Phan Son Van v. Pena

Supreme Court of Texas · Torts

Tortsproximate causesuperseding causeforeseeabilityintervening criminal actssummary judgmentproximate causesuperseding cause

Facts

For summary judgment purposes, the parties assumed that Phan negligently sold alcohol to underage gang members. After drinking beer, the gang members went to a wooded area near railroad tracks for a gang initiation, remained there for about thirty minutes after a fight, and were described by one witness as "hyper and drunk," "worked up," and "out of control." Two girls happened upon the scene while walking home, and six gang members attacked, sexually assaulted, and murdered them. Phan's summary judgment evidence included autopsy reports, indictments, convictions, and criminal-trial testimony showing the nature of the crimes.

Issue

When a defendant seeks traditional summary judgment by arguing that third-party intentional criminal acts were a superseding cause, how is the burden on foreseeability allocated? Specifically, did Phan conclusively negate proximate cause by establishing that the gang members’ crimes were unforeseeable superseding causes of the victims’ deaths?

Rule

Under the traditional summary judgment standard, a defendant seeking to negate foreseeability must prove more than that intervening third-party criminal conduct occurred; the defendant must prove that the conduct was not foreseeable. When the defendant presents evidence that the plaintiff’s injuries resulted from intervening criminal conduct rising to the level of a superseding cause based on considerations like those in Restatement (Second) of Torts § 442, the defendant has negated the ordinary foreseeability element of proximate cause, and the burden shifts to the plaintiff to raise a fact issue with controverting evidence that the criminal conduct was foreseeable.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In San Antonio, Mesa Corner Market allegedly sold liquor to two seventeen-year-olds in violation of state law. Three hours later, after leaving the store, going to a warehouse district, and arguing with a stranger, one of the teens intentionally stabbed the stranger to death. The store moves for traditional summary judgment and submits undisputed criminal records, trial testimony, and conviction documents showing the deliberate killing; the plaintiff offers no evidence about anything visible or known at the time of sale.

Should the court grant the store's motion on proximate cause?

Explanation. Under the majority rule, a defendant seeking traditional summary judgment must do more than show intervening criminal conduct occurred; it must prove the conduct was not foreseeable. If the defendant's evidence shows the later crime rises to a superseding cause under considerations like Restatement § 442—different in kind, extraordinary, independent, wrongful, and highly culpable—the defendant negates ordinary foreseeability and the burden shifts to the plaintiff. With no controverting evidence showing foreseeability at the time of sale, summary judgment is proper. (Derived from Phan Son Van v. Pena (n.d.).)