11 Mar Virginia: Wrongful Death – a Lawyer’s Instruction
Instruction and evidence re multiple proximate cause is the third issue Mr. Waterman authored in the Reply Brief Amicus Curiae of Virginia Trial Lawyers Association in Support of Appellants in Harman v. Honeywell, Virginia Supreme Court No. 130627. The underlying consolidated Chesterfield lawsuits in Harman alleged product liability of the private airplane component manufacturer for the wrongful deaths of a son and his father, the pilot and his lone passenger who crashed shortly after takeoff.
Virginia law holds there may be “more than one proximate cause of an event”. Holmes v. Levine, 273 Va. 150, 159 (2007). In product liability cases, for example, under Virginia law the manufacturer is liable if its product simply is “a” proximate cause: “our law provides a means of holding a defendant liable if his or her negligence is one of multiple concurrent causes which proximately caused an injury, when any of the multiple causes would have each have been a sufficient cause.” Ford Motor Co. v. Boomer, 285 Va. 141, 151 (2013).
Hence, Virginia Model Jury Instruction 5.000’s amendment effective December, 2013, added the following sentence: “There may be more than one proximate cause of an accident, injury, or damage.” (emphasis added). Citing Holmes, its “ALERTS” emphasizes: “Where the evidence in a case shows the possibility of more than one proximate cause of an accident, injury, or damage, the final [new] sentence of Instruction should be given to fully and fairly explain the principle of proximate cause to the jury.” Id. (emphasis added).
“A litigant is entitled to jury instructions supporting his or her theory of the case if sufficient evidence is introduced to support that theory and if the instructions correctly state the law.” Holmes, 273 Va. at, 159. Significantly, the evidence introduced to support a requested instruction must only be “more than a scintilla;” and where “a proffered instruction finds any support in credible evidence, its refusal is reversible error.” Id. (emphasis added).
In Holmes, there were two potential proximate causes of death. Id. at 159. Despite its verdict form specifically stating the jury “did not find that [Defendant’s] failure was a proximate cause of Holmes death,” Holmes reversed and remanded for the trial court refusing Plaintiff’s following proximate cause instruction, which is virtually identical to Administrators’ first underlined sentence that was rejected: “There may be more than one proximate cause of an event.” 273 Va. at 157-160 (emphasis added).
In Holmes, Plaintiff’s own evidence happened to show both potential causes of death. Id. But it is not necessary that only Plaintiff’s case-in-chief prove all proximate causes, and Holmes did not so hold.
Instead, the jury fairly may find more than one proximate cause based on the evidence as a whole: Plaintiff’s evidence, Defendant’s evidence, or both parties’ evidence. McClung v. Commonwealth, 215 Va. 654, 657 (1975). “When reviewing a trial court’s refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction.” Lawlor v. Commonwealth, 285 Va. 187, 228-229 (2013).
In McClung, the murder Defendant steadfastly maintained that she was “not guilty” by reason of self-defense, but was convicted of murder in the second degree. Id. at 654. However, this Court reversed and remanded in McClung when the trial court refused Defendant’s request for a “voluntary manslaughter” instruction on the grounds that “the [whole] evidence was also sufficient to support an instruction on voluntary manslaughter” (if viewed most favorably to her), even though it concededly was sufficient to support murder in the second degree (when viewed most favorably for Commonwealth). Id. at 656-657.