to have to walk
down the stairs where she fell. The court held that such a but for test of causation is
inconsistent with accepted tort law rules and that the intercom defect simply furnished
a condition or occasion for the injury but did not put in motion the agency by which the
injuries were inflicted. The intercom system was not designed nor intended to prevent
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tenants from falling on the stairs and stairs are not inherently dangerous). Each of these
elements is discussed below.
[2] First Cause in Time
In order to impose liability for an injury, such injury must have been the natural and
probable consequence of the defendants negligent act or omission; the act of a party
sought to be charged will not be regarded as a proximate cause unless it is in clear
sequence with the results and unless it could have been reasonably anticipated that the
consequences complained of would result from the alleged wrongful act. Hoggard v.
Otis Elevator Co., 52 Misc. 2d 704, 276 N.Y.S.2d 681 (Sup. Ct. N.Y. Co. 1966), affd,
28 A.D.2d 1207, 285 N.Y.S.2d 262 (1st Dept 1967). It is not the first cause in time that
is necessarily the proximate cause of the injury. Hartman v. Berlin & Jones Envelope
Company, 71 Misc. 30, 127 N.Y.S. 187 (Sup. Ct. Kings Co. 1911), affd, 146 A.D. 926,
131 N.Y.S. 1119 (2d Dept 1911). The immediate cause of an injury does not, however,
serve as a bar to the consideration of any prior negligent act as the proximate cause; it
is sufficient if the actors neglect gave rise to a stream of events that culminated in the
injury. Sherman v. Concourse Realty Corp., 47 A.D.2d 134, 365 N.Y.S.2d 239 (2d Dept
1975). But cf. Troncoso v. Home Depot, U.S.A., Inc., 258 A.D.2d 644, 685 N.Y.S.2d 797,
798 (2d Dept 1999) (plaintiff was injured when he used a power grinder as a saw by
removing the safety guard; although a store employee had shown him how to remove
the safety guard, the store was not liable because plaintiffs own conduct was the sole
proximate cause of his injuries).
[3] Proximity in Point of Time
The fact that the injury occurred almost immediately following the act complained of
may be some evidence that the act was the proximate cause of the injury. However, the
proximity in point of time ordinarily is of little importance and despite the elapsing of
a substantial time period between the act and the injury, the act may be deemed the
proximate cause of the injury. Fuller v. Preis, 35 N.Y.2d 425, 363 N.Y.S.2d 568, 322
N.E.2d 263 (1974). It is well recognized that through lack of care a person may set in
motion forces which touch the person or property of another only after a long interval
of time. Hoggard, 52 Misc. 2d 704, 276 N.Y.S.2d 681 (Sup. Ct. N.Y. Co. 1966), affd, 28
A.D.2d 1207, 285 N.Y.S.2d 262 (1st Dept 1967). In Fuller, plaintiffs decedent was
injured in an automobile accident in which his head struck the frame and window of his
car. Thereafter, he began having seizures and was found to have sustained certain head
injuries; seven months after the accident, the decedent committed suicide. Upon the
testimony of the decedents physician, the jury concluded that the suicide was an
involuntary act of the victim, and was a direct consequence of the defendants
negligence in causing the accident. The Court of Appeals found that the jury reached a
conclusion that was legally and medically supportable.
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Sometimes, the lapse of time is so considerable that a break in the chain of events and
the intervention of other causes is likely to occur. Firman v. Sacia, 11 Misc. 2d 243, 173
N.Y.S.2d 440 (Sup. Ct. Schoharie Co. 1958), affd, 7 A.D.2d 579, 184 N.Y.S.2d 945 (3d
Dept 1959) (seven years was too long a time lapse between the injuring of a child in
an automobile accident and the subsequent shooting of another child by the injured child
allegedly as a result of his mental and physical condition caused by the original accident
to sustain a recovery in an action against the operator of the automobile who caused the
original injuries).
[4] Injury Reasonably Foreseen and Anticipated
One of the prerequisites of liability based on negligence is that the risk of injury or
damage must have been reasonably foreseeable. See relevant discussion at 2.02,
above. Foreseeability of the risk of injury or damage is an indispensable requisite of
negligence. Waldon v. Little Flower Childrens Service, 1 N.Y.3d 612, 776 N.Y.S.2d 532,
533, 808 N.E.2d 852 (2004) (a private social services agency could not be held liable
for the stabbing of a foster parent by her foster childs biological mother as she was
leaving defendants premises, because the mother had no history of violence, she had
not threatened agency staffer the foster parent in the past, and, due to the suddenness of
the attack and its location, the agencys security staff had no opportunity to intervene to
assist the foster parent). See also Lynfatt v. Escobar, 71 A.D.3d 743, 896 N.Y.S.2d 450,
451 (2d Dept 2010) (plaintiff was outside zone of foreseeable harm when van was
propelled into airport terminal window by another vehicle and plaintiff jumped out of
seat 40 feet away and allegedly injured his neck); Lynch v. Winchester Homeowners
Assn., Inc., 63 A.D.3d 1111, 883 N.Y.S.2d 247, 248 (2d Dept 2009) (plaintiff lost four
fingers when catch basin lid fell on hand as he descended into it, but failure to have
ladder rungs on inside of basin merely furnished occasion for unrelated act to cause
injuries); Danielenko v. Kinney Rent A Car, Inc., 57 N.Y.2d 198, 455 N.Y.S.2d 555, 441
N.E.2d 1073 (1982) (the placing of a bomb in a rented car is not a foreseeable event so
as to make the car rental company liable for injuries to the plaintiffs when the bomb
exploded). The proximate cause must be one which in view of all surrounding
circumstances might readily have been foreseen by an ordinary prudent person as likely
to result in injury. Rhabb v. New York City Housing Auth., 41 N.Y.2d 200, 391 N.Y.S.2d
540, 359 N.E.2d 1335 (1976). Thus, the rule is well established that for a negligent act
to be regarded as the proximate cause of an injury to another, the injury must be one
which could reasonably be foreseen. Fordham-Coleman v. National Fuel Gas Distrib.
Corp., 42 A.D.3d 106, 834 N.Y.S.2d 422, 428 (4th Dept 2007) (decedents failure to
move elsewhere, pursuant to remedies under Public Service Law, or make greater efforts
to obtain public assistance were not extraordinary, unforeseeable events that severed
connection between gas companys negligence and decedent freezing to death in
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residence); Kemper v. Arnow, 18 A.D.3d 939, 795 N.Y.S.2d 138, 140 (3d Dept 2005)
(plaintiffs conduct, in grabbing the jacket of a person on a snowmobile as the
snowmobile was accelerating, was held to be an unforeseeable, extraordinary intervening
act that broke any causal connection to the snowmobile drivers alleged negligence);
Greene v. Toys R Us, Inc., 292 A.D.2d 568, 739 N.Y.S.2d 437, 437 (2d Dept 2002)
(summary judgment was denied when a child fell from an apparatus in a toy store on
which the slide attachment had been removed because it was only being used for display
purposes; there was a question of fact regarding whether the accident was reasonably
foreseeable under the circumstances); Colberg v. New York City Housing Authority, 278
A.D.2d 27, 716 N.Y.S.2d 670, 670 (1st Dept 2000) (no prima facie case of negligence
existed when there was no indication that plaintiffs injuries were foreseeable; plaintiff
was injured while attempting to plug a leak on a roof that he, and all of defendants other
tenants, had been prohibited access by defendant landlord). Goodman v. General Motors
Corp., 235 A.D.2d 456, 652 N.Y.S.2d 626, 627 (2d Dept 1997) (plaintiff was struck by
a drunk drivers vehicle while he was unloading papers from the back of a van
manufactured by General Motors (GM); GM was found to be 5% liable for the accident,
based on an alleged design defect regarding inadequate rear lighting; the court held,
however, that the sole proximate cause of the accident was the drunk drivers negligence
combined with plaintiffs culpable conduct in standing in the street in the dark,
reasoning that to hold otherwise would stretch the limits of foreseeability beyond
acceptable limits). Ward v. State, 81 Misc. 2d 583, 366 N.Y.S.2d 800 (Ct. Cl. 1975);
Payne v. City of New York, 277 N.Y. 393, 14 N.E.2d 449 (1938), 115 A.L.R. 1495. See,
e.g., Di Ponzio v. Riordan, 224 A.D.2d 139, 645 N.Y.S.2d 368 (4th Dept 1996) (deciding
an issue of first impression for appellate courts in New York, the court held, as a matter
of law, that it was not foreseeable to the defendants, owners of a gasoline service station,
that an unattended parked car, with its motor running, would inexplicably move and
strike a patron); Root v. Feldman, 185 A.D.2d 409, 585 N.Y.S.2d 834 (3d Dept 1992)
(injuries to bar patron on stairs were foreseeable consequence of bars failure to keep
stairs dry, provide adequately wide stairway and provide a handrail from top to bottom;
it was foreseeable that from a crowd of 200300 patrons, two customers would use the
stairs in opposite directions at the same time). However, there must be more than mere
foreseeability of injury for the court to hold that a defendant may be held liable for
alleged negligent conduct. Thus, for example, in In the Matter of New York State
Silicone Breast Implant Litigation, 166 Misc. 2d 299, 632 N.Y.S.2d 953, 956 (Sup. Ct.
N.Y. Co. 1995), the plaintiffs alleged that Dow Chemical fail to exercise reasonable care
in performing its research and testing on silicone, resulting in injuries to users of
medical implants that contained silicone. The court said, however, that under New York
law, the mere fact of foreseeability is not sufficient by itself to create a duty to exercise
reasonable care. Rather, the defendant must owe a duty to the particular plaintiffs, and,
in this case, where there was only a tenuous connection between Dow Chemical and the
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ultimate purchasers of breast implants, no such duty could be found. Dow Chemical
never provided or undertook to provide the plaintiffs with any services, any information
or any product. Similarly, there is no evidence that the ultimate purchasers of the breast
implants ever relied on Dow Chemical or any information Dow Chemical provided to
Dow Corning in making the decision to receive breast implants. Moreover, there is no
evidence that Dow Chemical had any contact with any of these plaintiffs or even knew
their identity. Thus, plaintiffs cannot establish a sufficient relationship between
themselves and Dow Chemical to justify imposing a duty upon Dow Chemical.
Although Dow Chemicals may have had a duty to the actual users of its research such
as Dow Corning, that liability does not extend ad infinitum to any potential ultimate user
of a product which contains a silicone component.
[5] Foreseeing Exact Occurrence
Negligence may be established although the actor did not have notice of the particular
manner in which an accident would occur as long as it was reasonably foreseeable by
an ordinary prudent person that some injury would result from the action. Williams v.
State, 308 N.Y. 548, 127 N.E.2d 545 (1955). It is sufficient that the condition is a
dangerous one and that the one charged with negligence should reasonably have
foreseen that injuries could result from his act or omission. Rivera v. City of New York,
10 A.D.2d 72, 197 N.Y.S.2d 261 (1st Dept 1960).
[6] Natural and Probable Consequences of Act
In order to impose liability for an injury, such injury must have been the natural and
probable consequences of the defendants negligent act or omission. Hoggard v. Otis
Elevator Co., 52 Misc. 2d 704, 276 N.Y.S.2d 681 (Sup. Ct. N.Y. Co. 1966), affd, 28
A.D.2d 1207, 285 N.Y.S.2d 262 (1st Dept 1967).
See also Furman Rawlings v. New York City Tr. Auth., 61 A.D.3d 478, 877 N.Y.S.2d 40,
41 (1st Dept 2009) (plaintiff stepped backward onto extension cord that shocked her,
but failure to provide adequate lighting was not proximate cause of injury despite
contention that defendants failure to provide this created need for cord); Perry v. Millio,
245 A.D.2d 358, 667 N.Y.S.2d 387, 388 (2d Dept 1997). A tenant fell asleep in the living
room, leaving chicken to fry in the kitchen. Her landlord was not liable when she burned
herself with hot oil after waking up smelling smoke, because there was no causal
connection between a malfunctioning smoke alarm and plaintiffs accident. The
wrongdoer must answer for all of the consequences that may ensue in the ordinary
course of events. The wrongdoer is not liable for a remote consequence, but only when
the injury resulting flows directly from his or her act or omission. Prudential Society,
Inc. v. Ray, 207 App. Div. 496, 202 N.Y.S. 614 (4th Dept 1924), affd, 239 N.Y. 600, 147
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N.E. 212 (1924). See, e.g., Spoto v. S.D.R. Construction, Inc., 226 A.D.2d 202, 641
N.Y.S.2d 20, 2223 (1st Dept 1996) (plaintiff sought recovery for the negligence of
defendant and third-party defendant in causing her to fall and injure her right knee in
1986 while working at a bank branch owned by third-party defendant; initial injury
caused chondromalacia, a deterioration of the bone and/or cartilage in her knee and
attendant instability, which in turn caused plaintiffs second fall in 1990, which in turn
resulted in multiple fractures of plaintiffs right tibia and fibula, with serious continuing
complications; the court said that it is well settled that conflicts in expert testimony
present questions for the jury to resolve and that the evidence in this case presented at
least two questions for the jury to decide: whether the plaintiffs knee dysfunction was
a proximate cause of her 1990 injuries and whether the plaintiffs 1986 fall was the
proximate cause of the knee dysfunction; submission of only the former question to the
jury, and denial of defendants specific request to submit the latter question, was error);
Levitt v. Lenox Hill Hosp., 184 A.D.2d 427, 585 N.Y.S.2d 401 (1st Dept 1992) (plaintiff
who had a known history of narcotics addiction was given an addictive pain killer
following surgery and treatment of broken knee; he became re-addicted, passed bad
checks, was convicted of grand larceny and incarcerated, used a shared needle to inject
intravenous drugs in prison and contracted AIDS and AIDS Related Complex (ARC);
in plaintiffs suit against hospital and treating physicians for damages caused by his
contraction of AIDS and ARC, the First Department held that the alleged proximate
cause was too remote, and that the concept of proximate cause should not be extended
to hold a health care professional responsible for an externally caused disease that a
patient might contract at a future date); Johnson v. Broomfield, 153 Misc. 2d 113, 580
N.Y.S.2d 122 (Just. Ct. Town of Mendon 1991) (defendant not liable for increase in
plaintiffs automobile insurance premiums attributable to automobile accident, which
was a remote and indirect consequence of the tortious conduct). There must be a
reasonable likelihood of danger as a result of the act complained of, since the failure to
guard against a remote consequence does not constitute negligence. Ward v. State, 81
Misc. 2d 583, 366 N.Y.S.2d 800 (Ct. Cl. 1975). There can be no liability for an act which
ordinary human care and foresight could not guard against. Gorey v. P. Chimento Co.,
Inc., 220 A.D.2d 482, 631 N.Y.S.2d 942 (2d Dept 1995) (the plaintiff was injured when,
while riding his bicycle, he was struck by a truck making a right turn; the plaintiff
alleged that a sign on the sidewalk in the proximity of defendants shop obstructed the
view of motor vehicles (including the truck driver in this case), thus causing the injury,
but the truck driver testified at an examination before trial that his view was
unobstructed and that he did not even notice the sign; the court held that where it could
not be inferred that the sign was a proximate cause of the accident, the supreme court
erred in denying the defendant-appellants motion for summary judgment). Dressler v.
Merkel, Inc., 247 A.D. 300, 284 N.Y.S. 697 (2d Dept 1936), affd, 272 N.Y. 574, 4
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N.E.2d 744 (1936). For a discussion of the duty of a manufacturer to guard against
remote possibilities in strict products liability cases, see Chapter 29, below.
However, if the consequences were only made possible by the intervening act of a third
person, which the defendant could not have reasonably anticipated, then the sequential
relation between the act and the results would not be regarded as so established as to
come within the rule of proximate cause. Saugerties Bank v. Delaware & Hudson Co.,
236 N.Y. 425, 141 N.E. 904 (1923). Accordingly, in an action by a tenant against a
landlord for injuries sustained when the tenant was assaulted by an unidentified intruder,
judgment for the plaintiff was reversed for lack of proof that the alleged negligence of
the landlord was the proximate cause of plaintiffs injuries; the court held that the act
of a party sought to be charged is not to be regarded as a proximate cause unless it is
in clear sequence with the result and unless it could have been reasonably anticipated
that the consequences complained of would result from the alleged wrongful act. Smith
v. ABC Realty Co., 71 Misc. 2d 384, 336 N.Y.S.2d 104 (1st Dept 1972). See also
Barksdale v. Henry, 228 A.D.2d 947, 644 N.Y.S.2d 591, 593 (3d Dept 1996) (plaintiff
was visiting with her grandmother in her second-floor apartment when she was shot in
the leg by a bullet fired from a third-floor apartment; the court said that even when
criminal conduct has previously occurred on a landlords premises, the landlord has a
duty to undertake minimal protective measures on behalf of his tenants only when he
knows or has reason to know from past experience that there is a likelihood of conduct
on the part of third persons that is likely to endanger the safety of a visitor; nothing in
the record in this case would have put defendant on notice that plaintiffs injuries were
readily foreseeable, thus triggering a duty to take minimal security measures). While the
landlord in Smith, 71 Misc. 2d 384, 336 N.Y.S.2d 104 (1st Dept 1972), was deemed to
have no reason to anticipate the intruder and the subsequent injury of the tenant, where
there is a history of crime in an area, landlords are expected to foresee such intrusions
and their failure to guard against them will be deemed the proximate cause of the
resulting injury. See Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467
N.E.2d 493 (1984) (state liable for failure to maintain locked doors in dormitory in
which resident student was raped, after rumors of non-residents loitering in the area and
of felonies in other campus dormitories). See the discussion of intervening and
superseding causes at 2.05[6], below.
It should be noted that when the identity of an assailant is unknown, a particular rule
applies to determine the liability of a the owner of the property where the attack
occurred. In Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 684 N.Y.S.2d 139,
141142, 706 N.E.2d 1163 (1998), the Court of Appeals held that although an assailant
must be proven to be an intruder for liability to be imposed against a landlord, victims
of criminal assaults often cannot recognize their attackers and a blanket rule, precluding
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recovery when the assailant is unidentified, places an impossible burden on victims. The
Court held that a plaintiff must still satisfy the proximate cause burden but all that is
required is evidence that renders it more likely than not that the assailant was an intruder
who gained access to the premises through a negligently maintained entrance.
Conclusive proof of the attackers intruder status is not required. See also Travieso v.
3908 Bronx Blvd. Corp., 259 A.D.2d 276, 686 N.Y.S.2d 42, 43 (1st Dept 1999) (the
electric door on a parking garage was broken for several months and removed but not
replaced by defendants; plaintiff was then assaulted in the garage and there was a factual
issue regarding whether the attackers were intruders because plaintiff knew all the other
garage tenants and had never seen the perpetrators before).
Sometimes, the nature of the act itself is indicative of whether the injury is the natural
and probable consequences of defendants act. Under some circumstances reasonable
people will anticipate that harm will follow a given act as a matter of course. For
example, shooting a gun is so dangerous to anyone who may come within reach of the
missile, however unexpectedly, as to impose a duty of precision not far from that of an
insurer. Under such circumstances, it has been held that a person acts at his or her own
peril and is liable for all injuries resulting from such action. Palsgraf v. Long Island
Railroad Company, 248 N.Y. 339, 162 N.E. 99 (1928), 59 A.L.R. 1253 (1929),
reargument denied, 249 N.Y. 511, 164 N.E. 564 (1928).
[7] Intervening or Superseding Cause
As a general rule, the act of a person will not be held the proximate cause of an injury
to another where a new and independent agency has directly intervened and directly
inflicted such injury. La Platney v. Whitmore, 111 A.D.2d 1002, 490 N.Y.S.2d 320 (3d
Dept 1985). See also Maheshwari v. City of New York, 2 N.Y.3d 288, 778 N.Y.S.2d 442,
446, 810 N.E.2d 894 (2004) (even assuming there was a lapse in security at a
Lollapalooza concert in a city park that preceded the brutal attack on plaintiff, plaintiffs
injuries were not the result of any such lapse, but were caused by an independent,
intervening criminal act; the attack was extraordinary and not foreseeable or preventable
in the normal course of events); Waldon v. Little Flower Childrens Service, 1 N.Y.3d
612, 776 N.Y.S.2d 532, 533, 808 N.E.2d 852 (2004) (a private social services agency
was not liable for the stabbing of a foster parent by her foster childs biological mother
as she was leaving defendants premises; the mother had no history of violence, she had
not threatened agency staff or the foster parent in the past, and the agencys security staff
had no opportunity to intervene to assist the foster parent). Lynch v. Metropolitan
Transp. Auth., 82 A.D.3d 716, 917 N.Y.S.2d 685 (2d Dept 2011) (intervening and
unforeseeable act of teenager consuming alcohol and ignoring friends warning that
train was approaching broke causal connection between death and any alleged
negligence); Hoang v. Man Chong Wong, 49 A.D.3d 694, 853 N.Y.S.2d 654, 654 (2d
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Dept 2008) (the intervening act of a mother and son walking into each other caused the
subject injuries and not the landlords failure to provide heat and hot water that required
transporting boiling water to the bathroom for bathing); Maldonado v. Tuckahoe Union
Free Sch. Dist., 30 A.D.3d 567, 817 N.Y.S.2d 376, 378 (2d Dept 2006) (a student
attacked another student at the victims home, and a school district was not liable for a
number of reasons, including a determination that the victims act of allowing the
assailant in to the house was an intervening and superceding occurrence that severed
proximate cause); Flores v. Dearborne Mgt., 24 A.D.3d 101, 806 N.Y.S.2d 478, 479 (1st
Dept 2005) (decedent and five others were killed by robbers who planned to kill a
resident after gaining entry by taking a particular woman hostage; instead, the
perpetrators took four captives at gunpoint, and then killed them and two others, which
led the court to conclude that the intentional conduct of the criminals was the sole
proximate cause of decedents death); Mahmood v. Pinto, 17 A.D.3d 641, 794 N.Y.S.2d
102, 103 (2d Dept 2005) (three vehicles were involved in an accident and one of the
drivers was killed when she left her vehicle and was struck by a fourth vehicle; the
actions of the driver of the fourth vehicle were held to be a superceding event, severing
the causal connection between the death and the earlier actions of the other drivers).
Engel v. Eichler, 300 A.D.2d 622, 753 N.Y.S.2d 109, 110 (2d Dept 2002) (defendant/
hospital was not liable when a driver lost control of a vehicle on a patch of ice in a
parking lot and struck a parked car in which plaintiff was sitting, because the drivers
actions were a superseding cause of the accident); Alloway v. 715 Riverside Drive, LLC,
298 A.D.2d 148, 748 N.Y.S.2d 6, 7 (1st Dept 2002) (plaintiff left her apartment after a
fire started in her kitchen but was injured when she returned to attempt to put it out; the
alleged lack of a properly placed smoke detector was rejected as a basis for recovery,
when the purpose of the smoke detector was to allow safe egress from the premises and
this had been done by plaintiff before she returned and was injured).
Carreras v. Morrisania Towers Hous. Co. Ltd. Partnership, 107 A.D.3d 618, 968
N.Y.S.2d 66, 7071 (1st Dept 2013) (when shooting victim intentionally inserted
himself into altercation, causal link between injury and defendants negligence in
allowing assailant on premises was broken); Ramos v. New York City Bd. of Educ., 107
A.D.3d 583, 967 N.Y.S.2d 718, 719 (1st Dept 2013) (student shoving another student
into electrical outlet during basketball game was superceding act that relieved school
board of liability). Peters v. Trammell Crow Co., 47 A.D.3d 419, 850 N.Y.S.2d 27, 30
(1st Dept 2008) (extensive repairs to a handrail were intervening acts that absolved the
original installing company of liability for injuries that occurred when the handrail
broke); Haughton v. T & J Elec. Corp., 309 A.D.2d 1007, 765 N.Y.S.2d 664, 665 (3d
Dept 2003) (plaintiff/maintenance workers actions, along with those of his boss and
another employee, were superseding causes of plaintiff getting severely electrocuted
when he and his co-workers decided to handle a power outage at a college by
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conducting repairs in transformer cabinets without waiting for a power company crew
to arrive); Huber v. Malone, 229 A.D.2d 469, 645 N.Y.S.2d 526, 527 (2d Dept 1996)
(while a party remains liable for all normal and foreseeable consequences of his acts, an
intervening act will constitute a superseding cause and will serve to relieve that party of
liability when the act is of such an extraordinary nature or so attenuates that partys
conduct from the ultimate injury that responsibility for the injury may not be reasonably
attributed to that party); Harris v. New York City Housing Authority, 211 A.D.2d 616,
621 N.Y.S.2d 105 (2d Dept 1995) (plaintiffs decedent was murdered in a building
owned and controlled by defendant and plaintiff contended that the murder was due to
defendants failure to install and maintain a lock on the front door of the building.
However, the murder was held to be an intentional act that was an unforeseeable,
intervening force which severed the causal connection between the alleged negligence
and defendant. Additionally, there was no evidence that entry was gained by the
murderer due to the absence of a lock, as the murderer knew many people in the
building who could have given him access).
This does not mean that every intervening cause will operate to relieve the original
negligent actor. The type of intervening cause which relieves the original wrongdoer is
a cause which interrupts the natural sequence of events, turns aside their course,
prevents the natural and probable result of the original act or omission and produces a
different result that could not have been reasonably anticipated. Hoggard v. Otis
Elevator Co., 52 Misc. 2d 704, 276 N.Y.S.2d 681 (Sup. Ct. N.Y.Co. 1966), affd, 28
A.D.2d 1207, 285 N.Y.S.2d 262 (1st Dept 1967). Such a cause is sometimes referred to
as a superseding cause. See Dewitt v. Port Authority of N.Y. and N.J., 251 A.D.2d 617,
676 N.Y.S.2d 195, 196 (2d Dept 1998) (10-year-old plaintiffs actions in trespassing
onto construction site and his subsequent action in using an apparently abandoned
luggage dolly found there, were superseding intervening acts that broke any causal
connection between any alleged negligence on the part of the defendant city of Yonkers
and the infant plaintiffs injuries.
Cf. Genao v. State, 178 Misc. 2d 512, 679 N.Y.S.2d 539, 541 (Ct. Cl. 1998) (where
patient in state psychiatric hospital was raped, defendant-hospital was liable for failing
adequately to supervise claimant; claimant was supposed to be observed every 30
minutes, but there was no credible evidence that any staff member saw claimant for
about three hours, when they heard her crying after the rape).
In Urena v. Guild, 213 A.D.2d 312, 624 N.Y.S.2d 401 (1st Dept 1995), the court held
that plaintiffs vague allegations regarding fights occurring in the general area at
unspecified times and locations prior to his attack constituted insufficient evidence of
past criminal activity to raise a triable issue as to the foreseeability of the violent assault
upon him by unknown third parties on the steps of the defendants building. The private
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landowner is only required to take protective measures where he knows or has reason
to know from past experience that there is a likelihood of conduct on the part of third
persons which is likely to endanger the safety of the visitor. No such showing of
past criminal conduct was made in this case. See also Bennett v. Twin Parks Northeast
Houses, Inc., 93 N.Y.2d 860, 688 N.Y.S.2d 94, 95, 710 N.E.2d 659 (1999) (plaintiff was
attacked by an unidentified assailant in the lobby and elevator of her apartment building;
the lower courts should not have granted summary judgment to defendants on proximate
cause grounds when there was an issue of fact whether it was more likely or more
reasonable than not that the assailant was an intruder who gained access to the premises
through a negligently maintained entrance). But see Torres v. N.Y. City Hous. Auth., 292
A.D.2d 519, 739 N.Y.S.2d 197, 198 (2d Dept 2002) (plaintiff opened his apartment door
when two assailants knocked and he was stabbed when he opened the door; even if the
locks on the outer doors to the building were nonexistent or defective, defendant/landlord
was not liable because plaintiffs act in opening the apartment door severed any liability
based on inadequate security).
See also Williams v. Citibank, 247 A.D.2d 49, 677 N.Y.S.2d 318, 321 (1st Dept 1998)
(plaintiff was allegedly assaulted by unknown assailant inside vestibule of ATM facility
at one of defendants branches; summary judgment should have been granted defendant
because plaintiff could not show that defendant had notice of prior criminal activity at
this particular ATM; plaintiffs bald, unsupported assertion that ATM was located in
high crime area was patently insufficient).
In Campbell v. State, 158 A.D.2d 499, 551 N.Y.S.2d 73 (2d Dept 1990), the superseding
act of a motorist who hit a pedestrian in a crosswalk was held to have broken any
potential causal nexus between the states alleged negligence in placing and timing a
Walk/Dont Walk sign and plaintiffs injuries.
In Detko v. McDonalds Restaurants of N.Y., Inc., 198 A.D.2d 208, 603 N.Y.S.2d 496 (2d
Dept 1993), a motorist was traveling in the wrong direction on a one-way street when,
in order to avoid a collision, he turned into the exit ramp of the defendants restaurant,
hit three cars in the parking lot, then hit the wall of the restaurant, which collapsed on
the plaintiffs. The court held that the defendants alleged negligent placement of a
one-way traffic sign, making it appear that the exit ramp to the restaurant was an
entrance ramp, was not a proximate cause of the accident, as there was no evidence that
the driver even observed the sign nor was there evidence that the intervening negligent
conduct of the driver was a normal or foreseeable event which would have imposed a
duty on the defendant to avoid harm to the plaintiffs.
The Court of Appeals ordered a new trial, where the trial court declined to give the jury
an instruction on superseding causation in a case where a city was sued by the passenger
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of an automobile injured when the driver suddenly drove away from the police,
careened off a curve and hit a tree. Mercado v. Vega, 77 N.Y.2d 918, 569 N.Y.S.2d 595,
572 N.E.2d 36 (1991).
A childs act of throwing a piece of plexiglass he had been using as a sled on town
property (the slopes of a sump) was held to be a superseding cause of injury to another
child, thus absolving the town from any liability. Thus the plaintiff failed to show a
causal connection between the towns alleged breach of its duty (to take appropriate
steps to exclude neighborhood children from its premises) and the injury. Elardo v. Town
of Oyster Bay, 176 A.D.2d 912, 575 N.Y.S.2d 526 (2d Dept 1991). Similarly, one childs
act of throwing a screwdriver, which struck the infant plaintiff in the eye, was held a
superseding cause, barring liability of the school for negligent inspection or maintenance
of the school playground. School was not in session at the time and there was no
evidence that the defendants created the condition or had notice of it. Mix v. South
Seneca Central Sch. Dist., 197 A.D.2d 855, 602 N.Y.S.2d 467 (4th Dept 1993). See also
Clark v. New York City Hous. Auth., 277 A.D.2d 338, 717 N.Y.S.2d 216, 217 (2d Dept
2000) (plaintiff was struck in the eye by a phonograph record, thrown by another person
while plaintiff was coaching football in an open field near a garbage disposal area; the
actions of the person who threw the phonograph record were a superseding cause of the
injury and not a foreseeable consequence of the alleged failure of defendant to maintain
the garbage area).
However, where harmful consequences are brought about by intervening and independent
forces which were reasonably foreseeable, there is no break in the general causation so
as to relieve the actor from liability. Verdi v. Top Lift & Truck Inc., 50 A.D.3d 574, 856
N.Y.S.2d 605, 606 (1st Dept 2008) (defendant was partially responsible for negligent
repair of a motorized power jack; workers careless maneuvering in violation of written
warnings was not so unforeseeable as to break the causal connection between the injury
and the negligent repair); Carson v. Dudley, 25 A.D.3d 983, 807 N.Y.S.2d 458, 460 (3d
Dept 2006) (plaintiffs actions, in exiting her vehicle to see if anyone was hurt after
defendants vehicle struck the parked school bus being operated by her, were
foreseeable and not an intervening and superceding cause of her fall on a snowy
roadway as a matter of law). Dumbadze v. Schwatt, 291 A.D.2d 529, 739 N.Y.S.2d 399,
400 (2d Dept 2002) (a question of fact existed regarding whether plaintiffs actions
were a superseding cause of her injuries, or were reasonably foreseeable in view of a
longstanding defective condition, when she fell from a stepladder while attempting to
repair a light fixture in a dark vestibule outside her apartment); Green v. Tanyi, 238
A.D.2d 954, 661 N.Y.S.2d 166, 167 (4th Dept 1997) (an intoxicated bar patron threw a
beer bottle at plaintiff and the court held that the bar was liable for plaintiffs injuries,
because the act of throwing the beer bottle was not a superseding cause; the risk that
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plaintiff would be injured by the assailant was created by the taverns failure to control
the assailant). On the contrary, a wrongdoer must answer for all the consequences that
may ensue in the ordinary course of events, even though such consequences are
immediately and directly brought about by an intervening cause, if such intervening
cause was set in motion by the original wrongdoer or was, in reality, only a condition
on or through which the negligent act operated to produce the injurious result. Thus,
where an adult, experienced in swimming and knowledgeable about the dangers of
diving, recklessly dove head-first into shallow water, the court ruled that recklessness to
be a superseding cause of his injuries despite allegations on the part of the plaintiff that
defendant had negligently maintained the pool and poorly supervised it. Boltax v. Joy
Day Camp, 67 N.Y.2d 617, 499 N.Y.S.2d 660, 490 N.E.2d 527 (1986). See Grover v.
Town of Montour, 252 A.D.2d 859, 675 N.Y.S.2d 686, 687 (3d Dept 1998) (where
decedents bicycle did not have brakes, he was not wearing a helmet, he was familiar
with the area in which he was riding, signs were posted warning of the presence of a
railroad overpass and the winding nature of the road, and he disregarded his mothers
instructions to walk his bicycle down a hill approaching the overpass, decedents
conduct reflected a reckless disregard for his own safety and, therefore, constituted an
unforeseeable superseding event relieving the Town of liability for the accident).
In Roberts v. New York City Housing Authority, 257 A.D.2d 550, 685 N.Y.S.2d 23, 24
(1st Dept 1999), a child was burned by steam from a hose on defendants premises.
Although plaintiff was pushed by a playmate into the steam, children roughhousing was
not so extraordinary so as to break the causal connection between the dangerous
condition and the injury. See also Alomia v. N.Y. City Transit Auth., 292 A.D.2d 403, 738
N.Y.S.2d 695, 698 (2d Dept 2002) (a truck striking a scaffold was not a superseding
cause of an accident, when plaintiff was injured while scraping paint from underneath
an elevated train line; liability was available under Labor Law 240(1), because it the
accident was foreseeable when the scaffold was erected on a busy city street); Leonardo
v. Consolidated Edison Co., 279 A.D.2d 296, 719 N.Y.S.2d 234, 235 (1st Dept 2001)
(the president of a plumbing company admitted that an explosion occurred just after he
flicked a cigarette lighter in a room into which gas had escaped, but the presidents
actions were not a superseding act that negated the negligence of other defendants,
including a gas utility company).
Similarily, in Humbach v. Goldstein, 255 A.D.2d 420, 686 N.Y.S.2d 54, 56 (2d Dept
1999), plaintiff fell to the bottom of an elevator shaft while trying to escape from an
elevator that was stuck between floors. These actions were not a superseding cause of
the injuries as a matter of law because an issue existed regarding whether this was a
foreseeable consequence of an emergency situation created by defendants.
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In Jackson v. New York City Housing Auth., 214 A.D.2d 605, 624 N.Y.S.2d 720 (4th
Dept 1995), the court held that it was a question for the jury whether the plaintiffs
conduct was a superseding cause, cutting off defendants liability, where the plaintiff
was injured when she and her young granddaughter attempted to rehang a 50-pound
sliding closet door on its track in her apartment. Plaintiff was injured when the door
slipped out of their hands and fell on plaintiffs foot. The plaintiffs alleged that the closet
door had been broken for several years, that defendant had been notified of this
condition and that it was negligent in failing to repair the door. The defendant
contended, however, that plaintiffs intervening act of dropping the closet door broke the
causal connection between its negligent conduct and her injury. The court said that the
evidence in the record presented a triable issue of fact as to whether plaintiffs actions
were a normal consequence of the defendants failure to repair the closet door. It was
foreseeable that plaintiff would attempt to repair the condition which the defendant had
neglected to correct for a prolonged period of time, and the injury she suffered was not
entirely different in character from that which would be expected to result from the
defendants failure to keep the closet door in good condition. Thus, the defendants
motion for summary judgment was properly denied, and the complaint reinstated.
However, in another case, the Buffalo Board of Education hired two 15-year-old boys
to assist the custodial staff at a local high school, and allowed the boys to work
unsupervised in a laboratory where chemicals were readily available. The boys mixed
chemicals together and created an explosive which they left lying about on the lawn of
the school. A local child found the explosive, did not know what it was and accidentally
set it off, injuring himself. The Court of Appeals upheld the reasonableness of the jury
finding that the theft of the chemicals by the boys was a reasonably foreseeable event
and precluded the acceptance of defendants argument of a superseding cause. Kush v.
Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 449 N.E.2d 725 (1983). In Weller v. Colleges
of the Senecas, 217 A.D.2d 280, 635 N.Y.S.2d 990, 993 (4th Dept 1995), plaintiff, a
college student, was riding his bike on campus at night when he veered off a paved path
onto the grass, his front tire struck a tree root, plaintiff was catapulted over the
handlebars onto the ground, and the impact rendered plaintiff a quadriplegic. Plaintiff
brought a negligence action against the college, as landowner, and against Marriott
Management Services Corp., which was under contract to maintain the buildings and
grounds. The court held that defendants failed to establish as a matter of law that
plaintiffs conduct was the sole proximate cause of the accident, i.e., a superseding event
absolving defendants of liability. Rather, it was a question of fact whether the tree root
was an obvious risk of riding a bike between the trees. It could not be said that plaintiffs
conduct was so reckless, or the risk so obvious, as to absolve defendants of all liability.
In Cherny v. Hurlburt, 150 A.D.2d 942, 541 N.Y.S.2d 283 (3d Dept 1989), defendants
automobile struck a light pole, causing it to fall across the road. The vehicle behind
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defendants stopped in turn, was struck from behind by a third vehicle, and had its front
wheels forced over the fallen light pole. The base of the pole was apparently thus
shattered. Plaintiffs work crew arrived on the scene, and plaintiffs supervisor ordered
that the pole be removed. While plaintiff was assisting in the removal, he sustained an
electrical shock and was thus injured. Defendant argued inter alia that plaintiffs
conduct in assisting fellow employees in removing the pole from the road broke the
chain of causation. The Third Department rejected the argument, stating that, An
intervening act will constitute a superseding cause only if, with the benefit of hindsight,
it appears highly extraordinary that defendants act should have brought about the harm
[Mack v. Altmans Stage Light Co., 98 A.D.2d 468, 470 N.Y.S.2d 664 (2d Dept 1984)].
The court concluded that there was nothing extraordinary in the fact that defendants
operation of his motor vehicle on a bridge on a rainy night could result in the car moving
too far to the right and striking a light pole, which should fall across the highway
necessitating removal by a Bridge Authority employee.
In Guarcello v. Rouse SI Shopping Center, 204 A.D.2d 685, 612 N.Y.S.2d 239 (2d Dept
1994), where the infant plaintiff was assaulted by a group of youths outside of a video
arcade, the court held that no acts or omissions of the arcade owner proximately caused
plaintiffs injuries and the arcade owner had no duty to protect the plaintiff, but it was
a question of fact whether the shopping mall owner owed the plaintiff a duty to protect
him from reasonably foreseeable criminal acts of third parties. Here, there was evidence
that the mall owner was aware of gangs of youths loitering outside of and near the mall
entrance and that these gangs sometimes had been involved in violent altercations.
In Cunningham v. L.P.T.G. Farragut Realty Corp., 200 A.D.2d 651, 606 N.Y.S.2d 776
(2d Dept 1994), plaintiffs brought suit to recover damages for injuries incurred when
the two-year-old infant plaintiff fell out of the window of a fourth floor apartment.
Plaintiffs alleged that defendants, owner and managing agent of the building, failed to
comply with New York City Health Code 131-15, requiring the installation of window
guards and stops in all apartments in which children 10 years or younger reside. The
court held that the regulations clearly were enacted to protect the lives and safety of
young children and that the incident in this case would not have occurred had the
window safety devices been in compliance with the regulations on the date of the
accident. Thus, the actions of the infant plaintiff could not be held a superseding cause
of the accident. See also Carmen v. PS & S Realty Corp., 259 A.D.2d 386, 687 N.Y.S.2d
96, 9899 (1st Dept 1999) (a 10-year-old was raped after opening the door to her
apartment in the mistaken belief that the intruder was a UPS delivery man; she sued the
landlord for maintaining inadequate security and defendant argued that plaintiffs act in
opening the door constituted an intervening negligent act; plaintiffs negligence, if any,
would be determined using the standard of care usual and common to children her age,
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and whether her actions were a foreseeable consequence of a circumstance created by

defendant; a question of fact existed whether to reduce or deny plaintiffs recovery).
Cf. Aviles v. Crystal Management, Inc., 253 A.D.2d 607, 677 N.Y.S.2d 330, 331 (1st
Dept 1998) (plaintiff, an experienced window cleaner equipped with a safety belt,
deliberately unhooked his safety belt and attempted to work without any support or
safety equipment while standing on a four-inch ledge three stories above the ground;
defendants breach of general duty of care pursuant to Multiple Dwelling Law 78(1)
to maintain pre-existing window anchors in good repair was not proximate cause of
injury; rather, plaintiffs own unforeseeable conduct was the superseding cause of his
injury).
In Perez v. City of Peekskill, 214 A.D.2d 552, 624 N.Y.S.2d 639 (2d Dept 1995), the top
of a van in which the plaintiff was a passenger became stuck on a steel girder that
formed part of the roof of a municipal parking lot owned by the defendant-city. The
plaintiff caught his head between the van and the girder when he stood on the rear
bumper of the van and tried to dislodge the van from the roof. In the plaintiffs
negligence action against the City alleging, inter alia, that the city had failed to properly
maintain, design, and construct the parking lot, the court below correctly held that the
question of whether the plaintiffs conduct in trying to dislodge the van constituted a
superseding cause, absolving the city from liability, was a question to be resolved by the
trier of fact.
In Cruz v. City of New York, 630 N.Y.S.2d 523 (1st Dept 1995), plaintiff sought damages
for personal injuries suffered as a result of an accident that occurred when his car struck
a large hole in a city street, rendering the car inoperable, after which he was run into by
an intoxicated driver who was driving fast and erratically. The city argued that the
actions of the intoxicated driver were a superseding cause of the accident, relieving it
of liability, but the court held that whether the drunk drivers conduct was an intervening
cause was a question of fact. The court quoted the Court of Appeals decision in
Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666,
reargument denied, 52 N.Y.2d 829, 437 N.Y.S.2d 1030, 418 N.E.2d 694:
Where the acts of a third person intervene between the defendants conduct and
the plaintiffs injury, the causal connection is not automatically severed. In such
a case, liability turns upon whether the intervening act is a normal or foreseeable
consequence of the situation created by the defendants negligence If the
intervening act is extraordinary under the circumstances, not foreseeable in the
normal course of events, or independent of or far removed from the defendants
conduct, it may well be a superseding act which breaks the causal nexus
Because questions concerning what is foreseeable and what is normal may be the
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subject of varying inferences, as is the question of negligence itself, these issues

generally are for the fact finder to resolve. In this case, said the court, a
fact-finder could conclude that defects in a heavily travelled roadway might cause
a motorist to break down in a traffic lane (since the highway had no shoulder),
creating the hazard of a collision with another vehicle travelling at a high rate of
speed. It is also foreseeable that the highway might be used by someone driving
while intoxicated.
See also Acevedo v. Camac, 293 A.D.2d 430, 740 N.Y.S.2d 380, 381 (2d Dept 2002) (an
issue existed regarding whether it was foreseeable that plaintiff would place a ladder in
a puddle of water that was caused by defendants failure to fix a leaky gutter; plaintiffs
conduct in placing a ladder in a puddle did not preclude recovery against the party
responsible for the puddle and only impacted the issue of comparative negligence).
In order for a plaintiffs actions to be a superseding cause, that partys negligence must
be more than mere culpable conduct that would be relevant in apportioning liability
under comparative negligence. For example, in Skibinski v. Salvation Army, 307 A.D.2d
427, 761 N.Y.S.2d 742, 743 (3d Dept 2003), plaintiffs fall on black ice in a parking lot
when the condition was not readily apparent. Accordingly, her alleged inattentiveness
and failure to perceive the danger was merely relevant to comparative negligence and
not a superseding cause of the accident.
In Soto v. New York City Transit Auth., 6 N.Y.3d 487, 813 N.Y.S.2d 701, 704, 846 N.E.2d
1211 (2006) (plaintiffs reckless behavior, in running on a catwalk while intoxicated in
an attempt to beat a moving train to the station, was not so egregious or unforeseeable
so as to be a superceding cause absolving defendant of all liability; an apportionment of
25% liability to defendant was affirmed).
[8] Concurrent Negligence
Despite the general rule that the act of a person will not be held the proximate cause of
an injury to another where a new and independent agency has intervened and directly
inflicted such injury, if the acts of two or more persons concur to cause an accident, each
of the parties is liable even though the other cause may have been a contributing factor.
Daas v. Pearson, 66 Misc. 2d 95, 319 N.Y.S.2d 537 (Sup. Ct. Kings Co. 1971), affd, 325
N.Y.S.2d 1011 (2d Dept 1971). In Daas, the plaintiff was a police officer who was
injured in an automobile accident when he responded to a false assist patrolman alarm
which was deliberately called in by defendant. The court ruled that the negligence of the
motorist who caused the accident was a concurring cause of plaintiffs injuries, but not
an intervening cause.
The rule is formulated as follows by the Committee on Pattern Jury Instructions:
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There may be more than one proximate cause of an accident. Where two parties
by their separate and independent acts of negligence furnish direct causes of a
single injury to another person, and it is not possible to determine in what
proportion each contributed to the injury, either is responsible for the whole
injury, even though his act alone might not have caused the entire injury, and even
though the acts are not equal in degree. New York Pattern Jury InstructionsCivil,
PJI 2:71 (Lawyers Co-op 1974).
In cases of joint tortfeasors a rule of joint and several liability will usually apply,
although in actions commenced and claims filed on or after July 30, 1986, the provisions
of CPLR 16001603 may limit operation of the rule.
The negligent act of the party charged may remain the proximate cause of the injury and
render the actor liable even though it is not the sole cause of the injury. Hoggard v. Otis
Elevator Co., 52 Misc. 2d 704, 276 N.Y.S.2d 681 (Sup. Ct. N.Y. Co. 1966), affd, 28
A.D.2d 1207, 285 N.Y.S.2d 262 (1st Dept 1967). It is well recognized that there may be
more than one proximate cause of an accident and that where two parties by their
separate and independent acts of negligence furnish direct causes of a single injury to
another person, and it is not possible to determine in what proportion each contributed
to the injury, either is responsible for the whole injury. Estate of Finn v. City of New
York, 76 Misc. 2d 388, 350 N.Y.S.2d 552 (1st Dept 1973).
[9] Several Possible Causes of Injury
Distinct from the situation where several causes converge to contribute to an injury,
discussed above as concurrent causes, is the situation where there are several possible
causes of an injury, but it is impossible to distinguish which event actually caused the
injury, and the defendant was not responsible for at least one of the possibilities. In the
instance where it is just as probable that the injury is from one cause as from another,
liability will be denied.
See also Montas v. JJC Constr. Corp., 20 N.Y.3d 1016, 963 N.Y.S.2d 164, 165, 985
N.E.2d 1225 (2013) (when slip on sand in roadway was as likely caused by debris from
one nearby construction project as from another, any determination of cause would be
speculative); Rendinaro v. City of New York, 254 A.D.2d 342, 679 N.Y.S.2d 72, 72 (2d
Dept 1998) (plaintiff alleged defendant was negligent in failing to erect Slippery When
Wet sign in advance of curve where he lost control of his vehicle; however, where there
were various possible proximate causes of accident, it was incumbent upon plaintiff to
demonstrate that it was remote that factors other than defendants negligence caused the
accident); Newton v. State of New York, 31 Misc. 2d 48, 222 N.Y.S.2d 959, (Ct. Cl. 1961),
affd, 254 N.Y.S.2d 1018 (4th Dept 1964). However, the plaintiff is not required to
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eliminate every other possible cause. Rosenberg v. Schwartz, 260 N.Y.162, 183 N.E. 282
(1932). If the plaintiff can show facts and conditions from which negligence and
causation may be inferred, this will suffice. Stubbs v. City of Rochester, 226 N.Y.516,
124 N.E. 137 (1919), 5 A.L.R. 1396 (1920).
See Silva v. Village Square of Penna Inc., 251 A.D.2d 944, 674 N.Y.S.2d 873, 874 (3d
Dept 1998) (proximate cause may be inferred from the facts and circumstances
underlying an injury, but the evidence must be sufficient to permit a finding based on
logical inferences from the record and not upon speculation alone; here, there was
nothing more than a possibility that plaintiffs fall was caused, as alleged, by the
condition of a covered carpeted walkway extending from the hotels main entrance to
the parking lot, thus compelling grant of summary judgment in favor of defendants).
Thus, in an action resulting from plaintiffs fall on an outside stairway of defendants
multiple dwelling, the court was presented with ample proof that the step was broken
and that the defendant had notice of the condition. The issue litigated was whether
plaintiff fell because the step was coated with ice, a condition for which the defendant
was not responsible under the circumstances, or whether he fell because of a defect in
the step. The court reversed a judgment for the defendant, ordered a new trial, and held
that it was error to refuse to charge that if two conditions combined to cause the
accident, for one of which the defendant was responsible, there would be liability even
though the other cause (the ice), may have been a contributing factor. Nahmias v.
Concourse 163rd Street Corp., 41 A.D.2d 719, 341 N.Y.S.2d 427 (1st Dept 1973).
In Agli v. Turner Construction Co., Inc., 246 A.D.2d 16, 676 N.Y.S.2d 54, 60 (1st Dept
1998), the plaintiff was injured when he was struck by a portion of a falling, large,
wire-mesh overhead net intended to protect workers at a construction site from falling
debris. Plaintiff alleged that a tractor-trailer struck part of the net, causing it to collapse,
but the drivers employer contended that the net fell because of an accumulation of
debris or some other inherent defect in the net. The court held that although there were
no witnesses that saw the tractor-trailer strike the net, and thus the manner of the nets
falling had to be ascertained entirely from circumstantial evidence, the plaintiff was not
required to refute remote possibilities or exclude the possibility that factors other than
the defendants breach of duty may have caused the accident in order to recover.
In Careccia v. Enstrom, 212 A.D.2d 658, 622 N.Y.S.2d 770 (2d. Dept 1995), the jury
had asked the trial judge if proximate cause meant that a defendants negligence had
to be more than 50% of the cause of the accident or if it could be any percentage. The
trial judge responded that it could not answer the question in terms of percentage but
twice instructed the jury that there could be more than one proximate cause. This was
held to have been a proper recitation of the law and the verdict in favor of defendant was
affirmed.
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In Scheer v. City of New York, 211 A.D.2d 778, 622 N.Y.S.2d 98 (2d Dept 1995), a
wrongful death action, the court held that while the standard of proof is relaxed where
the plaintiff dies as a result of the accident, speculation, guess and surmise could not be
substituted for competent evidence. The court also stated that where there were several
possible causes of the accident, one or more of which defendant was not responsible,
recovery could not be had in the absence of proof that injury was sustained by one of
the causes for which defendant was wholly or partially responsible. A verdict in
plaintiffs favor was reversed, as the instant court found that there had been no showing
of proximate cause. See also Belousov v. Warnock, 109 A.D.3d 777, 971 N.Y.S.2d 54,
54 (2d Dept 2013) (when plaintiffs deposition testimony made it clear that it would be
mere speculation to find that defendants negligence was proximate cause of accident,
complaint was dismissed).
In Valenti v. Great Atl. & Pac. Tea Co., 207 A.D.2d 340, 615 N.Y.S.2d 84 (2d Dept
1994), the plaintiff claimed that she suffered nausea, vomiting and diarrhea as a result
of having seen or eaten a worm in a can of string beans that she had purchased at the
defendants supermarket. The court granted defendants motion for summary judgment
as the plaintiff failed to sustain her burden of showing that the flu-like symptoms that
she suffered were caused by the foreign object in the can of beans. The court noted that
there might be many different causes of plaintiffs symptoms and even her own
examining physician failed to refer to the incident in his report concerning her office
visit the following day. Since the plaintiffs evidence was in the realm of speculation
and conjecture, the court dismissed the complaint.
In Holmberg v. Traverse, 213 A.D.2d 924, 623 N.Y.S.2d 953 (3d Dept 1995), the
plaintiff brought an action to recover damages for personal injuries she allegedly
sustained in an automobile accident. Where there was conflicting expert opinion
evidence concerning the cause of plaintiffs chondromalaciawhether a traumatic
reaction to the automobile accident or due to a preexisting condition there were
credibility questions for the jury to resolve. Plaintiffs testimony that she did not recall
her prior knee pain undermined her credibility, and the jury could reasonably have
rejected her entire testimony on that basis. Thus, the jury could reasonably have found,
as it did, that the accident was not the proximate cause of plaintiffs knee injury.
New York Practice Guide: Negligence
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