MITCHELL v. GONZALES (1990)

OPINION ON REHEARING

Plaintiffs James and Joyce Mitchell (plaintiffs or the Mitchells), the parents of 12–year–old Damechie Mitchell, who drowned in Lake Gregory on July 4, 1985, sued defendants the County of San Bernardino, Jose Gonzales, Matilde Gonzales, and Luis P. (defendants) for damages on the premise that defendants' negligence had caused his death.   The jury rendered its verdict in the form of answers to interrogatories.   In response to the interrogatory, “Were any of the defendants negligent?”   The jury found that the individual defendants were negligent, but that the County was not.   In response to the interrogatory, “As to each defendant that you answered ‘yes' to in response to Question No. 1, was such negligence a proximate cause of death of Damechie Mitchell?” the jury found that none of the defendants' negligence was a proximate cause of the minor's death.

Plaintiffs have appealed from the judgment entered in favor of defendants following the rendition of judgment.   Because their appeal is taken only from the judgment in favor of the individual defendants, we have changed the caption of their appeal from James Mitchell, et al. v. County of San Bernardino County, et al. to James Mitchell, et al. v. Jose L. Gonzales, et al.

The issue presented by this appeal is whether the trial court committed prejudicial error when it refused to give BAJI No. 3.76, as requested by plaintiffs, and instead gave BAJI No. 3.75, as requested by defendants, both of which instructions are instructions on the issue of causation.

FACTS

The Mitchells and the Gonzaleses lived on the same block.   Damechie, 12 years old, 4′ 11″ tall, and 90 pounds, was a friend of the Gonzaleses' son, Luis P., 14 years old, 5′ 4″ tall, and 190 pounds.   Damechie's relationship with Luis was described as that of a tag-along little brother.

The Gonzales family invited Damechie to go with them to Lake Gregory for the Fourth of July.   At the time Mrs. Gonzales called Mrs. Mitchell to ask if Damechie could accompany them, according to the Mitchell testimony, Mrs. Mitchell told Mrs. Gonzales that Damechie could not swim.   Mrs. Gonzales suggested that the boys would play in the shallow edge of the lake.   The Mitchells conferred, and agreed that Damechie could go, provided Damechie were restricted to the edge of the lake.   Mrs. Gonzales, in her testimony, denied that she had told Mrs. Mitchell the children would be swimming, and denied that Mrs. Mitchell told her that Damechie did not know how to swim.

On the evening of July third, Luis went to the Mitchells' home to help Damechie pack.   Mrs. Mitchell testified that Damechie, Luis, and Luis's sister, Y., talked about swimming;  that she told them that Damechie could not swim and was not to go swimming;  and that Luis and Y. said that they would watch Damechie.   Luis testified that Mrs. Mitchell did not tell him that Damechie could not swim.   He did remember that they had told her that they were going to go swimming, but he could not recall what she said about it.   He did recall that she told him to watch out for Damechie because he was bigger and older than Damechie.

Damechie spent the night at the Gonzaleses' home, and the next morning Mr. and Mrs. Gonzales and the three children drove to the lake, where they were joined by their friends, Mr. and Mrs. Reyes and the Reyes' young children.

Luis asked his parents for money with which to rent a paddleboard.   Mrs. Gonzales told Luis that she did not want him to go into water over his head, an admonition she made every time they went to the beach.   Both Luis and Y. knew how to swim.

During the morning, the three children played on two paddleboards they had rented.   When the county employee in charge of the paddleboard rentals asked them if they knew how to swim, they each said yes.   During the morning, they stayed within 30 feet of the shore, not venturing into a depth of water that was over their heads.   The Gonzales did not watch them during some of the time they were in the water.

Mrs. Gonzales testified that if she had known that the children were venturing into deep water, she probably would not have allowed it because it was dangerous.   She also testified that it was difficult for her to watch the children in the water, and that there was a long period of time when she did not have them in sight.   Although she assumed that Luis would obey her and not go into deep water, she acknowledged that he had disobeyed her on other occasions.

Mr. Gonzales testified that he relied on the lifeguards to watch the children.   He also testified that he did not know whether Damechie could swim, and had never asked him whether he could or not.

After lunch, Mrs. Gonzales accompanied Mrs. Reyes to the restroom, and told the three children not to leave until she returned.   However, they left and rented one paddleboard.

When Mrs. Gonzales returned about 15 minutes later, she found Mr. Gonzales asleep and the children gone.   She did not know where they had gone, and she did not ask Mr. Reyes, who was awake and at their picnic site, if he knew where the children had gone.

Meanwhile, the children had gone down to the water, and together had crossed the lake once, using a single paddleboard.   Then, when Luis started to push Damechie and his sister back across the lake on the paddleboard, Damechie told Luis that he could not swim.

Nonetheless, Luis pushed the paddleboard with Y. and Damechie on it 100 feet out onto the lake, into water which was over their heads.   He then told Damechie to let him get on the board because he was tired.   Damechie again told Luis that he could not swim and asked him to be careful.   Luis promised he would be careful.   After Luis got onto the paddleboard, Damechie asked Luis if Luis would save him if he fell off, and Luis said he would.

At this point, the children were about five to ten feet away from three adult women.   Each of these women testified that the children made a lot of noise and splashed for several minutes while engaging in horseplay.   They agreed that Luis was the rowdiest of the three children, and that he was making the most noise and using foul language.

One of the women testified that the paddleboard tipped over and that the noise and roughhousing stopped for five to ten minutes.   Immediately before the board tipped over, Luis was on the center of the board and Damechie and Y. were draped over it.   During this quiet period, neither Luis nor Y. called or gestured for help, but they did engage in some whispering.

The second woman testified that the period of quiet lasted from one to five minutes, during which time she glanced over her shoulder and saw only Luis and Y. on the board.   She did not hear any cries for help.

The third woman estimated that about three minutes of quiet elapsed before she noticed that only two children were on the board were there had once been three.   She, too, never heard anyone call out for help.

According to the women, after they had finally noticed that one of the children was missing, Luis said, “Lady, my friend's down there,” indicating the lake.   One of the women yelled for a lifeguard, and asked Luis why he hadn't signalled for help sooner.   He replied, rather irrelevantly, that neither he nor his sister could swim.   He also told her that Damechie had grabbed onto him trying to save himself, and that he, Luis, had kicked him to get him off and avoid being pulled under.

Luis testified that the paddleboard tipped over when Damechie put his hands on Luis's shoulder.   He also admitted that he had been rocking the board before it tipped over, and that Damechie's movement had not caused the board to tip.   The county employee who was in charge of renting paddleboards testified that “You have to work at it,” to get a board to tip over.   Y. testified that the board flipped over when Luis attempted to climb onto it.

Luis also testified that Damechie was very scared while the board was rocking, and that he asked Luis not to rock the board because he didn't want to fall off.   Luis admitted that at this time he was being very rowdy.   He also admitted that when he tipped the board over, Damechie fell off, panicked, and grabbed Luis's shorts, pulling them down.   Luis pulled his shorts up, and Damechie grabbed his ankles.   Luis shook loose of Damechie's grasp, got to the surface of the lake, and climbed onto the board.   He stated that he looked into the water and could see Damechie's fingers, which he tried unsuccessfully to grab.   Y., meanwhile, had remained on the board.   Luis also testified both that he waited two or three minutes before calling for a lifeguard and that he immediately called for a lifeguard.

Later that day, Luis told the lifeguards that Damechie had rocked the board and caused it to flip over.   He also asked them whether he and his family would be sued.   Mrs. Gonzalez told Luis, “Why didn't you stay where I told you to stay?”

Damechie's body was not recovered for several days because of the opacity of the water and bottom vegetation.   His body was found about 120 feet from the shore in eight feet of water.

The Mitchells sued the County of San Bernardino, which operated the paddleboard rental business, Mr. and Mrs. Gonzales, Luis, and Michael O'Leary, who apparently was the lifeguard on duty at the time of the drowning.   O'Leary was later voluntarily dismissed from the case by the Mitchells.

The complaint contained causes of action for negligence, premises liability, and wrongful death.   The defendants raised contributory negligence on the part of Damechie and his parents as a defense.

The jury found that Mr. and Mrs. Gonzales and Luis were negligent, but also found that such negligence was not the proximate cause of Damechie's death, and thus never reached the interrogatories related to Damechie and his parents' contributory negligence, if any.

Plaintiffs, whose instruction on causation had been refused, moved for a new trial or a judgment notwithstanding the verdict on the grounds that:

(1) the evidence was insufficient to justify the verdict;

(2) the verdict was against the law;  and

(3) there was an error in law, occurring at trial and excepted to by the moving party, that error being that the jury had been improperly instructed on the issue of causation.

Both motions were denied.   Although the trial court described the verdict as “a little unusual” and as “an uncommon type of a result from a jury,” it nonetheless concluded the verdict should be upheld because “I surmise that the jury felt that what [the defendants] did with relation to the young black boy was what any normal family would have done under the circumstances,” “[a]nd that they were exercising reasonable care under all the circumstances so far as the boy was concerned, knowing what they know.”   The trial court also noted, in denying the motions, that “the jury could well feel that the amount of supervision given, considering the fact that they were at a place that was a well run, well supervised swimming area, public swimming area, was perfectly adequate.”

As pointed out by plaintiffs, it is apparent from these statements that the trial court, in denying the motions, was operating under the misapprehension that the jury had found the defendants not negligent, when, in fact, the jury had found the defendants were negligent, but had found that their negligence was not the proximate cause of Damechie's death.

In pursuing this appeal, plaintiffs contend that the trial court committed prejudicial error in refusing to instruct the jury properly on the issue of causation, and that it also erred, when it denied the post-trial motions, by concluding that there was a reasonable basis in the evidence to support the jury's verdict.

DISCUSSION

The Applicable Standard of Review

 We first consider the standard of review applicable when the error asserted is that the trial court refused to give an applicable jury instruction.

“ ‘It is true that in determining whether or not a verdict is supported by the evidence, we must assume that the jury accepted the view most favorable to the respondent.   However, in determining whether or not the instructions given are correct, we must assume [in contrast] that the jury might have believed the evidence upon which the instruction favorable to the losing party was predicated, and that if the correct instruction had been given upon that subject the jury might have rendered a verdict in favor of the losing party.’  [Citations.]”  (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 674, 117 Cal.Rptr. 1, 527 P.2d 353, quoting O'Meara v. Swortfiguer (1923) 191 Cal. 12, 15, 214 P. 975, emphasis added.   See also Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d 479, 489–490, 227 Cal.Rptr. 465 to the same effect.)

Therefore, in determining (1) whether the instruction requested by plaintiffs was a “correct” instruction and (2) whether plaintiffs also were prejudiced by the failure to give their requested instruction on causation, we must consider the evidence most favorable to plaintiffs, as the losing parties, which evidence was set out above.   We also must assume that the jury might have believed the evidence upon which that instruction was predicated, i.e., the evidence that Damechie's death was caused by a combination of factors, and that defendants' negligence was a substantial factor in bringing about his drowning.   This rule seems particularly applicable here, given that the jury did find that defendants were negligent, and that the requested but refused instruction stressed the fact that a legal cause of injury need only be a substantial factor, rather than one particular factor without which the injury would not have occurred.

The Alleged Instructional Errors

Having thus considered the applicable standard of review on appeal, we now turn to the particular instructions of which plaintiffs complain.

BAJI No. 3.75, requested by defendants and given by the trial court, reads as follows:

“A proximate cause of injury is a cause which, in natural and continuous sequence, produces the injury and without which the injury would not have occurred.”  (Emphasis added.)   This instruction offers a “but for” test of causation.

BAJI No. 3.76, requested by plaintiffs and refused by the trial court, reads as follows:

“A legal cause of injury is a cause which is a substantial factor in bringing about the injury.”  (Emphasis added.)   This instruction offers a “substantial factor” test of causation.

BAJI No. 3.77, requested by both sides and given by the trial court, reads as follows:

“There may be more than one proximate cause of an injury.   When negligent conduct of two or more persons contributes concurrently as proximate causes of an injury, the conduct of each of said persons is a proximate cause of the injury regardless of the extent to which each contributes to the injury.   A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury.   It is no defense that the negligent conduct of a person not joined as a party was also a proximate cause of the injury.”

Plaintiffs urge that BAJI No. 3.75, the “but for” instruction, is confusing when given in cases in which the evidence shows the possibility of multiple, independent causes of injury, and argue that it is apparent, from the result reached by the jury in regard to the question of negligence, and from the evidence produced at trial on the events leading up to Damechie's death, that the jury was in fact confused by BAJI No. 3.75, and prejudicially so, when it came time to determine the proximate cause of the death.

We think, however, that the real source of confusion here was that the evidence showed the possibility of multiple concurring causes of injury, and that in this situation the use of the “but for” instruction, rather than the “substantial factor” instruction, misled the jury into believing that it had to look for a single proximate cause of Damechie's death, and that it could not consider that the death might have been the result of multiple concurring causes.

The Factors Considered to Determine Whether Instructional Error was Prejudicial So as to Require Reversal

 In deciding whether a particular jury instruction misled the jury, and whether its misleading effect “resulted in a miscarriage of justice” (Cal.Const., art. VI, § 13), i.e., whether the erroneous instruction was so prejudicial as to require reversal, we are required to review all circumstances of the case, including the evidence and the other instructions given.   (Maupin v. Widling (1987) 192 Cal.App.3d 568, 572–573, 237 Cal.Rptr. 521.)   However, there are no precise formulas to follow.  (Henderson v. Harnischfeger Corp., supra, 12 Cal.3d 663, 670–671, 117 Cal.Rptr. 1, 527 P.2d 353.)   The factors to be considered include the degree of conflict in the evidence on the critical issues;  whether respondent's arguments to the jury may have contributed to the misleading effect;  whether the jury requested a rereading of the instructions;  the closeness of the jury's verdict;  and the effect of other instructions in remedying the error.  (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876, 148 Cal.Rptr. 355, 582 P.2d 946.)   If, after consideration of such factors, and such other factors as may be relevant in a particular case, there is a probability that an error in instruction misled the jury, and that the correct instruction might have resulted in a verdict more favorable to the appellant, the judgment should be reversed.  (Henderson v. Harnischfeger Corp., supra, 12 Cal.3d 663, 673–674, 117 Cal.Rptr. 1, 527 P.2d 353;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

We first consider whether the giving of BAJI 3.75 was erroneous, i.e., whether, under the facts of this case, it may have misled the jury.   We shall then consider whether, if it was indeed misleading, the error was prejudicial so as to require reversal, i.e., whether, in the absence of the error, a result more favorable to plaintiffs would probably have occurred.

The Phrase “Proximate” Cause, as Used in BAJI 3.75, Is Generally Considered Confusing to Jurors

 Here, the instructional error alleged to have occurred arises entirely out of the thorny thicket of proximate cause.   As Justice Tobriner once wrote, “[t]he concept of proximate causation has given courts and commentators consummate difficulty and has in truth defied precise definition.”  (State Comp. Ins. Fund v. Ind. Acc. Com. (1959) 176 Cal.App.2d 10, 20, 1 Cal.Rptr. 73.)   In Akers v. Kelley Co. (1985) 173 Cal.App.3d 633, 658, 219 Cal.Rptr. 513, the Sixth District observed that “It is difficult to concentrate on the topic of proximate cause for an hour or two, let alone for four full days,” (fn. omitted), and in Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, 642, 105 Cal.Rptr. 890, criticized on another point in Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624, 641–642, 147 Cal.Rptr. 486, 581 P.2d 197, the reviewing court lamented the fact that it found itself “deep in the labyrinth of causation, where passage of time almost inevitably brings its concomitant of multiple cause and multiple effect.”

Courts and commentators are not the only groups perplexed by “proximate cause.”   Jurors, too, have problems with the definition, often for more than one reason.   Several of the reasons for juror confusion are discussed below.

One reason for the confusion surrounding proximate cause, at least for laypersons, stems from the similarity between the terms “proximate” and “approximate.”   As noted in the comment to BAJI No. 3.75:

“The confusion between ‘proximate’ and ‘approximate’ to the average juror is well known.   What trial judge has not received a request from the jury to re-read the instruction on ‘approximate cause’?   Even the Supreme Court recognized this confusion in saying:  ‘In common parlance, the two words “proximate” and “approximate” are used interchangeably and the dictionaries give them as synonyms.   It is true, however, that the word “proximate” has a distinct and separate legal significance.’  (State Compensation Ins. Fund v. Jorn (1921) 186 Cal. 782, 785 [200 P. 624]․)”

Another source of confusion may be that “proximate” is an adjective with spatial connotations.   According to the American Heritage Dictionary of the English Language (1969) page 1054, column a, “proximate” means “1. Closely related in space, time, or order;  nearest;  next,” as well as “2. Approximate.”   In fact, the comment to BAJI No. 3.75 quotes Prosser's opinion that “proximate” is an “ ‘unfortunate word, which places an entirely wrong emphasis upon the factor of physical or mechanical closeness.’ ”  (See also Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 346, 160 Cal.Rptr. 246:  “BAJI instruction No. 3.76 is derived from the Restatement Second of Torts, section 431, which was a response to the substantial debate over ‘causation’ and the criticism of the traditional reference to ‘proximate’ cause in jury instructions.   Such authoritative commentators as Prosser prefer the ‘substantial factor’ language in BAJI No. 3.76 as probably the most intelligible definition of legal causation that can be fashioned for jury understanding.   The word ‘proximate,’ it is felt, confuses juries by placing undue emphasis on ‘nearness.’  (See, generally, Prosser on Torts (4th ed. 1971) Proximate Cause, §§ 41–42, pp. 236–250.)”)

Finally, BAJI No. 3.75 has been criticized as being confusing not only because of its use of the term “proximate cause,” but because it also instructs the jury that “proximate cause” is that “which, in natural and continuous sequence, produces injury․”  (Emphasis added.)   Such a phrase, especially when combined with the spatial connotations of the term “proximate,” may, in some factual settings, lead a jury to conclude that causation requires an unbroken physical chain of conduct.  (See Maupin v. Widling, supra, 192 Cal.App.3d 568, 575, 237 Cal.Rptr. 521.)

As discussed above, under the circumstances of this case, the “but for” instruction very probably misled the jury into believing that it had to look for a single factor as the proximate cause of Damechie's death, and that such factor had to be physically close to the injury and connected to the injury in “an unbroken physical chain of conduct.”   For these reasons, we conclude that the trial court erred by giving BAJI 3.75 as the operative instruction on causation.

 We next consider whether such error was prejudicial, i.e., whether the jury probably would have reached a different result in the absence of such error, by reviewing the five factors set out inLeMons v. Regents of University of California, supra, 21 Cal.3d 869, 876, 148 Cal.Rptr. 355, 582 P.2d 946.

The Prejudicial Effect of the Erroneous Instruction

1) The Degree of Conflict on the Evidence of Causation

Here, the evidence was uncontradicted that Damechie drowned not only because he could not swim, but also because he was placed in a position in which his inability to swim became the ultimate cause of his death.   There was also evidence, which we must assume ¹ the jury would have believed, given the applicable standard of review on appeal, that (1) the Gonzaleses were at least partially responsible for having placed him in this position because, with knowledge that he could not swim, they did not watch him and prevent him from going into deep water, and (2) Luis was at least partially responsible for having placed him in this position because, with knowledge of Damechie's inability to swim, nonetheless assured Damechie he would be careful, pushed the paddleboard into deep water, climbed onto it, flipped it over, kicked away the drowning Damechie, and then failed to promptly call for help, when there were several adults nearby who might have been able to intervene if they had been called upon in time.

2) Whether the Jury Asked for a Rereading of Any Instructions or Evidence

The jury here did not request a rereading of evidence or instructions.   However, it had been given a copy of the instructions, so it would have had no reason to ask for a rereading of any instruction.   The fact that it did not ask for a rereading of evidence related to causation is, if anything, a reflection on the fact that there was no significant conflict in the evidence related to causation.

3) The Closeness of the Verdict On the Issue of Proximate Cause

The jury was unanimous in finding no proximate cause as to Luis and Mr. Gonzales, and split 10 to 2 as to Mrs. Gonzales, despite the fact that they returned a special verdict finding all three defendants negligent.   Thus, one can infer from the high degree of agreement on the issue of causation plus the finding of negligence, that the jury did follow the erroneous “but for” “proximate” cause instruction, and that its adherence to the requirements of the instruction was prejudicial to plaintiffs.

Once the jury found Luis was negligent, it is impossible to conceive how it could then find that his negligence was not a legal cause of Damechie's death, unless, indeed, it was confused by the instructions.   Working backwards from the apparently inconsistent result the jury reached on the issue of causation, and using the instructions which the jury was attempting to apply as a map of the route it followed to reach the result it reached, it seems more probable than not that the jury must have reasoned, on the basis of the “but for” instruction, No. 3.75, that despite Luis's negligence, Damechie would not have drowned but for the fact that he could not swim.

4) The Effect of Counsels' Arguments

In his closing argument, defense counsel emphasized over and over that Damechie couldn't swim, and knew he couldn't swim, yet he went out on the lake.   He also emphasized that Damechie's parents knew he couldn't swim, and yet let him go with the Gonzaleses without finding out whether they intended to take the children swimming (a point on which the evidence was in conflict), and argued that “but for” these facts, Damechie would not have drowned:

“Ladies and gentlemen of the jury, Damechie Mitchell, a mature, responsible young man, knew better than to go out on the lake.

“And yet he did.

“Mr. and Mrs. Mitchell knew it was dangerous to send their son on a swimming trip under any circumstances, and yet they did.

“Mr. and Mrs. Mitchell carelessly sent Damechie on a trip with Mr. and Mrs. Gonzalez [sic] whom they had never met.

“Without knowing where Damechie was actually going.

“Unfortunately, Mr. and Mrs. Mitchell didn't take the time to find out where their son was going.

“If they had taken the time, Damechie would still be alive.”  (Emphasis added.)

“And he [plaintiffs' attorney] also said that, you know, it would have been very, very easy to have prevented this accident by finding out where Damechie was going.

“You know, that had they—had Mr. Mitchell learned that his son was going to a lake, he would not have permitted [it].   He couldn't swim.   It was too dangerous.

“Would be easy if the proper inquiries had been made.   Spent a little more time discussing the trip, for Mrs. Mitchell to have realized that they are going to a trip for the purpose of swimming and better tell her he can't swim or not let him go.

“That's an easy way to prevent—to have prevented this unfortunate accident.”  (Emphasis added.)

Although plaintiffs' counsel attempted, in argument, to focus the jury on the possibility of multiple legal causes, the jury had not been instructed that a proximate cause, or legal cause, need only have been a substantial factor in causing Damechie's death.   Thus, the jury was not likely to follow the plaintiffs' argument, never having been instructed on it.²  It is therefore clearly probable that this closing argument contributed to the misleading effect of giving a “but for” instruction rather than the “substantial factor” instruction.

5) The Effect of Other Instructions Given

 Defendants urge that any possible confusion caused by the giving of the “but for” instruction was cured because the trial court also gave an instruction on concurring causes.   The problem with this argument is that in this particular case, the giving of the concurring cause instruction might well have exacerbated the jury's confusion by emphasizing the spatial connotation of the term “proximate cause” in the “but for” instruction, as explained below.

BAJI No. 3.75, the “but for” instruction given by the trial court, reads as follows:

“A proximate cause of injury is a cause which, in natural and continuous sequence, produces the injury and without which the injury would not have occurred.”

BAJI No. 3.77, the “concurring cause” instruction given by the trial court, reads as follows:

“There may be more than one proximate cause of an injury.   When negligent conduct of two or more persons contributes concurrently as proximate causes of an injury, the conduct of each of said persons is a proximate cause of the injury regardless of the extent to which each contributes to the injury.   A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury.   It is no defense that the negligent conduct of a person not joined as a party was also a proximate cause of the injury.”  (Emphasis added.)

As noted above, BAJI No. 3.75 has been criticized by many authorities because of its emphasis on physical or mechanical closeness, as well as because of its use of the phrase “natural and continuous sequence,” which may lead a jury to believe that the injury must have been caused by an unbroken physical chain of conduct.   BAJI No. 3.77 exacerbates this emphasis by instructing the jury that although there can be more than one proximate cause of an injury, and that such multiple causes of injury are then deemed concurrent causes, a concurrent cause must be one which is operating at the moment of injury.

The other problem with defendants' argument that the giving of BAJI 3.77 cured any problem created by the giving of BAJI 3.75 is that 3.77 simply instructed the jury that there could be more than one cause, but did not define “proximate cause” in terms which negated the spatial implications of 3.75.

Thus, rather than curing any misapprehension created by BAJI No. 3.75, BAJI No. 3.77 more probably than not led the jury to reason that the “proximate” cause of Damechie's death was the cause “closest” in time and physical proximity to his death, and that the cause “closest” to his death was his own inability to swim, as opposed to Luis's earlier-in-time and more distant-in-location capsizing of the paddleboard, which conduct was not operating “at the moment” of injury.

Defendants' Remaining Arguments That BAJI 3.75 Was the Proper Instruction to Give in This Case

Although no further discussion is necessary to support our decision, we believe it worthwhile to discuss two further arguments made by defendants.

1) The Trial Court's Discretion To Choose Either BAJI 3.75 or 3.76

The first of these arguments was made in defendants' brief, where they urged that a trial court has the discretion to choose either 3.75 or 3.76 (citing Fraijo v. Hartland Hospital, supra, 99 Cal.App.3d 331, 160 Cal.Rptr. 246), and that the substantial factor test, No. 3.76, is not always appropriate simply because there are possible concurring causes (citing Vecchione v. Carlin (1980) 111 Cal.App.3d 351, 359, 168 Cal.Rptr. 571).   Both of these propositions are true in principle, but they must be qualified by the further propositions that (1) a judge abuses his or her discretion by giving either instruction in a case whose facts do not lend themselves to such instruction, or in which such instruction will be more confusing than the instruction which the judge has rejected, and (2) just because the substantial factor test is not always appropriate simply because there are possibly concurring causes does not mean that the converse is true, i.e., it does not mean that it is never appropriate when there are possibly concurring causes.

2) The “Paint–Can” Theory of Causation

The second of these arguments was made by counsel at oral argument.   According to defense counsel, the facts of this case can be represented by the following equation:  Damechie's negligence equals a can of blue paint.   Defendants' negligence equals a can of yellow paint.   Damechie's death equals a can of green paint.   Also according to defense counsel, “but for” Damechie's negligence, he would not have drowned:  without the yellow can of paint, you can never make green paint.   This argument was apparently an illustration of defendants' position that the “but for” instruction was perfectly adequate and did not confuse the jury.

The problem with this argument is so patent that we can only suppose that plaintiffs' counsel's reticence concerning it during his reply was a calculated form of emphasis analogous to the proverbial “damning with faint praise.”   We shall not be so reticent.

Just as one cannot make green without yellow, so one also cannot make green without blue.   Because both factors (yellow and blue) are necessary to produce the result (green), the “but for” test, while accurate when used in two separate equations ((1) you cannot have green “but for” blue, and (2) you cannot have green “but for” yellow), will not adequately explain the result (green) if one is being asked to consider the actual process by which green is produced.   When the question is, “How was this green paint produced?” one must be instructed to consider all the factors involved, rather than being instructed to consider whether green can be produced “but for” a factor.

CONCLUSION

Based on (1) the lack of significant conflict in the evidence on the cause of Damechie's drowning, (2) the apparent conflict between the finding of negligence but no causation (which conflict even the trial court had to unconsciously resolve by forgetting that the jury had found the defendants negligent), and (3) the exacerbating effect, in this factual setting, of the language in BAJI No. 3.77 on the confusing language in No. 3.75, we hold that the trial court erred when it chose BAJI No. 3.75, rather than No. 3.76, as the proper instruction for this particular case.   We also hold that this error was prejudicial, resulting in a miscarriage of justice of state constitutional proportions, because it is reasonably probable, given the same factors noted above, that a result more favorable to plaintiffs would have ensued if the substantial factor instruction had been given.   It therefore follows that the judgment must be reversed.

DISPOSITION

The judgment in favor of Luis P. and the Gonzaleses is reversed.

FOOTNOTES

FOOTNOTE.  

1.   In this case we need not even assume that the jury would have believed this evidence;  the jury found that Luis was negligent, and that Mr. and Mrs. Gonzales were also negligent, presumably based on the evidence noted above.

2.   When a proper instruction has been refused, and the refusal to instruct operates to withdraw from the jury's consideration a possible theory of liability or a defense, it is not necessary to apply the five-factor test set out in LeMons, supra.   Instead, “[I]t is inherently prejudicial for a trial court to refuse to give instructions covering each party's theories of the case which are supported by substantial evidence.”  (Ng v. Hudson (1977) 75 Cal.App.3d 250, 261, 142 Cal.Rptr. 69, emphasis added, relying on Phillips v. G.L. Truman Excavation Co. (1961) 55 Cal.2d 801, 808, 13 Cal.Rptr. 401, 362 P.2d 33.   See also Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548, 138 Cal.Rptr. 705, 564 P.2d 857.)The situation here, though it does not involve the failure to instruct on a theory of liability or a defense in the strict sense of those terms, is analogous to cases involving such a failure, in that the jury was not instructed, despite plaintiffs' request, on a theory of causation which was supported by substantial evidence.

McDANIEL, Associate Justice, Assigned.* FN* Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

HOLLENHORST, Acting P.J., and DABNEY, J., concur.