Plaintiffs Marvin Fish and Francine R. Fish appeal from a judgment in favor of defendants Los Angeles Dodgers Baseball Club and Glen E. Jones, M.D., upon a jury verdict. The complaint was for damages for the wrongful death of plaintiffs' 14-year-old son, Alan, who died following his being struck by a line-drive foul while watching a Dodger baseball game. Originally, other defendants were named,
Inasmuch as plaintiffs were denied instructions requested by them relating to their theory of the case, we must view the evidence in the light most favorable to their contentions.
"Each party is entitled to have his theory of the case submitted to the jury in accordance with the pleadings and proof (Cole v. Ridings, 95 Cal.App.2d 136, 144 [212 P.2d 597]), and it is incumbent upon the trial court to instruct on all vital issues involved (Jaeger v. Chapman, 95 Cal.App.2d 520, 525 [213 P.2d 404]). Viewing the evidence in the light `most favorable to the contention that the [last clear chance] doctrine is applicable ... since plaintiff is entitled to an instruction thereon if the
Accordingly, we state as facts the version most favorable to plaintiff, though there was substantial conflicting evidence on many vital issues.
The Injury, Treatment and Death of Decedent
Plaintiffs' decedent was struck behind and above the left ear by a hard-hit line-drive foul, at approximately 7:45 p.m., on the evening of May 16, 1970. His adult companion observed that the boy remained slumped forward with his chin on his chest, "out like a light," for approximately one minute. Then he stretched and groaned and commenced speaking in an unintelligible fashion. This was followed by a period during which he stuttered and was unable to speak without long pauses between words. An ice pack, furnished by someone inside the visitors' dugout, was applied to the boy's head. A short while later an usher came and returned with two ambulance attendants. By this time, decedent's condition was somewhat improved, and his speech was normal.
The ambulance attendants escorted decedent to the ball park emergency first aid station. On the way he manifested some loss of balance, "as if he was intoxicated," but by the time he arrived, "he seemed to be walking quite normal." Dr. Jones, who was seated in the press box at the time the foul ball was hit, saw it enter the stands, thought it was a hard-hit ball, and observed that it had struck someone. He, therefore, returned to the first aid station. He arrived there shortly before decedent. Upon decedent's arrival, Dr. Jones was informed that decedent had been hit in the head by a foul ball. He took decedent's pulse, felt the left side of his head, and examined the site where the ball had hit. Thereupon, with a flashlight, he examined decedent's eyes, ears and throat and he also tested decedent's reflexes with his hand. Dr. Jones did not take decedent's blood pressure nor did he inquire as to the manner in which decedent had reacted after being hit; that is, Dr. Jones did not ask whether decedent had been rendered unconscious or dazed, nor did he inquire into decedent's ability to speak or walk in the period immediately following the accident. Decedent was kept in the first aid room for a
Decedent and his adult companion returned to their seats and watched the rest of the game. In the course of the remaining six innings, decedent chased another foul ball and went to the concession stand to purchase food. During this period, his speech and physical movements appeared normal. The game ended at about 10 p.m., but decedent stayed for an additional 10 minutes. During this interval, decedent proceeded to the roof of the Dodger dugout and leaned down, attempting to get someone's attention. On the way out to the camper in which decedent had been brought to the game, he grabbed his adult companion's arm, and commenced crying and shaking. His speech disability reappeared and he had to be helped to the camper where he lay down while being driven home, a drive which took approximately 40 minutes.
Upon decedent's arrival at home, plaintiffs were advised of the incident. They promptly took decedent to Citizens Emergency Hospital where they were advised that medical attention would not be available for about an hour. At this time decedent was pale and limp and "appeared to have little control of his muscular part of his body."
Plaintiffs then drove to Cedars-Sinai Medical Center, which took somewhat less than half an hour. Upon arrival at Cedars, decedent was wheeled into the reception area in a wheel chair. He was slumped in the chair with his head down. At the reception desk, he vomited. Plaintiffs were advised that the hospital could not give the boy medical attention. He was then driven to Childrens Hospital, some two to four blocks distant. Decedent was admitted to the emergency clinic at Childrens Hospital at about 11:50 p.m. Decedent was treated in the emergency clinic until 1:30 a.m., May 17, when he was transferred to a holding ward, a unit which provides treatment less intensive than that of an intensive care unit but more intense than a regular ward. At approximately 2:30 a.m., the presence of Dr. Johnson, a neurosurgeon, was procured. He examined decedent and undertook his care. At 3:15 a.m., decedent was placed in a regular ward, and a drug for the control of cerebral edema was administered. At 5 a.m., decedent was again seen by Dr. Johnson who noted he was "becoming more alert" and made no change in the treatment. By 10 a.m., when Dr. Johnson again examined
An autopsy was conducted. It revealed that when decedent was struck by the baseball, he suffered a hairline fracture of the outer plane of his skull and a depressed fracture of the inner plane, portions of which protruded through the covering membrane and into the brain tissue. A small artery in the covering tissue was severed and brain tissue was contused and lacerated by the displaced portions of the fractured skull, disrupting blood vessels therein and inducing intracerebral hemorrhage. This intracerebral bleeding continued from approximately the time of the accident to at least until the time decedent suffered the convulsion. As the brief of respondent Jones states, the medical cause of decedent's death "was the failure to contain the intracerebral hemorrhage and thus to eliminate or reduce the buildup of pressure prior to the time that he became decerebrate."
The Evidence of Negligence
The testimony of plaintiffs' two experts clearly supported plaintiffs' claim that Dr. Jones had not treated decedent in accordance with the applicable standard of care. Dr. Woods was of the opinion that the standard of care required Dr. Jones to obtain full information concerning the patient's reaction immediately following the injury and upon ascertaining that symptoms of the nature above recited had been manifest, to send the patient to a hospital facility where he would be immobilized under close observation and X-ray and other hospital diagnostic techniques could be applied. Dr. Coulter was also of the opinion that Dr. Jones did not meet the standard of care. He testified that the standard of care required that a doctor make an inquiry to ascertain whether or not there was a history of unconsciousness and upon ascertaining that unconsciousness had ensued, "[s]end that patient in an
The Causation Evidence
Plaintiffs' two medical experts gave testimony upon which plaintiffs relied to show that Dr. Jones' negligence was a legal cause of decedent's death. Both doctors expressed the opinion that Dr. Jones' failure to immobilize decedent during the period immediately following his injury, as a result of which he engaged in normal activities, probably prevented the hemorrhage from spontaneously stopping as a result of the body's normal healing processes. Dr. Woods testified that if decedent "had been, hypothetically, put at rest after arriving at the first aid station, instead of being allowed to move about freely," it was "more likely than not" that the bleeding would "probably have stopped prior to the demise," and that "if the bleeding had stopped during that period where he had no symptoms, and the intracranial pressure hadn't started to build up, then he'd be alive and running around today" without "resultant paralysis or any untoward sequelae."
Dr. Coulter stated his medical opinion that "if the patient had been at bed rest immediately after being seen in the first aid station," the bleeding would be "if not stopped minimized." On cross-examination by counsel for defendant Jones, the following question and answer occurred: "Q. Am I correct in understanding that you are unable to formulate a medical opinion that the bleeding would have stopped? A. No. You are incorrect in that assumption."
Reasons were given in support of these opinions. These included the fact that "physical activity of the body would tend to prevent proper coagulation of blood at the injured portion of the vein," and "interfere with the clotting mechanism," by "dislodging of already formed clots ... through changes of position, particularly in jarring of the head." In addition, the lowering of the patient's head "impairs the return of blood from the head," increasing intracranial pressure.
The effect of the testimony of plaintiffs' doctors in this respect was that Dr. Jones' failure to immobilize decedent probably resulted in his condition changing from one where he would recover spontaneously to one where he could only survive as the result of emergency surgery.
The same view was expressed by Dr. Woods when he gave an answer as follows: "Well, there is an increased chance that it would have stopped from the position in the bed rest alone. However, if it developed, it would be developing under closer observation, and the surgery and tests would have been carried out sooner, which adds the — hand-in-hand with it goes the increased chance of survival."
In cross-examination, counsel for defendant Jones elicited opinions from both Dr. Coulter and Dr. Woods that after decedent arrived at Childrens Hospital, there was still time to diagnose his need for emergency surgery and by performing such surgery to relieve the hemorrhage. Dr. Woods testified in this respect as follows: "Q. And in your opinion, there was an opportunity to relieve that hemorrhage at Childrens Hospital? A. Correct."
The cross-examination of Dr. Coulter in this respect was much more extensive. He testified as follows: "Q. In your opinion, at the time the young man was first at Children's Hospital, there were indications for angiography. Angiography would have made surgery necessary; and surgery would have saved his life, correct? A. That is basically my opinion, yes, sir. Q. And thereafter, the medical staff at Children's Hospital had repeated findings on neurological examination brought to their attention that indicated throughout the night that angiography was indicated, and yet they did not follow up on those findings; is that correct? A. That's correct. Q. Is it your opinion, then, that in fact, the medical staff at Children's Hospital had repeated opportunities to obtain information which would have led to surgery and survival over the course of the first several hours that the young man was in the hospital,
Dr. Coulter's testimony thus suggested, though he did not directly so state, that the failure of the staff at Childrens Hospital to detect the necessity for and perform the emergency surgery which would have led to survival was negligent.
The Agency Evidence
The evidence bearing upon the liability of defendant Dodgers for the negligence of Dr. Jones tended to indicate that an independent contractor relationship existed between them. Plaintiffs relied more upon the claim of ostensible agency based upon Dr. Jones' having been held out as the doctor through whom defendant Dodgers provided emergency medical care. It is unnecessary to discuss this evidence, however, inasmuch as defendant Dodgers does not claim that it was insufficient to sustain a verdict holding them liable for Dr. Jones' negligence.
The Oral Argument
During the course of oral argument, counsel for defendant Jones exploited the cross-examination testimony of plaintiffs' experts that decedent could have been saved by emergency surgery at Childrens Hospital. The first reference to this was as follows: "... The burden is on the plaintiffs to establish that if Dr. Jones had done what they claim he should have done, which was simply hospitalize the boy for observation, that he would have survived; and that except for Dr. Jones' failure to hospitalize him, he would have survived. In other words, unless they can show that at the time Alan Fish arrived at Childrens Hospital, it was too late to do anything for him, then the failure of Dr. Jones, if it was a negligent failure, to hospitalize him earlier, had nothing to do with his death. —"
Counsel for plaintiffs objected to this statement and requested that the court admonish the jury to disregard it. The court declined to do so.
In further argument, counsel for defendant Jones stated:
"Dr. Coulter has testified to the same thing, that when he arrived at Childrens Hospital, it was not too late to save his life. There was no significant chance that surgery would be unsuccessful. In his opinion, if surgery had been performed at that time, or over a period of many hours thereafter, he would anticipate a virtually complete recovery."
In amplification of this argument, counsel for defendant Jones further stated: "You will recall that Dr. Coulter testified that he felt, under the circumstances, the personnel at Childrens Hospital probably should have obtained an angiogram when the young man arrived there — and just briefly, again, this would have been the study where they injected some dye in the blood circulating to the brain; take a picture and see what abnormalities showed up — and in his opinion, the abnormalities that would have showed up at that time would have been basically the same abnormalities that showed up when the angiogram was done some 11 or 12 hours later, somewhere in that vicinity. Or to put it the other way around, that he does not think that there was any significant — or would have been any significant difference in the appearance of the brain injury on the angiogram over that first period of about 12 hours that he was in the hospital; and that based on the appearance of that angiogram, there
The Causation Instructions
In view of the above argument having been made, counsel for plaintiffs requested that the court instruct in accordance with BAJI No. 3.77 (Concurring Causes), BAJI No. 3.79 (When Third Party's Intervening Negligence Becomes Superseding Cause), and BAJI No. 14.66 (Additional Harm Resulting From Original Injury). These requests were denied, and the only instruction given with respect to causation was BAJI No. 3.76, modified to read as follows: "A legal cause of a death is a cause which is a substantial factor in bringing about the death."
The jury was instructed on Friday, September 21, and retired about 11 a.m. They did not reach a verdict by the end of the day. On Monday, September 24, about 11:30 a.m., the jury sent the following note to the court:
The jury was unable to reach a verdict by the end of that day. On Tuesday, September 25, at about 11:30 a.m., the jury requested that the instructions be reread in their entirety. After this was done, the jury resumed deliberations and at 4:01 p.m., sent a note to the court as follows:
The jury was asked to deliberate further and on Wednesday, September 26, at about 2 p.m., brought in the verdict against plaintiffs and in favor of defendants Jones and the Dodgers. This appeal is from the judgment entered thereon in open court.
Plaintiffs contend (1) it was error to refuse the requested instructions in view of the argument made by defendants re causation and the intervening conduct of the Childrens Hospital staff, and (2) inasmuch as this error resulted in the jury finding no liability on the part of Dr. Jones and the sole basis for the assertion of liability against defendant Dodgers was vicarious liability for Dr. Jones' negligence, reversal is also required as to defendant Dodgers.
Defendants contend that the jury was adequately instructed and that their argument on causation was not erroneous. Defendant Dodgers contends that the judgment should be affirmed as to it regardless of any error with respect to the liability of defendant Jones.
Plaintiffs Were Entitled to an Instruction That the Intervening Conduct of the Childrens Hospital Staff Contributing to Decedent's Death Was No Defense
"`... a party has a right to instructions on his theory of the case, if it is reasonable and finds support in the pleadings and evidence or any inference which may be properly drawn from the evidence.' (2 Witkin, Cal. Procedure (1954) § 52, p. 1780.) `Each party is entitled to have his theory of the case submitted to the jury in accordance with the pleadings and proof [citation], and it is incumbent upon the trial court to instruct on all vital issues involved [citations].' (Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 633 [255 P.2d 795].)
"A reviewing court must review the evidence most favorable to the contention that the requested instruction is applicable since the parties are entitled to an instruction thereon if the evidence so viewed could establish the elements of the theory presented. (Selinsky v. Olsen, 38 Cal.2d 102 [237 P.2d 645].)"
Plaintiffs' theory, supporting the claim that Dr. Jones' negligence was a legal cause of decedent's death, was that by negligently failing to ascertain his symptoms and consequent need for immediate hospitalization and allowing him to engage in normal activity, Dr. Jones converted decedent from a patient who probably would have survived without emergency surgery to a patient whose only hope of survival was
"The rules relating to other kinds of intervening causes as superseding causes as set forth in sections 442-453 of Restatement, Second, Torts are:
".... .... .... .... ...
"3. Third person's failure to prevent harm:
For example, illustration 4 to section 452, is as follows: "4. An automobile negligently driven by A strikes B, and leaves him on the highway, unconscious and slowly bleeding to death. C, a passing motorist, stops, looks over the situation, and decides to drive on without doing anything to aid B. B bleeds to death. Regardless of whether C is under any duty to B to render such aid, his failure to do so is not a superseding cause which will relieve A of liability for the death of B."
As is made clear by comment "c" to section 452, the result in illustration 4 would remain unchanged if the passing motorist undertook to stop the flow of blood but failed to do so. Comment "c" reads: "The rule stated in Subsection (1) applies not only where the third person makes no effort to avert the harm, but also where he makes such an effort, but the action which he takes is insufficient, or otherwise unsuccessful, in averting the harm."
Comment "b" explains the basis upon which the failure of preventive effort is not deemed a superseding cause. That comment reads in part as follows: "b. Subsection (1) states the rule, applicable in the ordinary case, that the failure of the third person to act to prevent harm to the other threatened by the original actor's negligent conduct, is not a superseding cause of such harm, and so does not relieve the actor of liability for the harm which he has in fact caused. If the third person is under a duty to the other to take such action, his failure to do so will subject him to liability for his own negligence, which is concurrent with that of the actor, for the resulting harm which he has failed to prevent; but his failure to perform his duty does not relieve the original actor of liability for the results of his own negligence. ..." (Italics added.)
Subsection (1) of section 452 has been approved and applied by our Supreme Court. In Stewart v. Cox, 55 Cal.2d 857 [13 Cal.Rptr. 521, 362 P.2d 345], plaintiffs, who were damaged as the result of water leaking from a defectively constructed swimming pool, sued the general contractor (Wahlstrom), the gunite and reinforcing steel subcontractor (Cox), and the plastering subcontractor (Skinner). Wahlstrom and Skinner settled and Cox was found liable upon trial to the court. The damage resulted from water which leaked over a two-month period during which Wahlstrom had attempted to repair cracks without success. Plaintiffs were awarded a judgment for the full amount of the damage less the sums received in settlement from Wahlstrom and Skinner. On appeal, Cox claimed that Wahlstrom "negligently failed to make effective repairs or prevent refilling of the pool" (55 Cal.2d at p. 863), and that this "constituted a superseding cause which prevents Cox from being liable" (Id.) In affirming, the court said (55 Cal.2d at pp. 863-864):
"The rules set forth in sections 442-453 of the Restatement of Torts for determining whether an intervening act of a third person constitutes a superseding cause which prevents antecedent negligence of the defendant from being a proximate cause of the harm complained of have been accepted in California. (See, for example, McEvoy v. American Pool Corp., 32 Cal.2d 295, 298-299 [195 P.2d 783]; Mosley v. Arden Farms Co., 26 Cal.2d 213, 219 [157 P.2d 372, 158 A.L.R. 872].)
"Under these rules the fact that an intervening act of a third person is done in a negligent manner does not make it a superseding cause if a reasonable man knowing the situation existing when the act of the third person is done would not regard it as highly extraordinary that the third person so acted or the act is a normal response to a situation created by the defendant's conduct and the manner in which the intervening act is done is not extraordinarily negligent. (See Rest., Torts, § 447;
"Although the evidence may point to negligence of Wahlstrom, the record does not establish that Wahlstrom actually knew that the condition was dangerous. The negligence of Wahlstrom, if any, consisted of its failure to perform its duty to the Stewarts to protect them from the harm threatened by the negligence of Cox, and its conduct was not, as a matter of law, highly extraordinary. Therefore it did not constitute a superseding cause, and the finding of the trial court that plaintiffs were damaged as a direct and proximate result of Cox's negligence must be upheld...." (Italics added.)
The foregoing quotation makes it apparent that alternative grounds for affirming the judgment were stated. The requirements for intervening negligence to be a superseding cause under Restatement Second of Torts, section 447, are stated separately from the principle embodied in section 452. Both these rules are found to support the court's finding.
At the time Stewart v. Cox was decided, section 452 did not contain the exception now stated in subsection (2) thereof. Apparently, the caveat expressed in subsection (2) was stated as the result of the existence of authorities in various jurisdictions in which, under exceptional circumstances, the general principle had been found inapplicable. As stated in comment "d" to subsection (2): "[It] covers the exceptional cases in which, because the duty, and hence the entire responsibility for the situation, has been shifted to a third person, the original actor is relieved of liability for the result which follows from the operation of his own negligence. The shifted responsibility means in effect that the duty, or obligation, of the original actor in the matter has terminated, and has been replaced by that of the third person."
There is, moreover, no decision of our Supreme Court recognizing the propriety of the exception stated in subsection (2). As above noted, when approved by our Supreme Court, the section contained no such caveat. We, therefore, conclude that under the facts of this case, the rule of law applicable rendered irrelevant the existence or degree of the negligence, if any, of the Childrens Hospital staff. Under that rule, the claimed negligence of Dr. Jones and the conduct of the Childrens Hospital staff were concurrent causes which were operative at the moment of injury. It was no defense to plaintiffs' claim based on Dr. Jones' negligence that the conduct of the Childrens Hospital staff was also a substantial factor contributing to decedent's death.
Plaintiffs requested an instruction which would have advised the jury of this applicable rule. BAJI No. 3.77
The giving of such an instruction became necessary when counsel for defendant Jones advanced the wholly untenable argument that defendant Jones' negligence could not be a legal cause of decedent's death in view of the fact that when decedent arrived at Childrens Hospital, it was "not too late to save his life" by surgery which was indicated by appropriate diagnostic procedures. Counsel for plaintiffs was, of course, entitled to and did state his disagreement with the offending argument of defense counsel. At this point he was interrupted by counsel for defendant Jones who stated, "Well, I object to Mr. Jacobs' statement that that is not the law. It is the law," to which counsel for plaintiffs replied,
Defendants argue that the instructions proposed were not in the proper form to be used by the court, and rely upon the principle that in order to complain on appeal an aggrieved party must show that he requested "a specific and correct instruction." (Switzer v. State of California, 269 Cal.App.2d 627, 636 [75 Cal.Rptr. 371].) They add that though the trial court has the power to modify a requested instruction, it has no duty to make such modification and may properly reject a requested instruction that is erroneous or incomplete. (Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 158 [323 P.2d 391].) The rule of these cases, however, is not intended to sanction the kind of nitpicking which defendants' criticism of proposed BAJI instruction No. 3.77 entails. Defendants contend that the instruction is incorrect because "death" should be used in place of "injury." That modification should have been made, but it is apparent that it would have been made by the court if the instruction were given; such modification had already been made to BAJI No. 3.75. Defendants also complain that "inapplicable bracketed alternatives" were not deleted. The only language which appropriately should have been stricken therefrom were the four "[proximate]" alternatives to "[legal]" cause. Several other instructions which contained the same alternatives between "proximate" and "legal" had already been appropriately marked by crossing out "proximate." It was a simple clerical operation to do the same with BAJI No. 3.77. The bracketed alternative, "It is no defense that the negligent conduct of a person not joined as a party was also a legal cause of the injury," was particularly apposite and should have been given. The situation, therefore, is governed by the holding in Laird v. Moss, 173 Cal.App.2d 48, 53 [342 P.2d 463]: "The few redundant words could have been crossed out with the stroke of a pen. The imperfections were on a par with clerical errors that are easily corrected. Such trivial inaccuracies do not justify the refusal of an instruction where the result would be to leave the jury inadequately instructed on a material issue in the case. The instruction should have been corrected by the [this] court and given."
There is no need to discuss the claimed defects in the form of proposed BAJI instructions Nos. 3.79 and 14.68. As is apparent from the
The failure to give BAJI instruction No. 3.77 was highly prejudicial. Defendants' argument to the contrary consists mainly of a reassertion of the erroneous argument made to the jury that "the evidence virtually compels a determination that Dr. Jones was not a responsible cause in fact of death because at the time decedent arrived at Children's Hospital, and for twenty-one hours thereafter, his condition was operable and, if surgery had been performed, he would have survived. [Fn. omitted.]" It is apparent from the length of their deliberations and their repeated question concerning the meaning of "substantial factor," that the jury were bewildered by the conflicting arguments of counsel and the failure of the court to say who was correct.
In Self v. General Motors Corp., 42 Cal.App.3d 1 [116 Cal.Rptr. 575], the failure to give a superseding cause instruction when that issue was raised by the evidence, was held prejudicial error. In holding that the trial court prejudicially erred in refusing to give the instruction, the court said (42 Cal. App.3d at p. 10): "Although the court instructed the jury on general cause and on concurrent cause (plaintiffs' theory of the case), it failed to clarify for the jury the issue of superseding cause. Causation, both legal and factual, presents a difficult conceptual problem for jurors — and for trial judges and appellate judges, too, for that matter. Since the court's general instruction on causation did not go into the circumstances of this particular case but dealt with the defense of superseding cause by negative implication only, the jury may well have
The judgment in favor of defendant Jones must, therefore, be reversed.
The Judgment in Favor of Defendant Dodgers Must Also Be Reversed
The principle relied upon is a sound one. Its application to the instant case is, however, unjustifiable. The jury was clearly instructed, "[I]f you
The judgment is reversed and remanded for further proceedings consistent with the view above expressed.
Allport, Acting P.J., and Cobey, J., concurred.
A petition for a rehearing was denied April 23, 1976, and the petition of respondent Los Angeles Dodgers Baseball Club for a hearing by the Supreme Court was denied May 26, 1976.
"If you find that defendant [... (first actor) ...] was negligent and that his negligence was a substantial factor in bringing about an injury to the plaintiff but that the immediate cause of the injury was the negligent conduct of [a third person] [defendant ... (second actor) ...], the defendant [... (first actor) ...] is not relieved of liability for such injury if:
1. At the time of his conduct defendant [... (first actor) ...] realized or reasonably should have realized that [a third person] [defendant ... (second actor) ...] might act as he did; or
2. A reasonable person knowing the situation existing at the time of the conduct of the [third person] [defendant ... (second actor) ...] would not have regarded it as highly extraordinary that the [third person] [defendant ... (second actor) ...] had so acted; or
3. The conduct of the [third person] [defendant ... (second actor) ...] was not extraordinarily negligent and was a normal consequence of the situation created by defendant [... (first actor) ...]."
"(1) Except as stated in Subsection (2), the failure of a third person to act to prevent harm to another threatened by the actor's negligent conduct is not a superseding cause of such harm.
"(2) Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor's negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause."