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Date: 10-04-2021
Case Style:
JAMES STEINLE, individually and
as heir to Kathryn Steinle, deceased; ELIZABETH SULLIVAN, individually and as heir to Kathryn Steinle, deceased v. UNITED STATES OF AMERICA and CITY AND COUNTY OF SAN FRANCISCO, a government entity; JUAN FRANCISCO LOPEZSANCHEZ; ROSS MIRKARIMI
Case Number: 20-15419
Judge: Susan P. Graber
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney:
Defendant's Attorney: Shiwon Choe (argued), Assistant United States Attorney;
Sara Winslow, Chief, Civil Division; David L. Anderson,
United States Attorney; United States Attorney’s Office
Description:
San Francisco, CA - Federal Tort Claims Act / California Tort Law lawyer represented defendant with action alleging that the negligence of a Bureau of Land Management (“BLM”) ranger resulted in the
death of their daughter, Kathryn Steinle.
In 2015, Woychowski worked as a law enforcement
ranger for the BLM, which is part of the United States
Department of the Interior. His duty station was in El Centro,
California. While traveling with his family in their personal
car, en route to Montana, the family stopped for the night in
San Francisco on June 27, 2015. Woychowski parked on the
street along the Embarcadero, a waterfront boulevard popular
with tourists, at about 9:30 p.m. The family walked to a
nearby restaurant. The family’s luggage and other
belongings, including two DVD screens attached to the back
of the seats, were visible to passersby. Among other things,
Woychowski left in the car a loaded, BLM-issued Sig Sauer
P239, in a holster, inside a backpack. The pistol did not have
the trigger lock on it that the BLM had issued to
Woychowski.
1
Plaintiffs brought additional claims against the City and County of
San Francisco, former San Francisco Sheriff Ross Mirkarimi, and Juan
Francico Lopez-Sanchez. We addressed those unrelated matters in Steinle
v. City & County of San Francisco, 919 F.3d 1154 (9th Cir. 2019).
STEINLE V. UNITED STATES 5
Just before 11 p.m., Woychowski and his family returned
to the car. They found the rear passenger windows smashed
and the backpack, along with some other property, gone.
Woychowski reported the theft to police immediately. The
backpack was recovered that night, but the pistol that had
been in it was not.
Four days after the theft, the fatal incident occurred. On
July 1, 2015, Ms. Steinle was walking with her father on
Pier 14 near the Embarcadero, about half a mile from where
Woychowski had parked the family car. Juan Francisco
Lopez-Sanchez was sitting on a bench nearby. He found
Woychowski’s pistol, wrapped in a shirt or rag, near where he
was sitting. He bent over and picked up the wrapped pistol;
he fired it; and a bullet ricocheted off the ground, striking and
killing Ms. Steinle.2
It is not known who stole the pistol, how
many people possessed it in the four days between June 27
and July 1, who took the pistol out of the holster and wrapped
it in a shirt or rag (or why they did so), or how the pistol came
to be left near the bench where Lopez-Sanchez found it.
Plaintiffs sued under the FTCA, alleging that
Woychowski was negligent in failing to store or secure his
firearm properly and in leaving it, loaded, in an unattended
vehicle in an urban location where the firearm could be stolen
readily. The district court entered summary judgment in
favor of Defendant, ruling that Woychowski owed no duty to
Ms. Steinle under California law and that Woychowski’s
2 A jury acquitted Lopez-Sanchez, also known as Jose Ines Garcia
Zarate, of murder, manslaughter, and assault, and his conviction for being
a felon in possession of a firearm was overturned. People v. Garcia
Zarate, No. A153400, 2019 WL 4127299 (Cal. Ct. App. Aug. 30, 2019).
6 STEINLE V. UNITED STATES
actions were not a proximate cause of her death. Plaintiffs
timely appeal.
DISCUSSION
Under the FTCA, the United States may be held liable for
“personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government . . . under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1). Because the alleged negligence occurred in
California, we apply the tort law of California. Miller v.
United States, 945 F.2d 1464, 1466 (9th Cir. 1991) (per
curiam). And we review de novo the district court’s
interpretation of California tort law. Harbeson v. Parke
Davis, Inc., 746 F.2d 517, 521 (9th Cir. 1984).
In California, the “plaintiff in a negligence suit must
demonstrate a legal duty to use due care, a breach of such
legal duty, and the breach as the proximate or legal cause of
the resulting injury.” Vasilenko v. Grace Fam. Church,
3 Cal. 5th 1077, 1083 (2017) (internal quotation marks
omitted). As noted, we do not reach the question whether
Woychowski owed a duty of care to Ms. Steinle. The
required element of legal causation has two components:
“cause in fact and proximate cause.” S. Coast Framing, Inc.
v. Workers’ Comp. Appeals Bd., 61 Cal. 4th 291, 298 (2015).3
3 Plaintiffs appear to argue that they need only establish cause in fact.
That is incorrect. Indeed, the very case on which they rely reiterates the
familiar California requirement that, “[t]o prove causation, the plaintiff
must show: (1) that the defendant’s breach of duty was a cause in fact of
his or her injury; and (2) that the defendant’s breach was the proximate,
STEINLE V. UNITED STATES 7
Although causation often presents a question of fact for the
jury, “where the facts are such that the only reasonable
conclusion is an absence of causation, the question is one of
law, not of fact.” State Dep’t of State Hosps. v. Super. Ct.,
61 Cal. 4th 339, 353 (2015) (internal quotation marks
omitted). Because the factual causes of an event may be
traced far into the past, the law imposes additional limitations
on liability. Those additional limitations relate not only to the
degree of connection between the conduct and the injury, but
also to public policy. Id. The doctrine can bar liability even
when the defendant’s conduct is a factual cause of harm,
depending on the manner in which the injury occurred or the
extent to which the ultimate harm is attenuated from the
breach of duty alleged. Id.; see also PPG Indus., Inc. v.
Transamerica Ins. Co., 20 Cal. 4th 310, 315 (1999) (“To
simply say . . . that the defendant’s conduct was a necessary
antecedent of the injury does not resolve the question of
whether the defendant should be liable.”).
We conclude that the connection between Woychowski’s
storage of the pistol in his vehicle and Ms. Steinle’s death is
so remote that, as a matter of law, Woychowski’s acts were
not the proximate or legal cause of the fatal incident. Several
events—many of which remain unknown—intervened after
Woychowski left the loaded pistol in his vehicle:
(1) someone broke into the locked vehicle; (2) someone stole
a seemingly innocuous backpack; (3) someone found a pistol
in that backpack; (4) someone removed the pistol from its
holster, then wrapped it in a cloth and abandoned or lost it a
or legal, cause of the injury.” Union Pac. R.R. Co. v. Ameron Pole Prods.
LLC, 43 Cal. App. 5th 974, 980 (2019). In that case, the issue pertained
only to cause in fact. Id. at 981–86. Here, by contrast, the pivotal issue
is proximate cause.
8 STEINLE V. UNITED STATES
half-mile away; (5) Lopez-Sanchez picked up the firearm,
four days later, and fired it, apparently aimlessly; and (6) the
bullet ricocheted off the ground and struck Ms. Steinle.
That “Rube Goldbergesque system of fortuitous
linkages,” Wawanesa Mut. Ins. Co. v. Matlock, 60 Cal. App.
4th 583, 588 (1997), is comparable to the facts in cases in
which California courts have held that proximate cause is
lacking as a matter of law. In Wawanesa, a minor bought two
packs of cigarettes and gave one to a slightly younger minor.
Id. at 585. The minors then trespassed onto a private storage
facility containing stacked telephone poles. Id. As the
younger minor smoked, another minor ran into him, causing
him to drop the cigarette, which set fire to the poles. Id. The
company that owned the poles sued the cigarette-purchasing
minor for negligence. Id. at 586. As the Court of Appeal
explained, “the concatenation between [the minor’s] initial
act of giving [the friend] a packet of cigarettes and the later
fire is simply too attenuated to show the fire was reasonably
within the scope of the risk created by the initial act.” Id.
at 588 (emphasis omitted). There was “simply too much
fortuity in the chain.” Id. at 589.
The Court of Appeal similarly concluded that there was
no proximate causation in Shih v. Starbucks Corp., 53 Cal.
App. 5th 1063 (2020). A plaintiff sued Starbucks after she
spilled a cup of hot tea and suffered serious burns; she alleged
that the cup was defective. Id. at 1065. But other mishaps
led to the spill: the plaintiff walked to a table with the drink,
put the drink down, removed the lid, bent over the table,
pushed out her chair, lost her balance, grabbed the table to
avoid failing, and knocked her drink off the table. Id.
at 1070. The court explained why the ultimate injury was too
attenuated from the alleged negligence:
STEINLE V. UNITED STATES 9
Shih argues that, “but for” the fact the cup
was “too hot and too full” to hold[,] . . . Shih
would not have “attempt[ed] to sip the water
from the cup” in the manner she did. Instead,
Shih presumably would have raised the cup to
her mouth, and therefore would not have
leaned forward, would not have moved the
chair out from under her, would not have lost
her balance, would not have grabbed the table,
and would not have knocked her cup off the
table and spilled hot tea on herself.
But that’s a lot of “would not haves,” and
because of that the alleged defects in the drink
were too remotely connected with [Shih’s]
injuries to constitute their legal cause.
Id. at 1068–69 (citations omitted) (emphasis added).
Finally, in Modisette v. Apple, Inc., 30 Cal. App. 5th 136
(2018), a driver using Apple’s FaceTime application on his
iPhone hit the plaintiffs’ vehicle. Id. at 139. The plaintiffs
alleged that Apple had failed to implement a technology that
would have prevented iPhone owners from using FaceTime
while driving at highway speed. Id. at 140. Once again, “the
tenuous connection betweenApple’s conduct and [plaintiffs’]
injuries bar[red] a finding of proximate causation.” Id.
at 152. In other words, “the gap between Apple’s design of
the iPhone and the [plaintiffs’] injuries is too great for the tort
system to hold Apple responsible.” Id. at 155 (emphasis
added).
Those three cases illustrate how and why California
courts consider a long chain of events relevant in determining
10 STEINLE V. UNITED STATES
the presence or absence of proximate causation. A series of
quickly-sequenced mishaps broke the chain of causation
between the design of the Starbucks cup and the serious burns
suffered by the plaintiff. Shih, 53 Cal. App. 5th at 1070.
Similarly, a chain of unanticipated “but-for’s” meant that a
minor’s negligence did not proximately cause a fire that
damaged the plaintiff’s property. Wawanesa Mut., 60 Cal.
App. 4th at 588. And reckless driving superseded Apple’s
design of the iPhone in causing a car accident, even though
the driver had capitalized on his ability to use FaceTime
while on a highway. Modisette, 30 Cal. App. 5th at 139, 152.
Here, too, Ms. Steinle’s death has only a tenuous connection
to Woychowski’s storage of the pistol; the criminal and
negligent actions of at least two other people intervened
between those two events.
In the specific context of stolen firearms, other
jurisdictions have approached the proximate-cause analysis
in a similar fashion. In Finocchio v. Mahler, 37 S.W.3d 300,
301 (Mo. Ct. App. 2000), a minor stole a firearm and
ammunition from his friend’s father. The father kept the
firearm and ammunition in a night stand. Id. The next day,
the minor recklessly discharged the firearm and killed a
young woman. Id. at 302. The woman’s mother sued,
arguing that the owner of the firearm was negligent in storing
the weapon in an unlocked drawer without a trigger lock or
other safety device. Id. The court concluded that the plaintiff
had failed to show that any negligence was the proximate
cause of the death. Id. The chain of causation, the court
reasoned, included criminal acts, which were “acts over
which the owner had no control.” Id. at 303–04.
Additionally, in Estate of Strever v. Cline, 278 Mont. 165,
169 (1996), a man left a firearm and ammunition in a bag in
STEINLE V. UNITED STATES 11
his truck. Four minors opened the truck—it was
unlocked—and found the firearm. Id. One then shot and
killed another, accidentally. Id. The mother of the decedent
sued the owner of the firearm for negligence. Id. at 170. The
Montana Supreme Court concluded that there was no
proximate cause, explaining that “the series of intervening
acts which included two criminal acts and one grossly
negligent act was reasonably unforeseeable and, thereby, cut
off all liability on the part of [the weapon’s owner] for [the
decedent’s] unfortunate death.” Id. at 179.
We also note that California courts have relied on the
Restatement (Third) of Torts for guidance in analyzing
proximate causation. See, e.g., Shih, 53 Cal. App. 5th
at 1069; Modisette, 30 Cal. App. 5th at 154. Intervening
criminal acts do not categorically bar liability. Restatement
(Third) of Torts, § 34 cmt. e. But whether an intervening act
is “unforeseeable, unusual, or highly culpable . . . may bear
on whether the harm is within the scope of the risk.” Id.
Here, at least one criminal act (the theft) and at least one
accident (the bullet ricocheting after Lopez-Sanchez
discharged the pistol) occurred after Woychowski left the
pistol in his vehicle. The chain of events resulted in harm
that was simply too attenuated from Woychowski’s initial act
for liability to be imposed.
Plaintiffs contend that tortious or criminal conduct by
third parties does not break causation where the third party’s
conduct was a foreseeable result of the defendant’s initial
negligence. But the cases that Plaintiffs cite do not support
their argument. Plaintiffs rely on two decisions involving
strict products liability, a doctrine that has no relevance here.
Bolger v. Amazon.com, LLC, 53 Cal. App. 5th 431 (2020);
Collins v. Navistar, Inc., 214 Cal. App. 4th 1486 (2013).
12 STEINLE V. UNITED STATES
Shipp v. Western Engineering, Inc., 55 Cal. App. 5th 476
(2020), does not discuss proximate causation. Nor does
Truck Insurance Exchange v. AMCO Insurance Co., 56 Cal.
App. 5th 619 (2020). Finally, Plaintiffs cite Cordova v. City
of Los Angeles, 61 Cal. 4th 1099 (2015). But that decision
turned on interpretation of a statute establishing that a public
entity could be held liable for injury proximately caused by
a dangerous condition of its property, if the risk of injury was
reasonably foreseeable and the entity could have taken
corrective measures. Id. at 1102. No similar statute
facilitates the imposition of liability here. Plaintiffs otherwise
fail to point to authority, and we have found none,
establishing that Woychowski’s conduct was the proximate
cause of the harm.
Outcome: In sum, we conclude that Woychowski’s storage of the
pistol was too tenuously connected to Ms. Steinle’s death for
the proximate cause element to be satisfied.
AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: