# MBE Torts Proximate Cause: Intervening Criminal Act Trap

Canonical: https://www.barprepplay.com/mbe/torts/proximate-cause-intervening-criminal-act/
Subject: Torts
Byline: BarPrepPlay
Last reviewed: April 21, 2026

## Fact pattern

Northpoint Self-Storage operates a 24-hour facility with a perimeter fence and a single keypad-controlled gate. Three customers reported in writing that the keypad had been broken for several weeks; anyone could push the gate open by hand. Northpoint posted a paper sign reading "gate inoperable, key fob holders use side door" but did not repair the gate or hire security. A burglar walked through the open gate, broke into Vance's storage unit, and stole $40,000 of audio equipment. While loading the equipment into a van, the burglar shot Pearl, a customer who walked in on the theft. Pearl sues Northpoint for negligence, claiming that her injuries were proximately caused by Northpoint's failure to maintain the gate. Northpoint argues the burglar's shooting was a superseding intentional criminal act that breaks the chain of causation.

## Quick answer

The burglar's intentional criminal act does not supersede Northpoint's negligence; Pearl may proceed on her negligence claim, and the burglar's act is treated as a foreseeable concurrent cause rather than an independent break in the chain. Proximate cause requires that the harm be of a foreseeable type and that no superseding cause has cut off the original tortfeasor's liability. An intervening cause is foreseeable — and therefore not superseding — if it is the very kind of risk that made the original conduct negligent. Restatement (Second) of Torts § 449 specifically provides that if the likelihood that a third person may act in a particular manner is one of the hazards that makes the actor negligent, the third person's act, whether innocent or criminal, does not prevent the actor from being liable. Modern courts apply the same principle: criminal acts of third parties are not automatically superseding, especially where the defendant's breach created or exacerbated the very opportunity for criminal conduct.

## Issue

Did the burglar's intentional shooting of Pearl supersede Northpoint's negligence and cut off proximate cause?

## Rule

Proximate cause requires that the harm be of a foreseeable type and that no superseding cause has cut off the original tortfeasor's liability. An intervening cause is foreseeable — and therefore not superseding — if it is the very kind of risk that made the original conduct negligent. Restatement (Second) of Torts § 449 specifically provides that if the likelihood that a third person may act in a particular manner is one of the hazards that makes the actor negligent, the third person's act, whether innocent or criminal, does not prevent the actor from being liable. Modern courts apply the same principle: criminal acts of third parties are not automatically superseding, especially where the defendant's breach created or exacerbated the very opportunity for criminal conduct.

## Application

Northpoint's duty was to maintain reasonable security at a 24-hour storage facility. Its breach was leaving the gate inoperable and posting only a paper sign. The very risk that made that conduct negligent was that intruders would walk in and commit thefts — and that thefts at storage facilities can escalate into violent confrontations when customers arrive unexpectedly. The burglar's entry and theft were precisely the foreseeable harms; the shooting was a foreseeable escalation of a foreseeable confrontation. Under § 449, a criminal act that is itself the realization of the risk created by the defendant is not superseding. Northpoint may also argue that the shooting is too remote, but the proximate-cause inquiry asks about the type of harm, not the precise sequence. Bodily injury to a customer who interrupts a theft is the same type of harm — physical violence flowing from inadequate security — that competent perimeter control was meant to prevent. The chain of causation is not broken.

## Conclusion

The burglar's intentional criminal act does not supersede Northpoint's negligence; Pearl may proceed on her negligence claim, and the burglar's act is treated as a foreseeable concurrent cause rather than an independent break in the chain.

## Numbered reasoning steps

1. Confirm the four elements of negligence — duty, breach, actual cause, and proximate cause.
2. Frame the proximate-cause question by asking whether the harm is of a foreseeable type.
3. For an intervening third-party act, ask whether the act is foreseeable or independent.
4. Apply Restatement § 449 — criminal acts that realize the risk created by the defendant's breach are not superseding.
5. Distinguish foreseeable concurrent causes (joint liability) from true superseding causes (chain broken).

## Why wrong answers fail

- The burglar's intentional act is always superseding because crimes are unforeseeable as a matter of law.: Modern law rejects a per se rule. Foreseeable criminal acts — especially those tied to the same risk that made the defendant's conduct negligent — do not supersede.
- Northpoint owes no duty to Pearl because the burglar, not Northpoint, shot her.: Duty exists between Northpoint and its customers as a business invitee relationship. Whether the harm is proximately caused is a separate question from duty.
- Proximate cause requires that the defendant foresee the precise sequence of events.: Proximate cause asks whether the type of harm is foreseeable, not whether the specific manner of injury is.
- Negligent acts can never combine with intentional acts to produce joint liability.: A foreseeable criminal act is treated as a concurrent cause, and the negligent defendant remains liable along with the intentional tortfeasor.

## Issue-spotting checklist

- Identify the defendant's breach and the type of harm the breach created a risk of.
- Ask whether the intervening criminal act is the same kind of risk that made the conduct negligent.
- Apply Restatement § 449 — criminal realization of the risk is not superseding.
- Frame foreseeability at the level of harm type, not precise sequence.
- Where multiple causes operate, treat foreseeable third-party acts as concurrent rather than superseding.

## Primary law and source anchors

- **Restatement (Second) of Torts § 449**: Foreseeable criminal or intentional intervention does not relieve the original actor of liability.
- **Restatement (Second) of Torts § 442**: Considerations governing whether an intervening force is a superseding cause.
- **Palsgraf v. Long Island R.R., 248 N.Y. 339 (1928)**: Foundational proximate-cause case on the foreseeability framing of duty and harm.
- **Wagon Mound (No. 1), [1961] AC 388**: Proximate cause requires foreseeability of the kind of harm, not its exact extent.

## 3-question quiz teaser

1. Under Restatement § 449, when is a third party's criminal act NOT a superseding cause?
  - When the criminal act is a felony
  - When the criminal act is the realization of the very risk that made the defendant's conduct negligent
  - When the criminal is later convicted
  - When the criminal act occurs within 24 hours of the defendant's breach
2. Foreseeability for proximate-cause purposes is judged at what level?
  - The precise sequence of events
  - The exact extent of damages
  - The type or general kind of harm
  - The identity of the specific victim
3. A landlord fails to fix a broken lobby door. A burglar walks in and assaults a tenant. The most likely outcome is:
  - The burglar's intentional act supersedes the landlord's negligence as a matter of law
  - The landlord is liable because the foreseeable risk of inadequate security included intruder violence
  - The tenant must sue the burglar first before suing the landlord
  - Negligence per se applies and bars any superseding-cause defense

## Related pages

- [MBE Torts Negligence Sudden Emergency Scenario + Examiner Analysis](https://www.barprepplay.com/mbe/torts/negligence-sudden-emergency/)
- [MBE Real Property Adverse Possession Sample Essay](https://www.barprepplay.com/mbe/real-property/adverse-possession-coastal-lot/)

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