New jury instruction revisions eliminate substantial factor

by Lee C. Swartz, Esq.

The Supreme Court Suggested Standard Jury Instructions Subcommittee - Civil recently released a two-volume set of the instructions containing many revisions and additions to the instructions themselves and the annotations.  Having been in existence for over 20 years and having been generally used by virtually every trial judge in the Pennsylvania state courts, there has been some confusion as to their status as an official document.  They are not approved by the Supreme Court per se and, as indicated, are suggested.  Nevertheless, many of them have been tested on a case-by-case basis by the appellate courts with the courts' approval in almost every instance.  Consequently, they have received the respect of the Pennsylvania judiciary. 

One of the most controversial subjects dealt with by the Instructions is the issue of substantial factor with respect to causation in tort cases.  This term was coined by the American Law Institute in its first edition of the Restatement of Torts and carried through in the Second Restatement � 431 is the definition of legal cause which requires that the actor's negligent conduct be "…a substantial factor in bringing about the harm. …"  Consequently, Sections 3.00, 3.03 and 3.25 of the Pennsylvania Instructions adopted this concept. 

Over the years, it became evident that the term "substantial factor" created a misunderstanding for many jurors.  The term "substantial" was considered to be greater than the instruction intended.  See Comment b, Restatement of Torts, Second, indicating that "…if the defendant's conduct had any effect, the effect was substantial." Unfortunately, this definition of substantial factor by the Restatement is not one that is commonly understood as the meaning of the term.  Various dictionary definitions have referred to the words "ample, considerable in quantity, significantly large, having strong substance, strong, stout" and other definitions leading to the conclusion that the term means something large or considerable in size or amount.  The proof has been evident in the many cases where a party was injured in a rear-end collision, and at trial his treating physician gave undisputed testimony that his injuries were caused by the accident but, nevertheless, while finding the defendant negligent, the jury made a specific finding that the negligence was not a substantial factor in bringing about the harm. 

As the courts continued to grapple with the definition of substantial factor, the American Law Institute met several years ago and began to draft Restatement of the Law of Torts 3d.  When it came to the sections on liability for physical harm, it took a hard look at the case law and the trial results in the application of the term and concluded that "The treatment of 'substantial factor' in both torts Restatements is confusing."  Restatement Torts, 3d, � 26, Comment J.  In their comment, the writers of the Restatement 3d observed that "With the sole exception of multiple sufficient causes, 'substantial factor' provides nothing of use in determining whether factual cause exists."  Consequently, the term legal cause was replaced with factual cause under the new � 26 of the Restatement, and a new definition was written requiring that

"An actor's tortious conduct must be a factual cause of another's physical harm for liability to be imposed.  Conduct is a factual cause of harm when the harm would not have occurred absent the conduct."

In effect, the new Restatement adopts the but for test which is so common in many areas of the law.  The process of the adoption of this new Restatement 3d is not fully complete.  At the May 2002 meeting of the American Law Institute, the preliminary vote on its adoption was unanimous.  The final vote will take place in May 2003, but it is not anticipated that any change will be made, given the strong support from the members of the American Law Institute at the first vote. 

At the meetings of the Civil Instructions Subcommittee over the past 1� years, the subject of substantial factor was thoroughly debated and much input was provided to the Subcommittee from lawyers and judges throughout the state.  No one came to the defense of the existing instruction, including the term "substantial factor" and after many efforts to refine its definition, the Subcommittee concluded that as long as the term "substantial factor" remained in the instruction, the chance for confusion by the jury was great.  As a member of the American Law Institute, I personally attended and voted on the revisions of the Restatement 3d, including those involving products liability. While revisions to the products law would appear to result in a more conservative interpretation of law from the plaintiff's standpoint (perhaps due to certain influences discussed in Clifford A. Rieders' summer 1998 Barrister article), the members who approved the product revisions, most of whom are corporate insurance and defense lawyers, had no problem in seeing the flaw in the "substantial factor" portions of the Restatement. 

Consequently, the new Standard Jury Instructions contain total revisions of Sections 3.00 "Issues in the Case and Factual Cause," 3.03 "Contributory Negligence," 3.03A "Comparative Negligence in Apportionment Among Joint Tortfeasors," and 3.25 which defines factual cause.  As the readers of the Suggested Standard Jury Instructions know, 3.03A has traditionally provided to the court jury interrogatories with respect to the findings of negligence and causation.  These interrogatories at 3.03A have been completely rewritten.  The jury will now be asked to determine whether the defendant's negligence was a "factual cause of any harm to the plaintiff."  The instruction indicates that "conduct is a factual cause of harm when the harm would not have occurred absent the conduct.  An act is a factual cause of an outcome if, in the absence of the act, the outcome would not have occurred."  Pennsylvania Suggested Standard Jury Instructions - Civil Section 3.25. 

The Standard Jury Instructions Subcommittee does not view this change in its instructions to be one of legal substance.  In fact, Pennsylvania appellate case law is replete with the use of the term "factual cause."  See annotations to the Subcommittee Note to the new instruction 3.00.  Rather, we view this as a clarification of what has been traditionally termed legal or proximate cause with both terms causing difficulty for lawyers and jurors.  It remains for the courts to determine whether to charge the new instructions.  However, I am told that at a recent meeting of some trial judges, the instructions received high grades. 

It is impossible to contain in this article the complete research of the Subcommittee, but much of it is set forth in the Subcommittee Notes to the instructions.  Consequently, it is necessary that a lawyer who practices in the tort field needs a copy of the instructions with annotations in order to remain competent in his or her profession.