Sindler v. Litman

⁹⁹ JAMES R. EYLER, Judge. This case arises out of a motor vehicle accident that occurred on December 7, 1994. In 1997, Barbara Sindler (Ms. Sindler), the occupant of one vehicle, and Bruce Sindler, M.D. (Dr. Sindler or appellant), her spouse, filed a negligence claim in the Circuit Court for Baltimore County, seeking compensation for personal injuries and loss of consortium.

The defendants were Honey Litman (Ms. Litman or appellee), the operator of the other vehicle, and Jeffrey Litman (Mr. Litman or appellee), her spouse and the alleged principal of Ms. Litman. The court entered summary judgment in favor of the Sindlers on the issue of liability. The pre-trial process was very lengthy, and the case was not tried until September, 2004. Prior to trial, on July 5, 2004, Ms. Sindler committed suicide, and on July 16, Dr. Sindler filed an amended complaint to include wrongful death and survival claims.

Also prior to trial, the circuit court entered summary judgment in favor of the Litmans with respect to the wrongful death claim, on substantive law grounds. After a jury returned a verdict for Dr. Sindler with respect to survival and loss of consortium claims, the circuit court granted the Litmans’ motion to dismiss the entire case based on discovery violations. On appeal, Dr. Sindler challenges the dismissal of the wrongful death claim on substantive law grounds and the dismissal of the entire case based on discovery abuse. We shall affirm the court’s rulings.

Factual Background In November, 1997, Ms. Sindler and Dr. Sindler filed a complaint in circuit court against Ms. Litman and Mr. Litman, appellees. 1 The suit contained a claim by Ms. Sindler for her ¹⁰⁰ personal injuries and a joint claim by the Sindlers for loss of consortium. The Sindlers alleged that Ms. Sindler was stopped at a traffic signal when Ms. Litman collided with the rear of her vehicle. The Sindlers moved for summary judgment on the issue of liability, and on July 14, 2002, the court granted it. There were several changes in counsel during the pre-trial phase of the case.

Appellant’s present counsel has been involved only on appeal, and appellees’ present counsel has been involved since October, 2000. Several scheduling orders were entered, and several trial dates were set. There were several postponements, and the case was delayed because of continuing medical treatment by Ms. Sindler, because of substitution of counsel for the Sindlers, and because of business and personal conflicts of counsel and the parties. In January, 1998, appellees propounded interrogatories and a request for documents to the Sindlers.

On September 14, 1998, appellees filed a motion to compel and for sanctions, asserting that the Sindlers had not responded to the discovery requests, despite repeated oral and written demands. By order dated October 7,1998, the court granted the motion and ordered the Sindlers to respond within 10 days of the order. The Sindlers did not comply with the order. In September 1999, the Sindlers provided unexecuted answers to interrogatories and a response to the request for production.

The Sindlers later supplemented the responses, but according to the court’s rulings, the supplementation was incomplete and untimely. The Sindlers never served executed answers to interrogatories, as required by Rule 2-421. In 2000, appellees filed motions to compel medical examinations of Ms. Sindler and motions to exclude expert witnesses who had not been identified in a timely manner. The schedule was changed on several occasions.

In April and July, 2000, appellees took the deposition of Ms. Sindler. On April 17, 2000, the Sindlers filed a motion for summary judgment on the issue of liability as to Ms. Litman, and on ¹⁰¹ July 12, 2000, the court granted it. The docket reflects little activity in 2001 and 2002, except for the issuance of scheduling orders, later modified. On January 3, 2003, the Sindlers filed an expert witness list.

In August 2003, appellees filed a motion to compel medical examinations of Ms. Sindler, which was granted by order dated October 8, 2003. In the same order, the court required the Sindlers to identify all expert witnesses by December 31. In December 2003, the Sindlers served supplemental expert witness lists. On January 7, 2004, appellees filed a motion for protective order with respect to the designations.

In the motion, appellees observed that the Sindlers had identified a total of 32 experts, which called into question the ability to keep the then scheduled trial date of March 22, 2004. Appel-lees requested that the court limit the number of experts and require them to submit to depositions. On January 16, 2004, the Sindlers filed a modified expert list, naming 12 experts, including an expert not previously identified. On January 20, appellees filed a motion to strike the new expert.

On January 22, 2004, the court held a hearing on the motions, and by order dated January 23, postponed the March 22 trial date, rescheduled it for September 8, 2004, and ruled on the motions. The court limited the Sindlers to two medical experts per specialty or claim plus an economist or life planning expert, to be identified by February 23, 2004, and ordered disclosure of all medical records expected to be introduced into evidence. The court also ordered appellees to file an amended expert witness list by March 23, 2004, and ordered that discovery would close on September 8. Because of Ms. Sindler’s continuing treatment and the increase in the nature and extent of her alleged injuries, appellees requested to take a second deposition of the Sin-dlers.

With respect to the nature and extent of injuries, the record indicates that Ms. Sindler was transported to Sinai Hospital after the accident. At that time, she complained of back pain, headaches, and soreness. There was no indication of direct trauma to her head or chest. She was treated and ¹⁰² released.

According to the initial unexecuted draft of answers to interrogatories forwarded by her counsel, Ms. Sindler, at that time, complained of neck and back strain, temporo mandibular joint pain, headaches, depression, and shifting of a breast implant that necessitated surgery. Over time, additional injuries and symptoms were described in papers filed by her counsel or in medical records. In the expert witness list filed in January 2004, the injuries included traumatic brain injury, thalamus damage, migraine headaches, the need for treatment for chronic pain, including laser treatment, the need for a wrist operation and other orthopedic surgery, gastric problems, the need for eye and ear care, a sleep disorder, and the need for physical therapy. According to an affidavit by a legal assistant in the office of appellees’ counsel, which was not contradicted by sworn testimony, the following occurred.

The first request to re-depose the Sindlers was in February 2003. The Sindlers’ counsel agreed, but it was not accomplished. In November 2003, new counsel entered an appearance for the Sindlers, who remained throughout the trial, but was not active during the trial itself. 2 New counsel for the Sindlers agreed to the re-depositions and, for several months in 2004, appellees’ counsel attempted to obtain agreed dates. In June 2004, appellees’ counsel filed formal notices of deposition for July 6 and 7.

In a subsequent telephone conversation between an assistant in the office of the Sindlers’ counsel and an assistant in the office of appellees’ counsel, they agreed that the deposition of Ms. Sindler would occur on July 7 and that counsel for the Sindlers would get a new date for Dr. Sindler’s deposition. On July 1, counsel for the Sindlers objected to the depositions, for the first time, on the ground that the Sindlers had been deposed in 2000. On July 6, the Sindlers’ counsel advised appellees that, on July 5, Ms. Sindler had committed suicide. On June 4, 2004, appellees filed a request for admission of facts and genuineness of documents directed to the Sindlers. ¹⁰³ The responses were due on or about July 6. 3 The Sindlers did not, at any time, file a response, a motion for additional time, a motion to withdraw deemed admissions, or a motion seeking other relief.

On July 16, 2004, Dr. Sindler, as personal representative of the estate of Ms. Sindler and as surviving spouse, filed an amended complaint, containing wrongful death and survival claims. Dr. Sindler alleged that the accident in question caused Ms. Sindler’s death. Also on July 16, appellees filed a motion to dismiss the entire case based on discovery violations. Appellees asserted a history of discovery abuses but primarily relied on the refusal of the Sindlers to be re-deposed and their failure to supply complete medical records and bills by February 23, as required by the court’s January 23, 2004 order.

On July 23, appellant filed an opposition to the motion, asserting that the Sindlers had substantially complied with discovery and that they had forwarded medical records as they had become available and would continue to do so. On July 26, 2004, appellees filed a motion to dismiss the wrongful death claim on the ground that suicide is not a legally cognizable basis for a wrongful death claim because it is barred as a matter of law and/or that the evidence in this case did not support the claim. On August 3, 2004, appellant filed an opposition. On August 4, 2004, the court held a hearing on outstanding motions, and on August 5, issued a ruling.

The court granted the motion to dismiss the wrongful death claim, 4 reserved on ¹⁰⁴ the motion to dismiss based on discovery violations, denied appellant’s motion to supplement his expert witness list, and granted appellees’ motion to re-depose Dr. Sindler. At the hearing, the court considered the deposition of Dr. Gary Lefer and the deposition of Ms. Sindler, taken in 2000, offered by appellant. The court asked appellant’s counsel if appellant had any additional evidence to present, and counsel replied in the negative. The court also considered a one page document, offered by appellees.

The document, containing Dr. Sindler’s letterhead, invited recipients to attend a seminar on wellness. The document stated that the Sindlers earned over $500,000 in residual income over the past 2 years, while working in their wellness business part time. Additionally, it stated that the additional income had allowed them “to travel extensively around the world.” Appellant asserts that the court also considered a written report by Dr. Lefer, but appellees dispute that. On August 16, 2004, appellant filed a motion for reconsideration of the court’s ruling on the motion to dismiss the wrongful death count.

Appellant attached an affidavit from Dr. Lefer and medical reports from other health care providers. On August 26, appellees filed an opposition, and on the same date, the court denied the motion, without giving reasons. On September 8, 2004, the first day of trial, appellees filed several written motions and made several oral motions. One of the oral motions was a motion in limine, requesting the court to rule that the request for admissions and attached medical reports were admissible into evidence.

The court so ruled, and during trial, appellees did admit them into evidence. The request for admissions related to complaints made by Ms. Sindler and medical treatment received by her prior to the accident in question. The request referenced medical records attached to it. At trial, appellant testified and called several friends, acquaintances, and relatives, who described Ms. Sindler’s ability to function before and after the accident, specifically, her ¹⁰⁵ deteriorating mental and physical health after the accident.

Appellant also called treating physicians as expert witnesses, who testified that Ms. Sindler sustained a closed head injury in the accident, opined that her chronic pain and other symptoms were caused by the accident, and opined that her poor mental health was caused by the accident. At the close of appellant’s case, appellees made a motion for judgment and renewed their motion to dismiss. The court denied the motion for judgment and continued to reserve on the motion to dismiss. Ms. Litman and medical experts testified on behalf of appellees.

Not surprisingly, the experts disagreed with appellant’s experts. At the close of all the evidence, appellees renewed their motion for judgment and motion to dismiss. The court reserved on both motions. On September 21, 2004, the jury returned a verdict in favor of appellant as personal representative of the estate for non-economic damages in the amount of $28,000 and for loss of consortium in the amount of $10,000.

On October 4, 2004, the court held a hearing on the reserved motions and granted both of them. This appeal followed. Questions Presented As rephrased by us, appellant presents the following questions. 1. Did the circuit court err in granting appellees’ motion for summary judgment with respect to the wrongful death claim? 2.

Did the circuit court err in granting appellees’ motion to dismiss? 3. Did the court err in granting appellees’ motion for judgment notwithstanding the verdict? ¹⁰⁶ Discussion Wrongful death claim Relying on Eisel v. Bd. of Ed. of Montgomery County, 324 Md. 376, 389-90 , 597 A.2d 447 (1991), and several cases from other jurisdictions, 5 appellant contends the court erred in granting summary judgment in favor of appellees on the wrongful death claim. Standard of Review and Court’s Ruling Before we delve into the substantive issues presented, we note that our task is to determine whether the circuit court’s grant of appellees’ motion for summary judgment was legally correct. Yonce v. SmithKline Beecham Clinical Laboratories, Inc., et al, 111 Md.App. 124, 135 , 680 A.2d 569 (1996) (citing Dixon v. Able Equip.

Co., Inc., 107 Md.App. 541, 543-44 , 668 A.2d 1009 (1995)). The circuit court, in turn, was empowered to enter judgment in favor or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law ... Md. Rule 2-501(e)(1996). In its ruling dated August 5, 2004, the court stated that [t]he following facts are undisputed by the parties and are relevant to disposition of the motions argued on August 4, 2004.

Mrs. Sindler was taken to the hospital immediately after the accident and was treated for minor physical injuries and released the same day. However, Mrs. Sindler continued to complain of mental injuries that she associated with the accident. In the months and years following the accident Mrs. Sindler sought medical treatment for her alleged mental injuries from some 75 doctors throughout the ¹⁰⁷ country. Mrs. Sindler has never been hospitalized for any extended period of time as a result of this accident.

Mrs. Sindler has never been declared insane. From the date of the accident that occurred ten years ago Mrs. Sindler has been able to drive a car, raise children, function in the community, perform the functions of every day life, and travel extensively throughout the world. In granting the summary judgment motion, the court stated that the action could not be maintained under “common law, the Restatement of Torts, or foreseeability and proximate cause,” the three possible theories. In referring to the deposition testimony of Dr. Defer, the court characterized the testimony as speaking of the possibility of suicide in general terms, and insufficient to maintain a cause of action.

Appellant argues that the court improperly resolved disputed facts and “found” facts as evidenced in its ruling. Our review of the record indicates that, at the hearing on the motion, the following exchange took place. Court: Let’s take up the first issue.... That is whether ... a wrongful death action can be maintained given the facts of this case.

The history of the case that I assume counsel will agree with — and if you don’t, I need you to let me know — is that there is a motor vehicle accident which occurs in 1994. The accident, ... causes relatively minor damage to the vehicles involved. I believe I had heard the term in a number of different pleadings of somewhere in the area of $2,000. Subsequent to that motor vehicle accident — I think it was a rear-ender, Mrs. Sindler, the party claiming to be injured in the case, claims that she sustained physical injury and claimed that she sustained mental injury. [In] 1997 she files this suit, three years after the accident, within the statute of limitations, claiming the physical and mental injuries.

Seven years after the suit is filed Ms. Sindler commits suicide and claims that the injuries she sustained in the automobile accident of 1994 were a cause of her death, her ¹⁰⁸ suicide, and therefore, she is entitled to maintain a wrongful death action in this case. Now is there anything I said about those facts that are in dispute? Anybody dispute any of those facts? Appellee’s Counsel: I don’t sir.

Appellant’s Counsel: Just, your honor, that I believe that the damage was more than $2,000 to the vehicle. The Court: How much? Appellant’s Counsel: I understand that, and I’m still requesting this information, it was approximately $6,000 to Ms. Sindler’s vehicle. Court: Well, that’s the first time I’ve heard that; is that right?

Appellee’s Counsel: Your honor, I honestly don’t remember but the information that’s been provided, if it’s $6,000, it’s $6,000. It was a great big old Cadillac. Damage was what it was. Court: Does anybody dispute that Ms. Sindler was not— well, let me ask, was Mrs. Sindler an inpatient for physical injuries as a result of this accident?

Appellee’s Counsel: No, Sir. Appellant’s Counsel: No, Your Honor. The Court: So she was treated in the hospital and then released; is that right? Appellant’s Counsel: That’s correct, Your Honor.

The Court: Anything else that’s disputed about the facts that I stated? Appellant’s Counsel: No, Your Honor. The Court: All right. Now, I’ll hear what — well, before I hear from anybody, do you have any witnesses here today?

Appellant’s Counsel: I do not, Your Honor. All that I have was the deposition — I mean the deposition testimony of Dr. Lefer who was Mrs. Sindler’s treating psychiatrist at the time of her death[J Read in context, the court was determining whether its overall understanding was correct. The record makes clear ¹⁰⁹ that the court considered the deposition transcripts made available to it before it determined that there was no dispute of a material fact and entered summary judgment. The issue does not turn on the general recitation in the court’s ruling.

The determinative question is whether the depositions evidence a genuine dispute as to a material fact that would prevent the entry of summary judgment. We agree with the circuit court and conclude that they do not. Applicable Law Appellees’ main argument in support of their motion to dismiss appellant’s wrongful death claim, in the circuit court and on appeal, is that suicide is not a legally cognizable basis for a wrongful death action in the absence of a special relationship between decedent and appellees. Appellees assert that courts have held that suicide was not a legally cognizable basis for a wrongful death action because either (1) suicide was a per se bar, (2) it did not meet the requirements of Restatement(SECOND) of Torts § 455 (1977) (Restatement), or (3) suicide was a superseding intervening cause.

Appellees urge us to adopt a rule that, under any theory, there can be no recovery for suicide as a matter of law when, as here, a party commits suicide approximately ten years after what initially appears as a non life threatening motor vehicle accident between persons having no prior relationship. In a few decisions, courts have held that suicide is a common law crime and, as such, it is a per se bar to a wrongful death claim. See, e.g., Wackwitz v. Roy, 244 Va. 60, 65-66 , 418 S.E.2d 861 (1992). To commit common law suicide, a person must: (1) take his own life; (2) be “of years of discretion;” and (3) be of “sound mind.” Id. at 65 , 418 S.E.2d 861 .

A person is of “sound mind” if competent and sane. Hill v. Nicodemus, 979 F.2d 987, 990 (4th Cir.1992). Thus, courts applying the per se rule analyze the question of liability for suicide by determining whether the person who took his/her own life was sane within the meaning of common law suicide. See, e.g., ¹¹⁰ Wackwitz, 244 Va. at 65-66 , 418 S.E.2d 861 .

If so, and the person is “of years of discretion,” the person committed common law suicide, and any wrongful death claim is barred. Id. The few Virginia and Fourth Circuit decisions to which appellees have directed us appear to adopt the “per se” rule set forth above. Crucial to the reasoning in these decisions, however, is that “suicide ... remains a common law crime in Virginia.” See, e.g., id. at 56, 418 S.E.2d 861 .

For example in Brown v. G.W. Harris, one of the cases cited by appellees, the Fourth Circuit explained, Under Virginia law, “[i]t is well settled that, as a general rule, ‘a party who consents to and participates in an immoral or illegal act cannot recover damages from other participants for the consequences of that act.’ ” Wackwitz v. Roy, 244 Va. 60 , 418 S.E.2d 861, 864 (1992). As a result, the Virginia Supreme Court held in Wackwitz that, because suicide is a common law crime [in Virginia], it “precludes recovery for injuries sustained as a result of that act.” Id. at 864. 240 F.3d 383, 386 (2001). In Brown, the Fourth Circuit rejected the argument that “there was sufficient evidence in the record for the jury to conclude that Brown was of unsound mind,” stating, In granting judgment as a matter of law on appellant’s state claims, the magistrate judge correctly noted that it would be inappropriate to permit [the jury] to speculate that just because [Brown] had bipolar disorder that he was close to insan[e], that he had an unsound mind. Because appellant has failed to adduce any evidence that Brown was [insane] at the time he took his own life, we hold that the magistrate judge did not err in granting judgement as a matter of law to the appellees on appellant’s state claims.

Id. at 387-88 . Based on Wackwitz , as explained in Brown, appellees argue that “appellants presented no evidence that Mrs. Sindler was of ‘unsound mind’ such that she would not be guilty of the ¹¹¹ common law crime of suicide. Therefore, ... the fact of her alleged suicide bars the appellants’ wrongful death claim as a matter of law.” In making this argument, however, appellees have not acknowledged that it is questionable at best whether Maryland recognizes suicide as a common law crime. See Wilmington Trust Company v. Clark, 289 Md. 313, 329 , 424 A.2d 744 (1981) (“Suicide is no longer a crime either in England or the majority of American jurisdictions, and no American jurisdiction punishes a suicide through forfeiture of goods or any other means.”); Mayne v. State, 45 Md.App. 483, 488 , 414 A.2d 1 (1980)(declining to address “whether or not suicide is a crime in Maryland”).

In contrast to the per se rule, the majority view is that suicide, as a consequence of a negligent act, is not legally cognizable under general principles of proximate causation, either because it is a superseding intervening cause or otherwise not a proximate cause. 6 Under Restatement § 455, however, liability is imposed upon a defendant for another’s suicide when the defendant’s negligent conduct causes the insanity of another and (1) the insanity prevents the person from understanding the nature of the act and the certainty of harm or (2) the insanity makes it impossible to resist an “uncontrollable impulse” that deprives the person of the capacity to govern the person’s own conduct in a reasonable manner. As the Court of Appeals noted in Eisel, 324 Md. at 381 , 597 A.2d 447 , there are two broad categories of cases in which a party may be liable for the suicide of another. One is when a party’s conduct actually causes the suicide, and the other is when, because of a “special relationship,” a party breaches a duty to prevent a foreseeable suicide. Id.

While the same general principles of tort law apply to the two categories, the ¹¹² analysis is different. In the first category, the focus is on the existence of a duty, and in the second category, the focus is on causation, assuming a duty and breach of that duty. The case before us falls into the first category. The issue before us appears to be one of first impression in Maryland. 7 Neither appellees nor appellant have directed us to a single Maryland case endorsing a per se rule in this context.

Regardless, we find the majority approach, based on principles of proximate cause, to be more persuasive. Thus, we decline to adopt a per se rule, and instead adopt the Restatement approach, which is simply a statement of proximate cause in a specific context. Under the proximate cause analysis, the general rule is that “one may not recover damages in negligence for the suicide of another. The act of suicide is generally considered to be a deliberate, intentional, and intervening act which precludes a finding that a given defendant is, in fact, responsible for the decedent’s death.” E.g., Peters, 527 A.2d at 1276 (citing McLaughlin, 123 N.H. at 337, 461 A.2d 123 ); see also Cleveland v. Rotman, 297 F.3d 569, 572 (7th Cir.2002) (“It is well-established under Illinois law that a plaintiff may not recover for a decedent’s suicide following a tortious act because suicide is an independent intervening event that the tortfeasor cannot be expected to foresee.”); Watters v. TSR, Inc., 904 F.2d 378, 383 (6th Cir.1990) (“Generally speaking, it has been said, the act of suicide is viewed as ‘an independent intervening act which the original tortfeasor could not have reasonably [been] ¹¹³ expected to foresee.’ ” (Citations omitted)); Jamison v. Storer Broadcasting Co., 511 F.Supp. 1286, 1292 (E.D.Mich.1981) (“If a person commits suicide in response to a mental condition, as distinguished from a mental illness, a prior tortfeasor, perhaps in part responsible for that condition, will not be liable because the act of the deceased is viewed as an independent intervening cause.”); accord Chalhoub v. Dixon, 338 Ill.App.3d 535 , 272 Ill.Dec. 860 , 788 N.E.2d 164 (2003); Bertrand v. Air Logistics, Inc., 820 So.2d 1228 (La.App.2002); Dry Storage Corp., et al. v. Piscopo, 249 Ga.App. 898 , 550 S.E.2d 419 (2001).

The doctrine of proximate cause is well established in Maryland, and its general principles, as delineated by the Maryland courts, support the rule set forth above that generally suicide is an independent superseding act or, in any event, not proximately caused by the negligent act, which precludes imposing liability on a third party for the suicide of another. The general principles of proximate cause under Maryland law are as follows. Two subparts comprise the element of proximate cause. “[T]he element of proximate cause is satisfied if the negligence is (1) a cause in fact of the injury and (2) a legally cognizable cause.” E.g., Wankel, et al. v. A & B Contractors, Inc., et al., 127 Md.App. 128, 159 , 732 A.2d 333 (1999) (citing Yonce, 111 Md.App. at 138 , 680 A.2d 569 ). Causation in fact raises the threshold question of “whether the defendant’s conduct actually produced [the] injury.” Wankel, 127 Md.App. at 158 , 732 A.2d 333 (citing Peterson v. Underwood, 258 Md. 9, 16-17 , 264 A.2d 851 (1970)).

Maryland courts have employed two tests to determine whether cause in fact exists: the “but for” test and the “substantial factor test.” Wankel, 127 Md.App. at 158 , 732 A.2d 333 (citing Yonce, 111 Md.App. at 138 , 680 A.2d 569 ). By its nature, the “but for” test applies when the injury would not have occurred in the absence of the defendant’s negligent act. Peterson, 258 Md. at 16 , 264 A.2d 851 . The “but for” test does not resolve situations in which two independent causes concur to bring about an injury, and either ¹¹⁴ cause standing alone would have wrought the identical harm.

Yonce, 111 Md.App. at 138 , 680 A.2d 569 . The “substantial factor” test was created to meet this need but has been used frequently in other situations. Yonce, 111 Md.App. at 138 , 680 A.2d 569 (citing Prosser & Keeton, Torts § 41 at 266 (2d Ed. 1955), quoted in Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 208 , 604 A.2d 445 (1992)). The substantial factor test is firmly rooted in the Restatement approach to proximate cause.

The following sections of the Restatement are applicable: § 431. What Constitutes Legal Cause The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in harm. § 433. Considerations Important in Determining Whether Negligent Conduct is Substantial Factor in Producing Harm The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another: (a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (b) whether the actor’s conduct has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (c) lapse of time. Yonce, 111 Md.App. at 138-39 , 680 A.2d 569 (citing Bartholomee v. Casey, 103 Md.App. 34, 56 , 651 A.2d 908 (1994), cert. denied, 338 Md. 557 , 659 A.2d 1293 (1995) (compiling Maryland cases utilizing the “substantial factor” test)). ¹¹⁵ If causation in fact exists, a defendant will not be relieved from liability for an injury if, at the time of the defendant’s negligent act, the defendant should have foreseen the “general field of danger,” not necessarily the specific kind of harm to which the injured party would be subjected as a result of the defendant’s negligence.

Stone v. Chicago Title Ins. Co., 330 Md. 329, 337 , 624 A.2d 496 (1993). As set forth in the Restatement: § 435. Foreseeability of Harm or Manner of its Occurrence (1) If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.

(2) The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm. Quoted in Hartford Ins. Co. v. Manor Inn, 335 Md. 135 , 157 n. 6, 642 A.2d 219 (1994). The notion of foreseeability is also invoked in a determination of proximate cause when two or more non-simultaneous causes are at play.

E.g., Yonce, 111 Md.App. at 140 , 680 A.2d 569 . The chain of causation may be broken by an intervening force (negligent or non-negligent) that may, in turn, become a superseding cause, in which case the original tortfeasor’s liability will terminate. Id. When more than one act of negligence arguably could be responsible for the injury, the question that is presented is whether the second in point of time superceded the first, i.e., did that act intervene and supercede the original act of negligence, thus terminating its role in the causation chain?

Hartford, 335 Md. at 157 , 642 A.2d 219 . An intervening force is a superseding cause if the intervening force was not foreseeable at the time of the primary negligence. ¹¹⁶ The connection between a defendant’s negligence and the plaintiffs injury may be broken by an intervening cause. But in order to excuse the defendant, this intervening cause must be either a superceding or a responsible cause. It is a superceding cause, whether intelligent or not, if it so entirely supercedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in the slightest degree, produces the injury.

It is a responsible one, if it is the culpable act of a human being who is legally responsible for such act. The defendant’s negligence is not deemed the proximate cause of the injury, when the connection is thus actually broken by a responsible intervening cause. But the connection is not actually broken, if the intervening event is one which might, in the natural and ordinary course of things, be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation. State ex. tel.

Schiller v. Hecht Co., 165 Md. 415, 421 , 169 A. 311 (1933). According to Restatement § 442, six factors should be evaluated when determining whether an intervening force rises to the level of a superseding cause: (a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence; (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation; (d) the fact that the operation of the intervening force is due to a third person’s act or his failure to act; ¹¹⁷ (e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; (f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion. Section 455 of the Restatement provides an important exception to the general rule that suicide is a superseding intervening act or, in any event, that the negligent act was not the legal or proximate cause of the suicide. Peters, 527 A.2d at 1275.

The Restatement section assumes that negligent conduct caused delirium or insanity of another and addresses the question as to when the negligent actor is liable for suicide committed by the delirious or insane person. Under § 455, If the actor’s negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it, the actor is also liable for harm done by the other to himself while delirious or insane, if his delirium or insanity (a) prevents him from realizing the nature of his act and the certainty or risk of harm involved therein, or (b) makes it impossible for him to resist an impulse caused by his insanity which deprives him of his capacity to govern his conduct in accordance with reason. Our search has uncovered no appellate decision in Maryland that has expressly adopted the Restatement section. The Restatement formulation of what is sometimes referred to as the “uncontrollable” or “irresistible impulse” test has been adopted by several other courts, however.

E.g., McLaughlin, 461 A.2d at 124 ; Baxter v. Safeway Stores, Inc., 13 Wash.App. 229 , 534 P.2d 585, 587-89 (1975); Fuller, 35 N.Y.2d at 429 , 322 N.E.2d 263 . Insofar as we are informed, no appellate court has expressly rejected it. Under the Restatement exception, “a plaintiff must show more than that the alleged negligent incident started a chain of circumstances that led to suicide.” Peters, 527 A.2d at 1276. The plaintiff must prove that the defendant’s action caused insanity, which prevented the decedent from realizing the nature of the act of suicide or resulted in the decedent’s ¹¹⁸ having an uncontrollable impulse to commit suicide, “in the sense that the decedent could not have decided against and refrained from killing himself, and because of such uncontrollable impulse, the decedent committed suicide.” Id.

(quoting Orcutt, 364 P.2d at 1105). In this regard, the comments to Section 455 are instructive. “Comment on Clause (a)” provides: Clause (a) is applicable when the other’s insanity is so extreme as to prevent him from understanding what he is doing or, if he understands what he is doing, from understanding its inevitable or probable consequences. It also applies to acts done during delirium. Similarly, “Comment on Clause (b)” provides: This Clause applies where the other’s insanity does not deprive him of his capacity to realize the nature or consequences of his act or from forming a purpose to kill or cause harm to himself