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LIPEZ, J., with whom DANA, J. joins, dissenting [¶11] I must respectfully dissent. The court's "but for" instruction on proximate cause, which the Court acknowledges was "ill-advised," created such a potential for jury misunderstanding that the jury instructions in their entirety failed to explain adequately the plaintiff's burden of proving causation. That failure prejudiced the plaintiff. See Adamatic v. Progressive Baking Co., 667 A.2d 871, 874 (Me. 1995). [¶12] The facts of this case reveal an unhappy combination of plaintiff impatience and poor advice from a lawyer. Despite the evidence that a number of factors contributed to the plaintiff's decision to take the tenancy and to his subsequent loss of the tenancy, the court instructed the jury that the plaintiff could only establish his malpractice case if he proved by a preponderance of the evidence that "but for Defendant's professional negligence the Plaintiff would not have taken the tenancy or would not have lost the tenancy in the property leased . . . ." This instruction erroneously told the jury that if the plaintiff's own negligence was a substantial factor in his decision to take the tenancy, he loses. The court compounded this error by also telling the jury that the plaintiff loses if he "does not satisfy you by a preponderance of the evidence that [the defendant's] negligence was the proximate cause of his damages . . . ." (emphasis added). Again, the court told the jury that the plaintiff loses if his own negligence was a substantial factor in his decision to take the tenancy, thereby ignoring the critical point that a plaintiff whose own negligence was a substantial factor in causing the harm alleged can still recover from a negligent defendant. [¶13] Although the court did tell the jury that "[a] loss may have more than one legal or proximate cause," the court repeated the phrase "the proximate cause of damage" in its definition of negligence ("[n]egligence is the proximate cause of damage if it plays a substantial part in causing the damage and the damage is a direct result of the negligence or the damage was a reasonably foreseeable result of the negligence." (emphasis added)). It also repeated the ill-advised concept of a sole cause of damage when it stated in the comparative negligence instruction that the defendant "must prove by a preponderance of the evidence that the Plaintiff Frederick Wheeler's negligence was the proximate or legal cause of his own damages." (emphasis added). This misstatement of the defendant's proof requirement on causation paralleled the misstatement of the plaintiff's proof requirement. Given this error, the comparative negligence instruction cannot save the rest of the instruction from prejudicial error. [¶14] It also seems odd to rely on the comparative negligence instruction to save the erroneous instruction on causation in the plaintiff's case when the jury never reached the comparative negligence issue. As noted in the Court's opinion, the jury answered only the first question on the verdict form, "[w]as defendant Russell White negligent, and was his negligence a proximate cause of injury and damages to plaintiff Frederick Wheeler?" Indeed, the verdict form compounded the confusion of the instructions on causation by its appropriate reference to negligence that was "a proximate cause of injury . . . ." (emphasis added). As noted, the court's instruction referred repeatedly and erroneously to "the proximate cause of injury . . . ." (emphasis added). [¶15] White defends the court's instructions by referring to the language we used in cases such as Sohn v. Bernstein, 279 A.2d 529 (Me. 1971), and Schneider v. Richardson, 411 A.2d 656 (Me. 1979). These cases stood for the proposition that a plaintiff alleging negligence on the part of an attorney in a prior lawsuit must establish that he or she "could have recovered" in that prior lawsuit absent the attorney's negligence. See Sohn, 279 A.2d at 532; Schneider, 411 A.2d at 658. We rejected that formulation of causation in Spickler v. York, 566 A.2d 1385 (Me. 1989), where the court told the jury that the plaintiff must satisfy them "by a fair preponderance of the evidence that, had the negligence of the Defendant not been committed, . . . the result in the [underlying] trial could have been different." Id. at 1390 (emphasis in original). We concluded that the use of the word "could" failed to instruct the jury that "more than a mere possibility" that the defendant's alleged negligence caused the plaintiff's loss of the underlying litigation is necessary to establish that the defendant's conduct constituted a proximate cause of the plaintiff's injury. Id. We determined that "[i]n a malpractice action . . . a negligent act . . . is a legal cause of harm to such other person if 'the actor's conduct is a substantial factor in bringing about the harm.'" Id. (quoting Wing v. Morse, 300 A.2d 491, 496 (Me. 1973)) (emphasis in original). [¶16] Recently, however, we invoked a variation of the "but for" test of causation in a legal malpractice action involving an allegation of negligence in prior litigation. In McAlister v. Slosberg, 658 A.2d 658 (Me. 1995), we stated that the plaintiff "had not only to prove that [the attorney] was negligent, but [plaintiff] must also prove that, absent [the attorney's] negligence, [plaintiff] would have been successful on his appeal . . . ." Id. at 660; see also Hoitt v. Hall, 661 A.2d 669, 671 (Me. 1995) ("The legal malpractice case required [plaintiff] to prove that she would have recovered against the State if [the attorney] had filed a timely claim."). Although the "would have recovered" requirement for a malpractice action involving a prior lawsuit approximates a "but for" test, that requirement is not appropriate for all types of malpractice actions. [¶17] This malpractice action does not involve a claim that the plaintiff would have prevailed in a prior lawsuit if the defendant attorney had not been negligent. Instead, the plaintiff claims that negligent legal advice was a substantial factor in his unwise tenancy decision. A "but for" instruction is unworkable in such a case, where a number of factors contribute to the business decision of a plaintiff, including negligent legal advice. Such legal advice may play "a substantial part in bringing about or actually causing the injury or damage" to the plaintiff, and hence the defendant may be liable for damages flowing from the unwise business decision. That is the claim of the plaintiff in this case. It deserved a clear, consistent instruction on the "substantial factor" formulation of proximate cause. Instead, the court's blend of "but for," "sole cause," and "multiple cause" language confused the jurors and prejudiced the plaintiff. I would vacate the judgment.
Attorneys for plaintiff: Todd S. Holbrook, Esq., (orally) Peter J. Rubin, Esq. Bernstein, Shur, Sawyer & Nelson, P.C. P O Box 9729 Portland, ME 04104-5029 Attorney for defendant: James M. Bowie, Esq., (orally) Thompson & Bowie P O Box 4630 Portland, ME 04112 Back to Majority Opinion Back to Opinions page