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Design Professional’s alleged errors were not the proximate cause of the death of a construction worker, and summary judgment was correctly granted because intervening negligent acts of the general contractor broke any causal connection between the alleged negligence of the engineer and the death of the worker.  The engineer designed a storm sewer for a municipality utilizing a large, elliptical-shaped concrete pipe.  After project completion, the pipe failed and had to be replaced.   Having completed the replacement, the contractor then retained a consultant to test the reason for the failure.  This testing was done at an off-site facility, and was done without the knowledge of the site designer or pipe manufacturer.  During the testing, a worker stood on top of the pipe with a concrete saw and made a long cut along its top. This resulted in the pipe splitting in half and the worker falling and being crushed under the weight of the pipe as it rolled over on him.   In the law suit against the site design engineer and pipe manufacturer, the worker’s family argued that “but for” alleged negligent decisions of the engineer and manufacturer in the use of the pipe for the project, the sequence of events that culminated with testing the defective pipe would not have occurred.   The appellate court affirmed the trial court summary judgment, finding the acts or omissions were “too attenuated” to be a usual, likely or legally cognizable cause” of the fatal injuries.    Edwards v. Anderson Engineering, Inc., 251 P.3d 660 (Kansas 2011).

In this case, the court explained that “In Kansas, an injured party’s right to recover is limited to when the injury is a direct and proximate result of a defendant’s negligence.”  The state supreme court had recently defined proximate cause and noted the plaintiff’s burden of proof as follows:

 “Proximate cause is cause ‘which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred, the injury being the natural and probable consequences of the wrongful act.’ [citation omitted]. To satisfy the plaintiff’s burden of proof on the causation element, the plaintiff must produce evidence that ‘affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.’”

 The court quoted from another Kansas Supreme Court decision that stated “[I]n considering proximate cause we retain the principle that an intervening cause component breaks the connection between the initial negligent act and the harm caused.”  And another supreme court decision quoted by the appellate court explained:

 “Whether the negligent conduct of the original wrongdoer is to be insulated as a matter of law by the intervening negligent act of another is determined by the test of foreseeability. If the original actor should have reasonably foreseen and anticipated the intervening act causing injury in the light of the attendant circumstances, his act of negligence would be a proximate cause of the injury. Foreseeability of some injury from an act or omission is a prerequisite to its being a proximate cause of the injury for which recovery is sought. When negligence appears merely to have brought about a condition of affairs or a situation in which another and entirely independent and efficient agency intervenes to cause the injury, the latter is to be deemed the direct and proximate cause and the former only the indirect or remote cause.”

 In rejecting a finding of proximate cause, the court stated:

 “In articulating their argument in a “but for” manner, the Edwards family has demonstrated the weakness in its “sequence of events” analysis. In retrospect it can often be said that, but for a certain fact, an injury would not have occurred; but the injury must be an ordinary and natural consequence of the negligence. [citation omitted]. As Justice Cardozo has said, “[p]roof of negligence in the air, so to speak, will not do.” [citation omitted]. And “natural and probable consequences” are those which human foresight can anticipate because they happen so frequently they may be expected to recur.”

 For these reasons, the court concluded that the intervening events here were not “natural and probable”, and that if the court accepted the plaintiff’s argument, “virtually any accident happening after the removal of the defective pipe would be attributable to [the site designer and pipe manufacturer] –even a fatal collision involving the truck hauling the pipe to a disposal site. This overbroad conception of proximate cause is not consistent with Kansas jurisprudence.”

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 13, No.8 (Aug 2011).

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