The standards for reviewing summary judgments are well established. The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. In this negligence case, Kmart sought to prevail on its motion for summary judgment by negating the foreseeability element of proximate cause through proof of third-party criminal conduct. The Cowarts argue that Kmart did not prove that it could not foresee the resulting damages from the sale of the ammunition to a minor. The Cowarts assert that whether any intervening cause relieves Kmart of liability is a fact issue for the jury.
Proximate cause has two elements, cause in fact and foreseeability.
Foreseeability means the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act created for others. As a general rule, criminal conduct of a third party is a superseding cause that extinguishes the liability of the previous actor. However, when the third party's criminal conduct is a foreseeable result of the prior negligence, the criminal act does not excuse the previous tortfeasor's liability. The act of a third person committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime. In the summary judgment context, a defendant seeking to negate foreseeability must prove more than that the intervening third-party criminal conduct occurred.