Opinion by

Watkins, J.,

This is an appeal from an order dismissing appellant’s motion for a new trial in a negligence suit involving four defendants. Appellant, Harry Pastussek, Sr., had come to the warehouse owned by appellee, Ta-cony Industrial Storage Company (Tacony) and leased in different sections by the other appellees. Appellant was invited by appellee, Murphy Plywood Company, to inspect plywood. After appellee had taken appellant to the plywood, Murphy’s officer, Mr. Murphy, then announced that he had to answer the telephone. He advised appellant to continue to inspect and count the plywood. While Pastuszek was engaged in the counting of the plywood, he fell into a manhole which was not securely covered, and its location half lit. The manhole was located in the aisleway between the plyAvood storage area leased by appellee Murphy and that area leased by appellee Del-Penn Steel Company, a/k/a Kaplan Metals Company. At the time of his fall Pastuszek contends that he Avas engaged in the counting and inspecting of the plyAvood which he was going to buy from Murphy. He alleges that he did not see the covered manhole until after he fell into it.

At trial, appellant gave evidence to the above. At the close of his testimony, the appellee first moved for a compulsory nonsuit, and Avhen the trial judge recommended it, a directed verdict. The motion for a directed verdict was granted. This appeal followed.

The court below based its action upon two findings: (1) that a prima facie case of negligence had not been made out by plaintiff, and (2) even if it had, the plaintiff was contributorily negligent as a matter of law. We disagree.

The appellees contend that the plaintiff did not make out a prim,a facie case. The requirements for a prima facie case in negligence is to prove that one or more of *62the defendants had a duty to the plaintiff and that a breach of such duty was the proximate cause of the plaintiff’s injury. When a defect to real estate is involved, in order to show breach, one must show that defendant had notice of such defect.

In order to have a case go to the jury, one must at least show a prima facie case. The burden of proof required to show a prima facie case is that, if the facts are taken in a light most favorable to the party advancing the argument, the question is at least such that reasonable men could differ as to result. In order to show a prima facie case, it is not necessary to prove that the facts alleged are exclusively in favor of negligence but only that negligence is a possible inference. Stimac v. Barkey, 405 Pa. 253, 174 A. 2d 868 (1961). In Stimac, supra, the Supreme Court quoted from the opinion of Lear v. Shirk’s Motor Express Corp., 397 Pa. 144, 152 A. 2d 883 (1959) at page 257, which summarizes well the criterion for evidence required to have a prima facie case: “A plaintiff is entitled to have his case considered by the jury even though he does not show that the only reasonable inference is that defendant’s negligence was the proximate cause of the accident. It is enough that he produces evidence which may properly be found by the jury to justify an inference that the defendant’s negligence was the proximate cause of the accident because such evidence outweighs, even though it does not exclude, an inference that the defendant was not negligent or that his negligence was not the proximate cause of the accident. (Emphasis supplied).”

Determining the questions of fact is, of course, for the jury and a case should go to the jury unless reasonable men cannot differ on the question. Cardone v. Sheldon Hotel Corporation, 160 Pa. Superior Ct. 193, 50 A. 2d 173 (1947). As it was put in Johnson v. *63 Rulon et al., 363 Pa. 585, 586, 70 A. 2d 325 (1950), “. . . It is only in a clear case, concerning whose facts the minds of reasonable men cannot honestly differ, that the entry of a compulsory nonsuit is ever justified.”

In the instant case the prima facie case would rest upon two elements: (1) showing a duty on the part of one or all the appellees toward the appellant, and (2) showing that that duty was breached. Notice of the defect in the manhole is required to show the breach. A high degree of duty is owed by a business to its invitees. “(He) owed to the plaintiff the affirmative duty of keeping his premises reasonably safe for business visitors, such as plaintiff, and of giving warning of any failure to maintain them in that condition.” Johnson v. Rulon, supra, citing Kulka v. Nemirovsky, 314 Pa. 134, 139, 170 A. 261 (1934). Johnson v. Rulon, supra, held that the mere existence of a trap door on a business premises to be sufficient notice of a possible defect to go to the jury. See also, Hallbauer v. Zarfoss et al., 191 Pa. Superior Ct. 171, 156 A. 2d 542 (1959).

It is at least an inference that, in the light of the above, the appellees owed a duty to the plaintiff to protect him from an improperly secured manhole by virtue of his being a business invitee. As to the breach and notice, it may be inferred to flow from the happening of the accident. While the facts may also be coincident with the accident or as well as with negligence, this is a question for the jury. Stimac v. Barkey, supra. As to notice, the appellees had at least constructive notice of the defect. Johnson v. Rulon, supra, which held as stated that the mere existence of such a potential hazard or a trap door or manhole to be sufficient notice — either constructive or actual.

Finally, the Court below held the appellant to be contributorily negligent as a matter of law because he

*64did not keep a lookout. As was stated above, appellant was a business invitee. Tbe degree of care required by him is lower than if he were on a public sidewalk. Hallbauer v. Zarfoss, supra. In tbe instant case tbe appellant’s attention ivas legitimately on tbe plywood wbicb be was inspecting. He bad no reason to suspect that be was in danger of falling through a defectively covered manhole. Thus, it cannot be beld as a matter of law that tbe appellant was contributorily negligent. Tbis case is very similar to Johnson v. Rulon, supra, where tbe Supreme Court beld that a plaintiff who did not see an open trap door could not be held to be contributorily negligent as a matter of law. In Hallbauer v. Zarfoss, supra, tbis Court beld that a business invitee who fell into a partially obscured stairway while inspecting merchandise could not be beld contributorily negligent as a matter of law.

Thus, it can be seen that at least an inference that one or more of tbe appellees were guilty of negligence. Tbe evidence does not disclose wbicb of tbe appellees, if any, it was, but negligence is a reasonable inference. Appellees should have been required to come forward with their evidence. Tbe case should not have been taken from the jury. As to tbe appellant’s contributory negligence, that is a matter for tbe jury after full evidence is given. Tbe jury is tbe finder of fact.

Order reversed and a new trial is granted.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated February 28, 2005, which granted the plaintiffs motion pursuant to CPLR 4404 (a) to set aside a jury *534verdict in his favor on the issue of liability and directed a new trial.

Ordered that the order is affirmed, with costs.

“It is well settled that a jury verdict should not be disturbed unless there is no fair interpretation of the evidence by which the jury could have reached its conclusion” (Salazar v City of New York, 302 AD2d 580, 581 [2003]; see Nicastro v Park, 113 AD2d 129 [1985]). “A verdict is not supported by legally sufficient evidence if there is no ‘valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial’ ” (Aprea v Franco, 292 AD2d 478 [2002], quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).

Moreover, “[a] jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Garrett v Manaser, 8 AD3d 616, 617 [2004]; see Misa v Filancia, 2 AD3d 810 [2003]). Under the circumstances of this case, the defendant’s entrance into traffic from a driveway without yielding the right of way as required (see Vehicle and Traffic Law § 1143) was negligence as a matter of law and a proximate cause of the accident (see Ferrara v Castro, 283 AD2d 392, 393 [2001]; Palumbo v Holtzer, 235 AD2d 409 [1997]). The plaintiff was entitled to anticipate that the defendant would obey the traffic laws that required him to yield and, contrary to the jury’s implicit conclusion, the plaintiff’s alleged speeding could not have been the sole proximate cause of the accident (see Lagana v Fox, 6 AD3d 583, 584 [2004]). Adams, J.P., S. Miller, Ritter and Fisher, JJ., concur.

OPINION

MONTEMURO, Justice.

Appellant, Jonathon Stewart, appeals from an order and memorandum opinion of the Superior Court affirming a judgement of the Court of Common Pleas of Monroe County following a verdict in favor of appellee, Martin Motts, in this action for personal injuries, 434 Pa.Super. 709, 641 A.2d 1238.

The sole issue presented before us is whether there exists a higher standard of “extraordinary care” for the use of dangerous instrumentalities over and above the standard of “reasonable care” such that the trial court erred for failing to give an instruction to the jury that the Appellee should have used a “high degree of care” in handling gasoline. Because we believe that there is but one standard of care, the standard of “reasonable care”, we affirm.

The pertinent facts of this case are simple and were ably stated by the trial court:

On July 15, 1987, Plaintiff, Jonathon Stewart, stopped at Defendant, Martin Motts’ auto repair shop and offered *600assistance to the Defendant in repairing an automobile fuel tank. In an effort to start and move the car with the gasoline tank unattached, the Plaintiff suggested and then proceeded to pour gasoline into the carburetor. The Defendant was to turn the ignition key at a given moment. While the exact sequence of events was contested, the tragic result was that the car backfired, caused an explosion and resulted in Plaintiff suffering severe burns to his upper body. On October 8, 1992, following a two day trial, a jury returned a verdict for the defendant thus denying the Plaintiffs claim for damages.

Stewart v. Motts, No. 52 Civil of 1988, slip op. at 1 (Court of Common Pleas of Monroe County, Dec. 18, 1992).

The only issue raised before this Court is the refusal of the trial court to read Stewart’s requested point for charge No. 4. This point for charge reads:

We are instructing you that gasoline due to its inflammability, is a very dangerous substance if not properly handled. Therefore, it is incumbent on Mr. Stewart to use care in pouring the gasoline into the motor vehicle. It is also the duty of Mr. Motts to use care in starting the machine to see that the vehicle started without any risk of harm to anyone, particularly Mr. Stewart. The backfiring of engines without the air filter on them does occur. Both Motts, and Stewart, realized, or should have realized the dangerous nature of this substance, and knew, or should have known that the engine may backfire, and/or that the gas may ignite, and burn. With an appreciation of such danger, and under conditions where its existence reasonably should have been known, there follows a high degree of care which circumscribes the conduct of everyone about the danger, and whether the parties, Motts, t/a Motts Radiator, and Stewart, acted as reasonable men under the circumstances is for you the jury to decide. See Konchar v. Cebular, 333 Pa. 499, 3 A.2d 913 (1939).

The trial court denied this point of charge finding that it was “cumulative with respect to the standard charge given by the Court....” Stewart, slip op. at 3. In this appeal, Stewart *601argues that the trial court erred in failing to read point of charge No. 4 to the jury because Pennsylvania law applies an “extraordinary” or “heightened duty of care” to those employing a dangerous agency.

We begin our discussion by reaffirming the principle that there is but one standard of care to be applied to negligence actions involving dangerous instrumentalities in this Commonwealth. This standard of care is “reasonable care” as well stated in the Restatement (Second) of Torts:

The care required is always reasonable care. The standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act and is proportionate to it. The greater the danger, the greater the care which must be exercised....

Restatement (Second) of Torts § 298 comment b (1965).

This comment goes on to say that where the reasonable character of an actor’s conduct is in question “its utility is to be weighed against the magnitude of the risk which it involves.” Id. Thus, if an act involves risk of death or bodily injury, “the highest attention and caution are required.... ” Therefore, the comment concludes, “those who deal with firearms, explosives, poisonous drugs or high tension electricity are required to exercise the closest attention and the most careful precautions ...” Id.

Properly read, our cases involving dangerous agencies reaffirm these well accepted principles found in the Restatement. In Konchar v. Cebular, 333 Pa. 499, 3 A.2d 913 (1939), a case relied upon heavily by appellant in the case at bar, the plaintiff drove into a gas station and ordered a gallon of gasoline. The defendant began pumping gas into the motorcycle, but when three quarters of a gallon was placed in the tank, the gasoline overflowed and ran into the hot cylinders of the engine. The plaintiff, sitting on the motorcycle, was burned when the gasoline exploded. In the subsequent lawsuit for personal injuries, the jury returned a verdict to the defendant. The plaintiff claimed that the trial court erred in sending the question of his contributory negligence to the jury. In decid*602ing the case, this Court noted that gasoline was a dangerous substance requiring a “high duty of care.” Konchar, 333 Pa. at 501, 3 A.2d at 914. We affirmed, holding that, “[i]t was for the jury to decide whether, under all of the circumstances, [the plaintiff] had acted as a reasonably prudent man.” Id. Thus, we recognized that the question of the plaintiffs contributory negligence was to be determined using the reasonable care standard in light of the particular circumstances of the case. One such circumstance, we acknowledged, was that gasoline, a dangerous substance, was involved requiring that the reasonably prudent person exercise a higher degree of care under these circumstances. Taken in context, our statement that the plaintiff was under a “high duty of care” did nothing more than reaffirm the general principle that the care employed by a reasonable man must be proportionate to the danger of the activity.

Similarly, in Fredericks v. Atlantic Refining Co., 282 Pa. 8, 127 A. 615 (1925), the plaintiff pulled into the station and requested gasoline. He was handed the hose and inserted it in the opening. When the valve failed to stop the flow, he called for the attendant to shut off the pump. Instead, the attendant yanked the hose out of the plaintiffs hands causing gasoline to be thrown all over. The gasoline caught fire, severely burning the plaintiff. We affirmed the trial court finding that the plaintiff had sustained his claim of negligence. In affirming, our Court stated the general principle that “[njegligence is absence or want of care under the circumstances.” Fredericks, 282 Pa. at 13, 127 A. at 616. We found that “a higher degree of care is required in dealing with a dangerous agency than in the ordinary affairs of life or business which involve little or no risk.” Id. Ultimately we held that “[n]o absolute standard can be fixed by law, but every reasonable precaution suggested by experience and the known danger ought to be taken.” Id. We closely followed the reasoning of Fredericks in MacDougall v. Pennsylvania Power & Light, 311 Pa. 387, 166 A. 589 (1933) (electricity as a dangerous agency); Pryor v. Chambersburg Oil & Gas Co., 376 Pa. 521, 103 A.2d 425 (1954) (gasoline as a dangerous *603agency). We do not believe that these cases created a heightened or extraordinary standard of care above and beyond the standard of reasonable care for handling dangerous agencies. When we referred to a “higher degree of care” in these cases, we were not creating a second tier of “extraordinary care” over and above ordinary or reasonable care. Instead, we were simply recognizing the general principle that under the reasonable care standard, the level of care must be proportionate to the danger involved. Our use of the language “higher degree of care” merely stated the common sense conclusion that the use of a dangerous agency would require the reasonably prudent person to exercise more care. In fact these cases rejected any formalistic higher standard of care in holding that “no absolute standard of care [could] be fixed by law.”

Admittedly, this notion of a heightened level of “extraordinary care” for the handling of dangerous agencies has crept into our jurisprudence. In Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957), this Court considered the proper standard of care for negligence involving a handgun. The defendant in this case was a grandfather who had left a loaded handgun in an unlocked dresser drawer. While alone in the house, his grandchild found the gun and inadvertently shot another child. We affirmed the trial court’s finding that the grandfather was negligent for permitting a highly dangerous instrumentality to be in the place where a child could come into contact with it. In so affirming, we found that the possession of a loaded handgun placed upon the defendant the duty of, “exercising not simply ordinary, but extraordinary care so that no harm might be visited upon others.” Kuhns, 390 Pa. at 344, 135 A.2d at 403. This language in Kuhns on its face unfortunately suggests that this Commonwealth recognizes a separate standard of care, “extraordinary care”, for dangerous instrumentalities above and beyond “ordinary care.” We reject this suggestion. We note that the Kuhns Court adopted the above-quoted language without citation to or consideration of this Court’s previous cases involving dangerous agencies or the Restatement (Second) of Torts. Since the Kuhns Court *604did not specifically overrule any of these previous cases, we choose to interpret Kuhns consistent with Fredericks, Ronchar, MacDougall, and Pryor. We note that the Kuhns Court explained:

We are not called upon to determine whether the possession of other instrumentalities or objects____would impose the same degree of care under similar circumstances; we are simply to determine the degree of care imposed upon the possessor of a loaded pistol, a weapon possessing lethal qualities, under the circumstances.

Kuhns, 390 Pa. at 344, 135 A.2d at 403.

This language strongly suggests that the Kuhns Court did not create a standard of “extraordinary care” for all dangerous instrumentalities as advocated by the appellant. Instead, we believe that the Kuhns Court considered the danger of an unattended hand gun under the circumstances of this case and fashioned a standard of care proportionate to that danger. This was the conclusion of Judge Spaeth in the Opinion in Support of Affirmance in Everette v. City of New Kensington, 262 Pa.Super. 28, 396 A.2d 467 (1978). Judge Spaeth considered our opinion in Kuhns and explicitly rejected the argument that it created a standard of “extraordinary care” over and above the standard of reasonable care. In Everette, the Dissent argued that Kuhns imposed a higher standard of “extraordinary care” in situations in which a civilian possesses a firearm. Everette, 262 Pa.Super. at 41, 396 A.2d at 474 (Price J., dissenting). Judge Spaeth rejected this argument, stating:

It depends upon, and echoes, the mistaken supposition that there is a ‘higher standard’ of ‘extraordinary care’, in contrast to a lesser standard of ‘reasonable care.’ As Kuhns and the cases it cites hold, there is no such hierarchy of standards; to repeat: for a person who possesses a loaded firearm, ‘extraordinary care’ is ‘reasonable care.’

Id. at 33, 396 A.2d at 469-70.

We agree with Judge Spaeth’s well-reasoned interpretation *605of Kuhns. 1

In summation, this Commonwealth recognizes only one standard of care in negligence actions involving dangerous instrumentalities — the standard of reasonable care under the circumstances. It is well established by our case law that the reasonable man must exercise care in proportion to the danger involved in his act. See MacDougall, 311 Pa. at 396, 166 A. at 592 (“Vigilance must always be commensurate with danger. A high degree of danger always calls for a high degree of care.”); Lineaweaver v. John Wanamaker Philadelphia, 299 Pa. 45, 49, 149 A. 91, 92 (1930) (“The care required increases with the danger.”). Thus, when a reasonable man is presented with circumstances involving the use of dangerous instrumentalities, he must necessarily exercise a “higher” degree of care proportionate to the danger. Our case law has long recognized this common sense proposition that a reasonable man under the circumstances will exert a “higher” degree of care when handling dangerous agencies. See Pryor, 376 Pa. at 526, 103 A.2d at 427 (a “higher degree of care” imposed on persons dealing with gasoline); Konchar, 333 Pa. at 501, 3 A.2d at 914 (a “high duty of care” required for the handling of gasoline); MacDougall, 311 Pa. at 393, 166 A. at 591 (a “higher degree of care and vigilance” required for the handling of electricity); *606and Fredericks, 282 Pa. at 13, 127 A. at 616 (a “higher degree of care” required for the handling of gasoline).

With these principles in mind we must next examine the jury instructions in this case. In examining these instructions, our scope of review is to determine whether the trial court committed clear abuse of discretion or error of law controlling the outcome of the case. Williams v. Philadelphia Transportation Company, 415 Pa. 370, 374, 203 A.2d 665, 668 (1964). Error in a charge is sufficient ground for a new trial, if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Glider v. Com. Dept. of Hwys., 435 Pa. 140, 151-52, 255 A.2d 542, 547 (1969). A charge will be found adequate unless “the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts .to fundamental error.” Voitasefski v. Pittsburgh Rys. Co., 363 Pa. 220, 226, 69 A.2d 370, 373 (1949); A reviewing court will not grant a new trial on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental. Sweeny v. Bonafiglia, 403 Pa. 217, 221, 169 A.2d 292, 293 (1961); Giorgianni v. DiSanzo, 392 Pa. 350, 356, 140 A.2d 802, 805 (1958). In reviewing a trial court’s charge to the jury, we must not take the challenged words or passage out of context of the whole of the charge, but must look to the charge in its entirety. McCay v. Philadelphia Electric Company, 447 Pa. 490, 499, 291 A.2d 759, 763 (1972).

Reviewing the charge as a whole, we cannot conclude that it was inadequate. The trial judge explained to the jury that negligence is “the absence of ordinary care which a reasonably prudent person would exercise in the circumstances here presented.” Transcript of Testimony 10/7/92 at 158. The trial judge further explained:

It is for you to determine how a reasonably prudent person would act in those circumstances. Ordinary care is the care a reasonably prudent person would use under the circumstances presented in this case. It is the duty of every *607person to use ordinary care not only for his own safety and the protection of his property, but also to avoid serious injury to others. What constitutes ordinary care varies according to the particular circumstances and conditions existing then and there. The amount of care required by law must be in keeping with the degree of danger involved.

Id. at 158-59.

The trial judge essentially repeated these instructions in affirming appellee’s point of charge number 8. This point of charge explained that “[wjhat is required of a reasonably prudent man is that he exercise care for his safety according to the circumstances.” Id. at 173. This point of charge further explained that “[w]hen he knows that he is undertaking any activity of danger, his care must be commensurate with that danger.” Id.

We find that this charge, when read as a whole, adequately instructed the jury. The charge informed the jury that the proper standard of care was “reasonable” or “ordinary” care under the circumstances in accordance with the law of this Commonwealth. The charge properly instructed the jury that the level of care required changed with the circumstances. The charge also informed the jury that the level of care required increased proportionately with the level of danger in the activity. We find nothing in this charge that is confusing, misleading, or unclear. From these instructions, the jury had the tools to examine the circumstances of the case and determine that the defendant was required to exercise a “higher degree of care” in using the dangerous agency of gasoline.

Nor do we believe that the failure of the trial judge to include the plaintiffs requested jury point for charge No. 4 was an omission constituting “fundamental error.” Plaintiffs requested point for charge stated that the defendant was required to use a “high degree of care” in employing the dangerous agency of gasoline. As discussed supra, there is no standard of heightened or “extraordinary care” in this Commonwealth that would entitle the plaintiff to this instruction as a matter of law. We do not believe that the phrase “high *608degree of care” found frequently in our case law has any talismanic properties requiring that it always be used in instructing the jury on the standard of care in cases involving dangerous agencies or instrumentalities. We believe it more important that the jury be instructed on the proper standard of care, reasonable or ordinary care under the circumstances, and the requirement that reasonable care is care proportionate to the danger of the activity. This was clearly done in the instant case.

Appellant argues that the language in his point for charge was nearly identical to Pennsylvania Suggested Standard Civil Jury Instruction 3.16 which sets forth the standard of care to be employed on inherently dangerous instrumentalities. PSSCJI 3.16 provides that anyone using a dangerous instrumentality is “required by law to use the highest degree of care practicable.”2 Assuming the applicability of this instruction to the case at bar, we find nothing in it inconsistent with our holding today. The “highest degree of care practicable” is simply another way of phrasing reasonable or ordinary care under the circumstances. We note that this standard jury instruction and point of charge No. 4 are completely consistent with our law. In fact, the use of such an instruction may very well have made the issue clearer to the jury. However, our standard of review is not to determine whether the jury had the best or clearest instructions, but whether they had adequate instructions. We find the jury instructions given in this case to be adequate. The trial judge rejected the plaintiffs point for charge No. 4 as “cumulative” of other jury instructions. We find no abuse of discretion or error of law on the part of the trial court in making this determination.

For the reasons set forth above, we affirm the order of the Superior Court.

*609PAPADAKOS, J., did not participate in the decision of this case.

ZAPPALA, J., concurs in the result.

MONTEMURO, J., is sitting by designation.

*287OPINION

FELDMAN, Justice.

Plaintiffs Bruce and Barbara Myhaver sought review of a court of appeals’ decision holding that the “sudden emergency” instruction was properly given in a case arising out of an automobile collision. See Myhaver v. Knutson, No. 2 CA-CV 95-0279 (Ariz.Ct. App. May 21,1996) (Memorandum Decision). We granted review to determine whether a sudden emergency instruction is ever appropriate under the principles espoused in Ro-sen v. Knaub, 175 Ariz. 329, 857 P.2d 381 (1993) (disapproving the “sudden appearance” instruction), and Petefish v. Dawe, 137 Ariz. 570, 672 P.2d 914 (1983). We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3), Ariz.R.Civ.App.P. 23, and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

In November 1990, Elmo Knutson was driving north on 43rd Avenue near Bell Road in Phoenix when Theresa Magnusson entered 43rd Avenue from a shopping center driveway and headed south in Knutson’s lane. Seeing Magnusson’s car in his lane, Knutson accelerated and swerved left, avoiding what he perceived to be an impending head-on collision. In doing this, he crossed the double yellow line into oncoming traffic and collided with Bruce Myhaver’s pickup. Mag-nusson continued south not realizing she was involved. A police officer who saw the accident stopped her a short distance away and asked her to return to the scene.

Myhaver was seriously injured as a result of the collision and brought a damage action against both Knutson and Magnusson. Mag-nusson settled and was named as a non-party at fault, and the Myhavers proceeded to trial against Knutson.

Prior to trial, the Myhavers moved for partial summary judgment, questioning the viability of the sudden emergency instruction. The parties submitted memoranda on the effect of the then-recently decided Rosen case. Following oral argument, the judge acknowledged that Rosen cast doubt on the propriety of the sudden emergency instruction but denied the Myhavers’ motion, noting that Petefish had never been overruled.

At trial, a different judge ruled that the instruction was appropriate under the facts and instructed the jury as follows:

In determining whether a person acted with reasonable care under the circumstances, you may consider whether such conduct was affected by an emergency.

An “emergency” is defined as a sudden and unexpected encounter with a danger which is either real or reasonably seems to be real. If a person, without negligence on his or her part, encountered such an emergency and acted reasonably to avoid harm to self or others, you may find that the person was not negligent. This is so even though, in hindsight, you feel that under normal conditions some other or better course of conduct could and should have been followed.

RAJI (Civil) 2d Negligence 6.

The jury found Knutson not liable. On appeal, the Myhavers argued that the sudden emergency doctrine is inconsistent with Arizona’s adoption of comparative negligence and should thus be abandoned. Alternatively, they urged that the trial judge erred in giving the instruction under the facts of the case and that it constituted an impermissible comment on the evidence, violating Ariz. Const, art. 6, § 27.

The court of appeals observed that although the sudden appearance instruction was disapproved in Rosen, use of the sudden emergency instruction had never been disapproved or overruled. In addition, the court noted that Petefish not only approved the instruction but distinguished sudden emergency from sudden appearance. Petefish, 137 Ariz. at 573 n. 1, 672 P.2d at 917 n. 1. The court of appeals therefore concluded the instruction was properly given. The court stated further that even if it had been improper, there was no prejudice because the instruction given contemplated the possibility of Knutson’s antecedent negligence and the Myhavers were free to argue that possibility.

*288We granted review to consider the propriety of giving the instruction in this or any case.1

DISCUSSION

A. The sudden emergency doctrine

The Restatement (Second) of Torts § 296 (1965), discusses “emergency” as follows:

(1) In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action.

(2) The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortious conduct which had produced the emergency.

Thus, the sudden emergency instruction tells the jury that in the absence of antecedent negligence, a person confronted with a sudden emergency that deprives him of time to contemplate the best reaction cannot be held to the same standard of care and accuracy of choice as one who has time to deliberate. See Jeffrey F. Ghent, Annotation, Modem Status of Sudden Emergency Doctrine, 10 A.L.R.5th 680, 687 (1993). Criticism of this doctrine has focused on its ability to confuse a jury as to (1) whether the reasonable person standard of care, or some lower standard, applies in an emergency; and (2) how it affects the application of comparative negligence principles.2 Id. The annotation’s author notes that a few jurisdictions have abolished sudden emergency instructions, either generally or just in automobile accident cases, while others have discouraged their use, sometimes placing specific restrictions on which cases are appropriate for their use. Id. at 688. However, several jurisdictions still explicitly retain the sudden emergency doctrine, either generally or with the qualification that sudden emergency instructions are allowed but not required. Id. at 695.

Consideration of a sudden emergency is, of course, not a separate doctrine but only a part of the determination of what is reasonable care under the circumstances.

The law does not require of the actor more than it is reasonable to expect of him under the circumstances which surround him. Therefore, the court and jury in determining the propriety of the actor’s conduct must take into account the fact that he is in a position where he must make a speedy decision between alternative courses of action and that, therefore, he has no time to make an accurate forecast as to the effect of his choice. The mere fact that his choice is unfortunate does not make it improper even though it is one which the actor should not have made had he had sufficient time to consider all the effects likely to follow his action.

Restatement (Second) of Torts § 296 cmt. b.

Commentators on Arizona’s negligence law have described the problem and the present state of our law as follows:

Conceptually, the emergency doctrine is not an independent rule. It is merely an application of the general standard of reasonable care; the emergency is simply one of the circumstances faced. Arguably, giving a separate instruction on sudden emergency focuses the jury’s attention unduly on that aspect of a case. The Arizona Supreme Court has expressly declined to decide the question of the propriety of a separate emergency instruction.

Jefferson L. Lankford & Douglas A. Blaze, The Law of Negligence in Arizona § 3.5(1), *289at 43 (1992) (citing Petefish, 137 Ariz. at 575[n. 2], 672 P.2d at 919[n. 2] ).3

The question we declined to reach in Petefish is squarely before us in this case. Petefish was a passenger in Dawe’s truck. Dawe was following a car around a curve when he was suddenly blinded by what he believed to be the ear’s headlights coming back on the wrong side of the road. He applied his brakes and turned his steering wheel sharply to the right to avoid the perceived head-on collision. As a result, the truck ran off the road and rolled.

In Petefish’s subsequent damage action, Dawe claimed he was forced to run off the road to avoid the perceived emergency, arguing that his evasive actions were therefore appropriate and reasonable. Instructed on the sudden emergency doctrine, the jury returned a verdict in favor of Dawe. On Petefish’s appeal, we recognized that a sudden emergency is simply a factor to “be considered in determining what is reasonable care under the circumstances. The law recognizes ‘the impulses of humanity when placed in dangerous positions, and does not expect thoughtful care from the persons whose lives are thus endangered.’ ” 137 Ariz. at 575, 672 P.2d at 919 (citations omitted). However, even in an emergency the “conduct required is still that of a reasonable person under the circumstances. The emergency is merely a circumstance to be considered in assessing the actor’s conduct.” Id. The instruction is applicable only when the actor either faced or reasonably perceived imminent peril. Id. at 574, 672 P.2d at 918. Therefore, we affirmed “the rule that an actor is not entitled to the benefit of the emergency doctrine when his own negligence has been a cause of the emergency.” Id. at 572, 672 P.2d at 916.

These concepts were contained in the uniform instruction given in the instant case. See Petefish, 137 Ariz. at 577 n. 6, 672 P.2d at 921 n. 6.

We reached a different result in Rosen, in which a sixteen-year-old skateboarding at night was hit by Knaub’s truck. Knaub claimed that Rosen suddenly appeared in the street, leaving no time to avoid the impact; Rosen argued that Knaub’s excessive speed caused the accident. A jury returned a defense verdict, and we granted review to consider the propriety of the “sudden appearance” and “unusual event” instructions given by the trial judge. We explained:

[A] motorist, under quite ordinary circumstances, might indeed have a duty to anticipate the often unpredictable behavior of children, including their sudden appearance in the roadway.

175 Ariz. at 331, 857 P.2d at 383. Thus, we held that the judge erred by instructing “that the driver of an automobile is not required to anticipate the sudden appearance of children in his pathway under ordinary circumstances. ” Id. at 330, 857 P.2d at 382 (emphasis added). Likewise, we found the unusual event instruction to be an incorrect statement of the law,4 holding:

The instruction erroneously suggests that a person never has the duty to anticipate “unusual” or “unlikely” events. It improperly equates “usual” or “likely” with “foreseeable.” It thus fails to recognize that an event can be both unusual and foreseeable, a finding generally reserved to the trier of fact.

Id. at 332, 857 P.2d at 384.

The Myhavers highlight Rosen’s language disapproving the sudden appearance instruc*290tion because of its implicit suggestion that a “ ‘sudden appearance’ is a uniquely important defense existing separate and apart from ordinary principles of negligence.” Id. at 331, 857 P.2d at 383. They argue that this reasoning is equally applicable to the sudden emergency instruction, persuasively contending that a sudden appearance is merely one type of sudden emergency. However, in Pe-tefish we implicitly distinguished the sudden emergency and sudden appearance doctrines. Petefish, 137 Ariz. at 573 n. 1, 672 P.2d at 917 n. 1.

A similar distinction is made by the leading commentators on negligence law, noting that a

further qualification which must be made is that some “emergencies” must be anticipated, and the actor must be prepared to meet them when he engages in an activity in which they are likely to arise. Thus, under present day traffic conditions, any driver of an automobile must be prepared for the sudden appearance of obstacles and persons in the highway, and of other vehicles at intersections, just as one who sees a child on the curb may be required to anticipate its sudden dash into the street, and his failure to act properly when they appear may be found to amount to negligence.

W. Page Keeton et al„ Prosser and Keeton on the Law of Torts § 33, at 197 (5th ed. 1984). Sudden appearances and similar common emergencies, such as ears that fail to stop at controlled intersections, are often not true sudden emergencies. Thus, in eases such as Rosen, neither instruction is appropriate. If the sudden emergency instruction is to be given at all, it should be reserved for the true emergency.

Prosser agrees, stating that it is often the case that “[djespite the basic logic and simplicity of the sudden emergency instruction, it is all too frequently misapplied on the facts or misstated in jury instructions.” Keeton, supra § 33, at 197. As a result, some states hold that the instruction should never be given. See, e.g., DiCenzo v. Izawa, 68 Haw. 528, 723 P.2d 171 (1986); Knapp v. Stanford, 392 So.2d 196 (Miss.1980); McClymont v. Morgan, 238 Neb. 390, 470 N.W.2d 768 (1991). Other states do not require the instruction be given, leaving it to the trial judge’s discretion. See, e.g., Compton v. Pletch, 580 N.E.2d 664 (Ind.1991); Hallett v. Town of Wrentham, 398 Mass. 550, 499 N.E.2d 1189 (1986); McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41 (Utah 1993); Bentley v. Felts, 248 Va. 117, 445 S.E.2d 131 (1994).

Knapp, which is similar to Petefish, is a good example of those cases abandoning the sudden emergency instruction. The defendant, faced with an oncoming car in his lane of travel, swerved to his right and went off the shoulder of the road. After the other car passed him, he swerved back to his left and lost control of his car. Knapp, 392 So.2d at 197. The Mississippi Supreme Court held that the emergency instruction was inappropriate because the emergency was over at the time the accident occurred, the two cars having passed each other and defendant having undertaken to return to the road. Id. at 198. It further concluded that the instruction should not be given in the future because a sudden emergency was simply a factor to be considered in determining reasonable conduct and a separate instruction might overemphasize that factor as well as confuse the jury on comparative negligence issues. Id. at 198-99.

Although criticizing the instruction and holding that it need not be given, other states leave it to the judge’s discretion. Massachusetts has held that a judge may instruct the jury that emergency conditions “are a factor in determining” whether a party acted with reasonable care. Hallett, 499 N.E.2d at 1194-95. A number of states have carefully analyzed the issue and concluded that the instruction should not be routinely given in every claim of emergency. By definition, most accidents involve an emergency. These courts have concluded that the instruction should be discouraged because of the factors already mentioned, though it may be given, in the judge’s discretion, in the few cases presenting true, unanticipated emergencies. See, e.g., Ellwood v. Peters, 182 So.2d 281 (Fla.App.1966) (jury should be instructed only when evidence is clear that actor was faced with situation depriving him of all rea*291sonable opportunity for deliberation); Gagnon v. Crane, 126 N.H. 781, 498 A.2d 718 (1985) (same); Rambo v. McCulloch, 90 Or. App. 392, 752 P.2d 347 (1988) (instruction proper in rear-end accident caused by sudden jamming of brake lining, depriving defendant of ability to control vehicle).

One of the more careful analyses of the subject was made in McKee v. Evans, 380 Pa.Super. 120, 551 A.2d 260 (1988). The Pennsylvania court found that the instruction had been improperly given in favor of a driver involved in a ten-mile pursuit. Id. at 158, 551 A.2d at 279. The court concluded that the instruction was not favored and should be given only in those cases in which evidence showed that (1) the party seeking the instruction had not been negligent prior to the emergency, (2) the emergency had come about suddenly and without warning, and (3) reaction to the emergency was spontaneous, without time for reflection. Id. at 158-61, 279-80. While these factors are certainly not all inclusive, we believe they help describe the situations to which the instruction should be confined.

B. Resolution

Having noted that the instruction is but a factor to be considered in determining reasonable care, is subsumed within the general concept of negligence, is a matter of argument rather than a principle of law, and can single out and unduly emphasize one factor and thus mislead a jury, we join those courts that have discouraged use of the instruction and urge our trial judges to give it only in the rare ease. The instruction should be confined to the case in which the emergency is not of the routine sort produced by the impending accident but arises from events the driver could not be expected to anticipate.

We do not, however, join those courts that absolutely forbid use of the instruction. There are cases in which the instruction may be useful or may help to explain the need to consider a sudden emergency and the consequent reflexive actions of a party when determining reasonable care. We believe, however, that in those few cases in which the instruction is given, it would be important to explain that the existence of a sudden emergency and reaction to it are only some of the factors to be considered in determining what is reasonable conduct under the circumstances. See Young v. Clark, 814 P.2d 364, 367-69 (Colo.1991). Even though a judge may exercise his discretion and give a sudden emergency instruction in a particular case, it will rarely, if ever, be error to refuse to give it.

Applying these principles to the case at bench, we conclude that the trial judge did not abuse his discretion in giving the instruction. This is a case in which there was no evidence of antecedent negligence by Knutson, in whose favor the instruction was given. In light of the testimony of the various witnesses, there was no question about the existence of an emergency. Knutson was faced with a situation not ordinarily to be anticipated and one of imminent peril when Magnusson pulled out of the shopping center and suddenly turned toward him in the wrong lane of traffic. Finally, Knutson’s reaction— swerving across the center line into the path of Myhaver’s oncoming vehicle — was probably both reflexive in nature and the type of conduct that absent a sudden emergency would almost automatically be found as negligence, if not negligence per se. See Zancanaro v. Hopper, 79 Ariz. 207, 212, 286 P.2d 205, 210 (1955); A.R.S. §§ 28-721, 28-726. Given these facts, the real and only issue was whether Knutson’s conduct was reasonable under the circumstances of the emergency. We believe, therefore, the trial judge had discretion to instruct on the sudden emergency as a factor in the determination of negligence.

CONCLUSION

For the foregoing reasons, we approve the court of appeals’ decision and affirm the judgment of the trial court.

JONES, V.C.J., and MOELLER and MARTONE, JJ., concur.

ZLAKET, Chief Justice,

specially concurring.

I am puzzled by the majority’s desire to perpetuate a jury instruction that is admittedly of marginal value but has such enor*292mous potential for harm. In my opinion, today’s decision prolongs a decades-old controversy surrounding the “sudden emergency” doctrine and provides little added guidance to Arizona’s trial judges. While my colleagues’ attempt to narrow the use of the instruction is laudable, I would eliminate it altogether and bring to a close the chapter on this anomalous subject.

To say that the sudden emergency instruction should be confined to “the case in which the emergency is not of the routine sort produced by the impending accident but arises from events the driver could not be expected to anticipate,” ante at 291, 942 P.2d at 450, is not helpful. In fact, while that language does little more than track the instruction itself, it is likely to spark a new round of endless debate about the differences between the “routine” and the unexpected.

Moreover, today’s resolution fails to address the essential flaw in the instruction— that it overemphasizes and tends to accord independent status to what is but one of many elements in every negligence analysis. If drivers cannot “be expected to anticipate” certain events, they are by definition free from negligence. Standard instructions, particularly when supplemented by oral argument of counsel, should be more than sufficient to convey this idea without having a trial judge specifically suggest that one party might be excused because he or she faced an “emergency.”

Much has been written on this subject. Nothing more need be said. I simply agree with those jurisdictions that have discarded the sudden emergency instruction as unwise and unnecessary. I am also unpersuaded by the majority’s attempt to distinguish this charge from the “sudden appearance” instruction that we rejected in Rosen.

However, because the instruction in question has not yet been specifically disapproved in Arizona, and appears to have been harmless under the particular facts of this case, I am unwilling to say that the trial judge abused his discretion. I therefore concur in the result.

Gilbert, J., delivered the opinion of the Court.

In July, 1972, Kathleen Theresa Reilly, appellee, then a student at Prince George’s Community College, lived with her parents in an area not accessible by public transportation. Her father, John E. Reilly, the other appellee, purchased in September of 1971, a 1965 Comet for his daughter’s use, primarily in going back and forth from school. Kathleen enjoyed the almost exclusive use of the vehicle.

On the night of July 7, 1972, Kathleen who had obtained a summer job as a salesperson, had left her place of work and was en route home. She was traveling on Riggs Road and when nearing University Boulevard was descending a hill. Kathleen observed that a traffic signal situated at the interssction of Riggs Avenue and University Boulevard was “red” for her. She applied the foot brake and to her dismay the pedal “went right to the floor.” She was, in short, without foot brakes. Kathleen maneuvered her car from the center lane of the three lane northbound highway into the right hand or right turn lane. The vehicle continued down *467the grade. At the bottom of the hill Kathleen attempted to complete a right turn onto University Boulevard, but apparently the momentum of the car prevented a successful turn. Her car jumped the median strip and collided with a 1965 Buick that was westbound on University Boulevard. The force of the impact rolled the Buick onto its right side. Both occupants of the Buick sustained personal injury.

At a trial before Judge Robert B. Mathias and a jury in the Circuit Court for Prince George’s County, the judge denied motions for directed verdict made in behalf of the respective parties and submitted the controversy to the jury. The jury rendered verdicts in favor of the defendants-appellees.

The appellants, Charles L. Miller and Anthony L. Rowek, vigorously attack, in this Court, Judge Mathias’s denial of their motions for a directed verdict against Kathleen because she (1) failed to demonstrate, at trial, that she had tested the foot brake prior to the accident and, (2) failed to use the “emergency brake” when she had an opportunity to do so. Appellants also allege (3) reversible error because the judge instructed the jury on the “sudden emergency doctrine”, notwithstanding Kathleen’s failure to use the “emergency brake”, and (4) that the judge erred in instructing the jury on the “sudden emergency doctrine” because the appellees did not demonstrate their “vehicle was equipped with a separate independent braking system.”

I

To bolster their argument that Judge Mathias erred in not granting a motion for a directed verdict against Kathleen “due to her failure to demonstrate prior testing by the simple foot pressure test”, the appellants cite us to Sothoron v. West, 180 Md. 539, 26 A. 2d 16 (1942) and its sequelae. In Sothoron Judge Marbury for the Court said, at 543-44:

“The appellee offered as an excuse for the accident the fact that her brakes did not hold. She offered no evidence of any inspection. She testified to a drive which carried her through a number of city blocks and intersections. It is almost *468inconceivable that during the course of such a drive she did not at some time or other have occasion to use the foot brake. Her testimony, however, negatives this. The question before us, therefore, is whether the fact that her brakes suddenly failed her excuses her from the charge of negligence, when she has driven a number of city blocks without making the slightest test of these brakes, until their first use in the descent of a steep hill, where she has to rely on them for her safety and for the safety of other occupants of the highway.

We do not think the appellee is excused. This is not the case of a latent defect which could not have been discovered. A person driving a strange car for the first time owes a duly to the public to see that there are no obvious defects in its mechanism which are apt to cause injury to others. Defective brakes are obvious, because they can be detected by the simple pressure of a foot. The test is so simple that anyone can make it. If such a test shows the brakes in working order, and then they suddenly fail, the driver may not be liable for negligence in driving with them. If no test is made, if the brakes are not even tried, the driver cannot rely upon a presumption that the machine is safe. He will not then be excused from liability for the destruction he may cause upon the public highway, because he did not know his brakes were bad.”

Sotkoron, however, is readily distinguishable as there is in Sothoron no testimony whatsoever of the driver’s use of the foot brake at any time prior to its failure immediately preceding the collision. The record in the instant case, however, reveals that Kathleen, the usual operator of the Comet, testified on direct examination:

“Q. ... Prior to the time when your brakes went out .... on Riggs Road, ... as you were approaching the intersection of University Boulevard ... did you have any trouble with your brakes?

*469A. No, sir.

Q. Had you ever noticed any difficulty in braking or slowing your vehicle to a stop?

A. No, sir.”

On cross-examination she was asked:

“Q. ... [Y]ou testified that you had had no prior problems with the brake, is that what I am to understand?

A. Yes, sir.”

Then on redirect Kathleen deposed:

“Q. ... [You were asked] about school and summer employment.... Where indeed were you coming from when this accident happened?

A. From my summer employment.

* * *

Q. ... What kind of a job did you have over there?

A. Salesperson.

Q. What were your hours?

A. That night?

Q. Yes.

A. That night it was from 12:30 to 9:30.

Q. So, you were on your way home from work is that right?

A. Yes, sir.

Q. And, did you usually drive to and from work in the Comet?

A. Yes, sir.

Q. And, now that day going to the [place of employment] and then again returning and prior to the time that you had the brake failure had you had any trouble with the car or the brakes?

A. No, sir.”

*470Such testimony is in our view sufficient to submit the question of Kathleen’s use of the brakes on the date of the accident to the jury for its determination. We point to the fact that on the day of the accident Kathleen drove the Comet to work. She worked that day for nine hours. It is obvious if she drove to work and then actually worked in a department store she of necessity would have had to apply the brakes of the car in order to halt it when she arrived at her place of employment. Furthermore, there was testimony that new brakes had been installed on the Comet at the time of purchase and, the vehicle had only been driven 6,000 miles following the installation of the brakes in the “early fall of 1971. ” John Reilly informed the jury that he periodically drove the Comet in order to inspect it, and that in June, 1972, he took the vehicle to a service station for an oil change. While there he noticed that the brakes “were down a little”, and in order to correct that he “had the brakes adjusted to bring them back up to where they should be.” Such testimony on the part of the defendants-appellees is similar to that present in the case of Garfinkle v. Birnios, 232 Md. 402, 194 A. 2d 91 (1963), where there was evidence that the brakes had been inspected several weeks before the accident. The_0ourt of Appeals in Garfinkle indicated that an instruction to the jury that when a defendant has made proper inspection of the brakes of his vehicle, and the jury so finds, then the law is that if the brakes were “in working order and then they suddenly fail, the driver may not be liable for negligence in driving with them.” To the same effect see Larsen v. Romeo, 254 Md. 220, 255 A. 2d 387 (1969).

Judge J. DeWeese Carter (specially assigned) wrote for the Court of Appeals in Wood v. Johnson, 242 Md. 446, 219 A. 2d 231 (1966), at 454:

“ ... [T]hat the showing of a brake failure makes a prima facie case of a violation of § 291 of Article 66V2[1]and, if such violation is further shown to be the proximate cause of the accident, the then *471permissible inference of negligence must be controverted by a showing of adequate inspection and a sudden unexpected failure.”

Sudden brake failure is a fact of motoring life; it is unfortunately a part of our mechanized society. Because machines are known to break without prior warning, automobiles should be periodically inspected by the owners. Indeed, Wood v. Johnson, supra, flatly states that a defendant-owner is under a greater responsibility to inspect and test a vehicle than one who is a mere operator. See also Kaplan v. Stein, 198 Md. 414, 84 A. 2d 81 (1951). The routine inspection is not a panacea, however, for all dangerous conditions. The latent defect may still go undetected, but a routine examination does minimize the chance that that which should be readily discovered and corrected will not go undiscovered and uncorrected.

We believe that the evidence in this case was sufficient to satisfy the requirements of both Sothoron and Wood. Therefore, we perceive no error by Judge M.athias in refusing to direct a verdict for the appellants.

II and III

The appellants’ second and third arguments, though couched in slightly different language, are so interrelated that we shall treat them as one. The appellants argue that the trial judge erred in refusing to grant a directed verdict in their favor because of Kathleen’s failure to use the “emergency brake” when she had an opportunity to do so prior to the collision, and because of such an opportunity, the trial court should not have instructed the jury on the “sudden emergency doctrine.” In this connection the appellants contend that Kathleen had ample time between the discovery of the foot brake failure and actual collision to apply the “emergency brake” (we observe that Md. Ann. Code Art. 66V2, § 12-301 does not use that nomenclature but rather refers to it as the “parking brake”) so as to bring her vehicle to a stop. The answer to the appellants’ contention is found in Warnke v. Essex, 217 Md. 183, 141 A. 2d 728 (1958), which was expounded upon in Armstrong v. Johnson Motor *472Lines, 12 Md. App. 492, 280 A. 2d 24 (1971), and reiterated in Effler v. Webber, 18 Md. App. 162, 305 A. 2d 485 (1973). The Warnke Court held at 187:

“Whether the operator of an automobile was confronted with an emergency, and whether he acted negligently under the circumstances, are generally questions for the jury. 10B Blashfield, Automobile Law and Practice (1957), § 6648.” (Emphasis supplied).

This Court in Armstrong said, at 501:

“Proof by a party that he acted as he did because he was confronted with an emergency, to which he did not contribute, and which he could not have foreseen by the exercise of reasonable care, becomes one of the circumstances surrounding the entire occurrence, and focuses the inquiry on the question of whether he exercised due care under those circumstances. He is to be judged, not by hindsight, but in the light of the alternatives available to him in that emergency, and the time available to him to recognize and evaluate those alternatives, and to make the choice of a reasonable, prudent person. Whether he was negligent in the action he took in the face of the emergency, or whether he used reasonable care under the circumstances is ordinarily a jury question. Lehmann v. Johnson, 218 Md. 343, 146 A. 2d 886 [(1958)].”

In Ejfler, we said that whether a driver, confronted with a sudden emergency, acted negligently under the circumstances is a question of fact for the jury to determine. It may be, as appellants suggest, that Kathleen could have applied the parking brake and brought her vehicle to a halt. She might have attempted to “motor brake” the vehicle by downshifting the gears, or she possibly could have turned the vehicle into a curb in an effort to stop it. Perhaps she could have avoided the collision by sounding the horn or *473blinking the headlights. It is, of course, comparatively easy to “second guess” or “Monday Morning Quarterback” a motorist who is confronted by a sudden emergency, but as Judge Powers said in Armstrong, supra, the driver is not to be judged by hindsight, but whether he exercised due care under the circumstances with which he was confronted at the time.

Professor Prosser’s Handbook of the Law of Torts § 33 (3rd Ed. 1964) states at 171-172:

“ . . . [I]t seems clear that the basis of the special rule [emergency doctrine] is merely that the actor is left no time for thought, or is reasonably so disturbed or excited, that he cannot weigh alternative courses of action, and must make a speedy decision, based very largely upon impulse or guess. Under such conditions, the actor cannot reasonably be held to the same conduct as one who has had full opportunity to reflect, even though it later appears that he made the wrong decision, which no reasonable man could possibly have made after due deliberation. His choice ‘may be mistaken and yet prudent.’ ” (Footnotes omitted).

See also Effler v. Weber, supra.

Appellants would have us hold, in essence, that because a vehicle is equipped with a parking brake, the failure of a motorist to use that brake when his foot brakes suddenly fail, is negligence as a matter of law. We decline to do so. We think that Judge Mathias properly denied the appellants’ motion for a directed verdict, correctly instructed the jury on the “doctrine of sudden emergency” and rightfully submitted the matter to the jury for its determination of whether Kathleen used reasonable care under the concomitant circumstances.

IV

Appellants advance the theory “that the jury should not have been instructed that the sudden emergency doctrine was applicable absent proof by the appellee that her vehicle *474contained the statutorily required emergency brake equipment.” In support of that theory appellants rely upon Fink v. East Miss. Elec. Power Assn., 234 Miss. 221, 105 So. 2d 548 (1958), and Ritchie v. Davidson, 183 Neb. 94, 158 N.W.2d 275 (1968). In Fink the court held that a driver who was proceeding on a highway behind a truck that suddenly slowed was guilty of negligence as a matter of law when he, realizing that his foot brakes would not stop his vehicle in sufficient time to avoid a collision with the rear of the truck and knowing that he was on a well traveled road, swerved into the path of oncoming traffic and collided head-on with another vehicle. The court noted that the errant driver had three alternatives open to him at the time his brakes failed. They were: (1) turning his vehicle to the right (2) striking the truck or (3) turning to the left into the oncoming traffic. The driver chose the latter “without first ascertaining whether a vehicle was occupying the ... lane.” The Mississippi court concluded that the evidence demonstrated the driver’s turning into the oncoming traffic was the proximate cause of the accident. The Court was careful to point out, however, that had the driver turned to the right he could have gone onto the “shoulder of the highway” which “was wide enough to accommodate an automobile.” Under Mississippi law it is apparently incumbent upon one claiming refuge behind the sudden emergency rule to show affirmatively that his vehicle was equipped with two separate means to bring the automobile to a stop; that he did not know and by the exercise of reasonable care could not have known that the vehicle’s braking system was defective; that when the incident arose he made reasonable efforts to use both braking systems and that both failed, or that upon the sudden failure of the foot brakes he was unable, in the exercise of reasonable effort to stop the car; that he utilized as much care as a reasonably prudent person would use if confronted by similar circumstances.

The case is readily distinguishable from the holdings of the Court of Appeals of this State. No Maryland case that we have been able to find places an affirmative duty upon a defendant to prove that his automobile was equipped with *475two separate means to stop his car and that both systems failed. The Legislature has enacted a statute that requires motor vehicles, except motorcycles, to be equipped with foot brakes and parking brakes, Md. Ann. Code Art. 66V2, § 12-301. Nothing therein, however, is indicative of a legislative intent that in order to invoke the sudden emergency rule one must show that both sets of brakes failed.

The most distinguishing factor, in our view, between the Maryland decisions and Fink is that the Mississippi court has usurped the jury function of fact finder, and decided as a matter of law that the failure to choose the most prudent of the three alternative ways out of the situation that confronted the driver established negligence.

In Ritchie, the Supreme Court of Nebraska held that a motorist traveling fifteen to twenty miles per hour, whose foot brakes suddenly failed, was guilty of inexcusable negligence in failing to use the “emergency brake” to stop the car. Ritchie is also factually inapposite to the case at bar. Moreover, the Nebraska court was apparently injecting itself into the fact finding process, or at least determining that the distance the striking vehicle was from the struck vehicle when the brakes of the striking vehicle failed, coupled with the rate of speed of the striking vehicle, was as a matter of law negligence.

We are unpersuaded by Fink v. East Miss. Elec. Power Assn., supra, and Ritchie v. Davidson, supra. As we read Mintzer v. Miller, 249 Md. 506, 240 A. 2d 262 (1968), Wood v. Johnson, supra, Langville v. Glen Burnie Lines, 233 Md. 181, 195 A. 2d 717 (1963), Garfinkle v. Birnios, supra, Lehmann v. Johnson, 218 Md. 343, 146 A. 2d 886 (1958), Kaplan v. Stein, supra, Sothoron v. West, supra, and Currie v. United States, 201 F. Supp. 414 (D. Md. 1962), aff'd, 312 F. 2d 1 (4th Cir. 1963), it is manifest that the Maryland decisions are in accord with a number of her sister states which hold that sudden brake failure is “prima facie evidence of negligence, or is evidence from which an inference of negligence can be drawn. . . .” Annot., 40 A.L.R.3d 9, 40 (1971). Such prima facie evidence or inference “must be controverted by a *476showing of adequate inspection and sudden unexpected failure.” Wood v. Johnson, supra. Even those states that hold that a violation of a statute or regulation pertaining to brakes is negligence per se, nevertheless, merely shift to the defendant “the burden of going ahead with the evidence to establish excuse or absence of negligence.”2 It would appear that whether one styles the rule prima facie, but rebuttable, or negligence per se, but rebuttable, is of no import. In either case proof of the happening of an accident, coupled with the defendant’s explanation of sudden brake failure, shifts to the defendant the burden of going forward with the evidence to establish, if he can, the existence of a sudden emergency to which he did not contribute and could not have foreseen.3

We decline to hold that failure to use the parking brake, or as it is, popularly known, the “emergency brake,” in order to avoid a collision when the foot brakes suddenly fail is negligence as a matter of law. Rather, we think that evidence of a failure to use the parking or “emergency brake” is an element for the jury to consider in its deliberations over whether a defendant has exercised due care under the circumstances.

Judgment affirmed.

Costs to be paid by appellants.

PRICE, Judge:

Appellants take this appeal from an order of the court of common pleas en banc granting appellees’ motion for summary judgment. The complaint alleged a cause of action in trespass for injuries to the minor-plaintiff, six years and two weeks old at the time of the accident, caused by the negligent swinging of a wooden stick by the minor-defendant, five years and seven months old at the time. The court granted summary judgment on the ground that the minor-defendant was under the age of seven years and, therefore, conclusively presumed incapable of negligence. Appellants contend that a minor of over five years of age is capable of actionable negligence and that this case should have proceeded to trial to allow a jury to apply the appropriate standard of care and decide the issue of negligence. We disagree and affirm the court of common pleas.

On a motion for summary judgment filed pursuant to Pa.R.C.P. No. 1035, the court must accept as true all well-pleaded facts and consider any admissions of record, First Pennsylvania Bank v. Triester, 251 Pa.Super. 372, 380 *402A.2d 826 (1977), resolving against the moving party any doubts as to the existence of a genuine issue of material fact. Lehigh Electric Products Co. v. Pennsylvania National Mutual Casualty Insurance Co., 257 Pa.Super. 198, 390 A.2d 781 (1978); Carollo v. Forty-Eight Insulation, Inc., 252 Pa.Super. 422, 381 A.2d 990 (1977). We are also mindful that summary judgment may only be granted in the clearest of cases. Matson v. Parking Service Corp., 242 Pa.Super. 125, 363 A.2d 1192 (1976); Granthum v. Textile Machine Works, 230 Pa.Super. 199, 326 A.2d 449 (1974).

[4—6] The issue with which we are confronted in this case is the minimum age below which a child is incapable of acting negligently because he lacks the attention, intelligence and judgment necessary to enable him to perceive risk and recognize its unreasonable character. The obligation to use reasonable care extends to both adults and minors, but the standard against which the acts of a child are measured to determine if they constitute negligent conduct varies from that employed for adults. When measuring the conduct of children, courts depart from the well-known objective test of the care of a reasonable and prudent man, the test generally utilized to judge adult behavior, Gift v. Palmer, 392 Pa. 628, 141 A.2d 408 (1958); Aquadro v. CrandallMcKenzie and Henderson, Inc., 182 Pa.Super. 435, 128 A.2d 147 (1956), and make allowance for immaturity. A child is held to that measure of care that other minors of like age, experience, capacity and development would ordinarily exercise under similar circumstances. Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957); Koenig v. Flaherty, 383 Pa. 187, 117 A.2d 719 (1955).

The application of this standard is clarified by the use of several presumptions delineating convenient points to aid in drawing the uncertain line between capacity to appreciate and guard against danger and incapacity: (1) minors under the age of seven years are conclusively presumed incapable of negligence; (2) minors between, the ages of seven and fourteen years are presumed incapable of negligence, but the presumption is a rebuttable one that weakens as the *403fourteenth year is approached; (3) minors over the age of fourteen years are presumptively capable of negligence, with the burden placed on the minor to prove incapacity. Kuhns v. Brugger, supra. These presumptions were arrived at by analogy to the common-law rule of responsibility for committing crimes, see Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959); Commonwealth v. Bowes, 166 Pa.Super. 625, 74 A.2d 795 (1950), and were initially applied to measure a child’s responsibility for contributory negligence. Parker v. Washington Electric Street Railway Co., 207 Pa. 438, 56 A. 1001 (1904). See Masters v. Alexander, 424 Pa. 65, 225 A.2d 905 (1967); Smith v. Waldman, 193 Pa.Super. 166, 164 A.2d 20 (1960). From the cases in which contributory negligence was in issue, our supreme court in Kuhns v. Brugger, supra, deduced the standard of care to be applied in negligence cases in which liability is sought to be imposed upon a minor.

Appellants argue that since the court in Kuhns relied upon cases in which contributory negligence was in issue rather than actionable negligence, it should be limited to its facts, which involved a twelve-year-old child. They contend that the language in Kuhns concerning application of a conclusive presumption of incapability of negligence to those under the age of seven years is dictum that should be bypassed in favor of a flexible determination by the jury of the minor-defendant’s ability to appreciate danger, taking into account the differing facts of each case. While we acknowledge that the facts of Kuhns are not entirely similar to the instant case, we find its principles controlling.

Failure to apply the age presumptions set forth in Kuhns to allegedly negligent minor defendants would result in treating a child’s conduct differently when his own liability is in question as opposed to when he seeks to recover from another but has allegedly been contributorily negligent. Utilization of the presumptions solely in the latter circumstance, in which their application is long recognized and soundly established, would result in holding a child less responsible for his acts when he is a plaintiff than when he *404is a defendant. Although arguments have been advanced in favor of such a result, we do not find them persuasive.

The first of two such arguments is that contributory negligence usually involves a child’s comprehension of the acts or neglect of people around him, and it takes greater maturity and judgment to comprehend and avoid danger created by others than to avoid danger created by one’s own acts. See Zuckerbrod v. Burch, 88 N.J.Super. 1, 210 A.2d 425 (1965). This argument is completely speculative in nature. It is just as easily argued (and just as speculative), that greater maturity and more sophisticated judgment is required for a child to recognize that another will be harmed by his conduct than for a child to develop the ability to recognize danger to himself from another’s conduct because the latter ability derives from an instinct for self preservation, which is developed at an early age. See 67 A.L.R.2d 570, 576 n.17 (1959). The critical point is that the condition of immaturity is equally applicable to the acts of the child regardless of whether he is labeled plaintiff or defendant, and in either case the same standard should be applied. See W. Prosser, The Law of Torts § 51 (2d ed. 1955) (adult plaintiff required to conform to same standard of conduct as used to determine negligence).

The second argument is that a strong public policy exists to protect children from losses due to their own immaturity despite their contributory negligence, especially against an admittedly negligent adult defendant. See Zuckerbrod v. Burch, supra; H. Shulman, “The Standard of Care Required of Children," 37 Yale L.J. 618, 619 (1928). We note, however, that in conjunction with the recognition of immaturity, we must also recognize that the capacity to understand and appreciate the consequences of acts develops gradually with the acquisition of age and experience. The conclusive presumption that a child was incapable of contributory negligence until he reached the age of seven years developed out of the need for a practical and simple rule to achieve expediency in the determination of capacity. This need is equally apparent in cases of actionable negligence.

*405“The law fixes no arbitrary period when the immunity of childhood ceases and the responsibilities of life begin .... At what age then must an infant’s responsibility for negligence be presumed to commence? This question cannot be answered by referring it to the jury. That would furnish us with no rule whatever. It would give us a mere shifting standard, affected by the sympathies or prejudices of the jury in each particular case.... It is a question of law for the court.” Nagle v. Allegheny Valley Railroad Co., 88 Pa. 35, 39 (1878).

Recognizing the application to children less than seven years of age of the conclusive presumption of incapability of negligence and finding the essential facts not in dispute, we determine that upon their own showing, appellants were not entitled to relief. The court of common pleas properly granted summary judgment.

Order affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I disagree with the Majority’s extension of Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957), to the facts of this case. When determining whether a child is capable of acting negligently, the standard to be applied is that of a reasonable person of like age, intelligence and experience under the circumstances. Restatement of Torts (Second) § 283A. This standard, unlike the Majority’s conclusive presumption, adequately takes into account the differing capacities of children of the same age to appreciate and cope with the dangers of a given situation.

Although a conclusive presumption of inability to act negligently may be appropriate where the defendant is a child of three or four years, such a presumption is not appropriate here. The child in this case is five years and seven months old. The complaint alleged that the defendant-child caused an injury to the plaintiff by swinging a wooden stick. Considering this, a jury should be given the *406opportunity to determine whether such an action, taking into account the child’s age, intelligence and experience, was negligent.

Because the issue of negligence should have been submitted to the jury with instructions as to the child’s appropriate standard of care, I dissent.

Murphy, P. J.

Plaintiff appeals as of right from a jury verdict of no cause of action in favor of defendant. We reverse and remand.

*442As a fourteen-year-old, defendant Aaron Veenstra took a driver’s education course offered through the Calumet Public School system. Veenstra had skipped four grades in elementary school and graduated from high school early. He was taking driver’s education so that he would have transportation to college. Before the driver’s education course, Veenstra had never driven an automobile on a public road in a developed area. On the first day of the driving portion of the class, Veenstra stopped the automobile he was driving at an intersection. When the traffic cleared, Veenstra made a right turn. However, Veenstra turned too shatply and headed at plaintiff who was getting out of his parked automobile. Both Veenstra and the driving instructor attempted to turn Veenstra’s automobile away from plaintiff. Veenstra testified that as he was heading for plaintiff, he may have hit the accelerator instead of the brake. As a result, Veenstra’s automobile struck plaintiff.

At trial, over plaintiff’s objection, the trial court gave the following instruction:

A minor is not held to the same standard of conduct as an adult. When I use the words “ordinary care” with respect to the minor, Aaron S. Veenstra, I mean that degree of care which a reasonably careful minor of age, mental capacity and experience of Aaron S. Veenstra would use under the circumstances which you find existed in this case. It is for you to decide what a reasonably careful minor would do or would not do under such circumstances.1

Utilizing this instruction, the jury found that Veenstra was not negligent.

*443On appeal, plaintiff claims that the trial court’s instruction was improper and mandates reversal. We agree. The determination whether an instruction is accurate and applicable to a case rests within the sound discretion of the trial court. Luidens v 63rd Dist Court, 219 Mich App 24, 27; 555 NW2d 709 (1996). There is no error requiring reversal if the theories and applicable law were adequately and fairly presented to the jury. Id. In this case, the instruction read by the trial court was not applicable.

Generally, in the context of negligence actions, the capability of minors, seven years of age or older, is not determined on the basis of an adult standard of conduct, but rather is determined on the basis of how a minor of similar age, mental capacity, and experience would conduct himself. See Fire Ins Exchange v Diehl, 206 Mich App 108, 119-120; 520 NW2d 675 (1996). However, Michigan “has a longstanding policy of holding all drivers, even minors, to an adult standard of care.” People v Martinez, 211 Mich App 147, 151; 535 NW2d 236 (1995). A minor who engages in an adult activity that is dangerous, e.g., driving an automobile, is charged with the same standard of conduct as an adult. Constantino v Wolverine Ins Co, 407 Mich 896 (1979); Osner v Boughner, 180 Mich App 248, 254-255; 446 NW2d 873 (1989).

Plaintiff argued below and argues on appeal that this black-letter law applies to this case and that, although Veenstra was a minor, because he was engaged in the adult activity of driving an automobile, he should be held to the same standard of conduct as an adult.2 Veenstra and the trial court consider this *444case to be distinguishable from prior cases holding that minors driving automobiles are held to an adult standard of conduct and call for an exception to that rule. In denying plaintiffs motion for a new trial, the trial court stated that, although driving an automobile is an adult activity, “[d]riving a motor vehicle as a student driver under the supervision of a driver’s training teacher during the course of a school driver’s training program” is not an adult activity. Veenstra argues that, because he was participating in a minor-oriented driver training program, he was not engaged in an adult activity and attempts to bolster this argument by referring to MCL 257.811(6); MSA 9.2511(6), which states that an operator’s license shall not be issued to a person under eighteen years of age unless that person passes a driver’s education course.* *3 In essence, Veenstra defines the activity he was involved in as not simply driving an automobile, but driving an automobile as part of a driver’s education course to satisfy the legislative requirements placed upon those under eighteen years of age seeking to obtain an operator’s license, and claims that because he was engaged in an activity, which by definition is limited to minors, he was not engaged in an adult activity and should not be held to an adult standard of conduct. We disagree.

*445One rationale behind holding a minor driving an automobile to an adult standard of conduct is that, because of the frequency and sometimes catastrophic results of automobile accidents, it would be unfair to the public to permit a minor operating an automobile to observe any standard of care other than that expected of all others operating automobiles. See Dellwo v Pearson, 259 Minn 452, 458; 107 NW2d 859 (1961) It would seem illogical to think that the dangers associated with driving are lessened when the activity is undertaken by a minor with little or no experience. While we concede that Veenstra was attempting to satisfy requirements placed only upon minors, we do not think that changes the nature of, or danger associated with, driving an automobile. In our opinion, defendant defines the activity he was engaged in too narrowly. Veenstra was engaged in the adult activity of driving an automobile, and we do not consider the reasons behind his undertaking the activity to justify departure from the general rule that all drivers, even minors, are held to an adult standard of care. The licensing statutes cited by Veenstra are important in determining the qualifications required to drive an automobile, see 2 Restatement Torts, 2d, § 283A, comment c, p 16, and assuring a minimum level of driver competence. We find no authority in these statutes to apply a lesser standard of care to those seeking to satisfy the statutory qualifications and are not persuaded that the policy behind the rule applying an adult standard of care to minors driving automobiles should be set aside under these circumstances. If a lesser standard of care is to be applied to minors in Veenstra’s circumstance, it should be imposed by the Legislature. As a result, the trial court *446erred in instructing the jury to consider the degree of care that a reasonably careful minor of the same age, mental capacity, and experience as Veenstra would use under the circumstances.

While the process of learning involves unique dangers, for which some allowance may be justified for beginners undertaking some activities, when the probability of, or potential harm associated with, a particular activity is great, anyone engaged in the activity must be held to a certain minimum level of competence, even though that level may lie beyond the capability of a beginner. See 2 Restatement Torts, 2d, § 299, comment d, pp 71-72. In other words, some activities are so dangerous that the risk must be borne by the beginner rather than the innocent victims, and lack of competence is no excuse. Id. We believe that driving an automobile is such an activity, and that anyone driving an automobile, regardless of age, must be held to the same standard of competence and conduct.

Reversed and remanded for a new trial. We do not retain jurisdiction.

Per Curiam.

In short, when an infant participates with adults in a sport ordinarily played by adults, on a course or field ordinarily used by adults for that sport, and commits a primary tortious act, he should be held to the same standard of care as the adult participants (see Dellwo v. Pearson, 259 Minn. 452; Ewing v. Biddle, 216 N. E. 2d 863 [Ind.j; Restatement, Torts 2d, § 283A, Comment c).

The order should be affirmed, without costs, on the opinion of the court below (58 Misc 2d 128).

Frank A. Gulotta, P. J.

(dissenting). This case involves the standard of care to be applied to the conduct of an ll-year-old boy playing golf as part of a foursome which included his mother and two other adults. They were on a private course, *588operated by a club of which the parents presumably were members.

The action, originally commenced against the infant and his father, was dismissed on consent as to the father.

Playing the par 3 — 7th hole, 170 yards long, the infant hit his tee shot while the previous foursome, which included the plaintiff, were still within range, about 150 yards away. Apparently the course layout requires a player who has holed out on the 7th green, to walk back over a bridge toward the 7th tee in order to reach the 8th tee, which is off to the side and is protected by a screen. Plaintiff was hit while on the bridge.

The infant defendant was a regular player who had been playing for two years, had taken lessons, and even at his age should have been aware of the impropriety of hitting a ball deliberately in the direction of another player who was within range and in plain view. So there was more than enough proof for' the jury to have found defendant negligent in failing to exercise that degree of care to be expected of a child of his age, mental capacity and experience under the same or similar circumstances (Karpeles v. Heine, 227 N. Y. 74; PJI 2:23).

However, the jury was not given this established rule for judging the infant defendant’s conduct. Instead it was instructed, as a matter of law, to apply the same standard that would be applied to an adult i.e. the prudent man rule.

The authority for this view is said to lie in an exception set forth in the Restatement (Second) of Torts, (§ 283A. Comment c) and in Dellwo v. Pearson (259 Minn. 452) a leading case applying the exception.

Comment c reads as follows: “ Child- engaging in adult activity. An exception to the rule stated in this Section may arise where the child engages in an activity which is normally undertaken only by adults, and for which adult qualifications are required. As in the case of one entering upon a professional activity which requires special skill (see § 299 A), he may be held to the standard of adult skill, knowledge, and competence, and no allowance may be made for his immaturity. Thus, for example, if a boy of fourteen were to attempt to fly an airplane, his age and inexperience would not excuse him from liability for flying it in a negligent manner. The same may be true where the child drives an automobile. In this connection licensing statutes, and the examinations given to drivers, may be important in determining the qualifications required; but even if the child succeeds in obtaining a license he may thereafter be required to meet the standard established primarily for adults.”

*589 Dellwo was a motor boat case and most of the cases applying the so-called ‘1 new rule ’ ’ are cases involving motorized vehicles of some type or cases where licenses are required (see 20 Syracuse L. Rev., p. 825, n. 19). I do not think a valid analogy can be drawn between driving a golf ball and driving an automobile. It is true that harm can result from either, but so can it from baseball, football, archery and many other activities and surely we cannot have a special rule for each.

Even if we subscribe to the Comment for the purpose of discussion, it seems to me that the idea expressed in this exception has no application to the instant case, if for no other reason than that golf is not an activity normally engaged in only by adults. As the opinion we are reviewing notes, it is not at all uncommon to find teenagers walking off with championships open to people of all ages.

Furthermore, the rule applied here is unworkable. It amounts to adopting a rule for a single case. It is even intimated in the opinion below that the rule might change if defendant had had less experience, was less proficient, was a different age, etc., which demonstrates its essential fallacy. In my opinion a jury should weigh those differences under the usual charge for infants, which takes them into account as part of the charge.

There is no such difficulty when dealing with a licensed activity such as driving an automobile, as suggested in the Comment. There we have a clear line of demarcation as to when the rule changes.

Neither do I think the County Court’s rejection of the usual test of infant care on the ground that it varies dependent on whether the infant is a plaintiff or a defendant — in other words whether the issue is one of negligence or contributory negligence— to be sound. The rule in New York has always been that the same allowance is made for infancy whether the infant seeks a recovery or is himself charged with wrongdoing (Eagle v. Janoff, 12 A D 2d 638), and the prevailing view seems to be that way too. (Prosser, Law of Torts [3d ed.], p. 159, n. 64. cf. PJI 2:23 with 2:48.)

Therefore, I dissent from the affirmance.

I would reverse the judgment because of the error in the charge and order a new trial, since there is no way of telling whether the jury would have reached the same result under a proper charge.

Pittoni and McCullough, JJ., concur in Per Curiam opinion; Gulotta, P. J., dissents in opinion.

Order affirmed, etc.

MORRIS, Chief Judge.

Plaintiff has brought forward on appeal 15 assignments of error directed to 26 exceptions to rulings and instructions of the trial court. We direct our inquiry to a very limited number of assignments of error which identify substantial errors of law sufficiently prejudicial to the plaintiff to require a new trial of this matter. We will not address the remaining assignments of error because of the probability that the same errors, if any, will not recur upon retrial of the cause.

[1] Assignment of error No. 4 is directed to the trial court’s charge concerning the definition of negligence and the applicable standard of care:

“Negligence, ladies and gentlemen of the jury, is the failure of someone to act as a reasonably and careful and prudent person would under the same or similar circumstances. Obviously, this could be the doing of something or the failure to do something, depending on the circumstances. With respect to aviation negligence could be more specifically defined as the failure to exercise that degree of ordinary care and caution, which an ordinary prudent pilot having the same training and experience as Fred Heath, would have used in the same or similar circumstances.”

It is a familiar rule of law that the standard of care required of an individual, unless altered by statute, is the conduct of the reasonably prudent man under the same or similar circumstances. See Williams v. Trust Co., 292 N.C. 416, 233 S.E. 2d 589 (1977); Toone v. Adams, 262 N.C. 403, 137 S.E. 2d 132 (1964). While the standard of care of the reasonably prudent man remains constant, the quantity or degree of care required varies significantly with the attendant circumstances. Pinyan v. Settle, 263 N.C. 578, 139 *163S.E. 2d 863 (1965); Raper v. McCrory-McLellan Corp., 259 N.C. 199, 130 S.E. 2d 281 (1963).

The trial court improperly introduced a subjective standard of care into the definition of negligence by referring to the “ordinary care and caution, which an ordinary prudent pilot having the same training and experience as Fred Heath, would have used in the same or similar circumstances.” (Emphasis added.) We are aware of the authorities which support the application of a greater standard of care than that of the ordinary prudent man for persons shown to possess special skill in a particular endeavor. See generally Prosser, Law of Torts (4th ed.) § 32. Indeed, our courts have long recognized that one who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care. See e.g., Insurance Co. v. Sprinkler Co., 266 N.C. 134, 146 S.E. 2d 53 (1966) (fire sprinkler contractor); Service Co. v. Sales Co., 261 N.C. 660, 136 S.E. 2d 56 (1964) (industrial designer); Hunt v. Bradshaw, 242 N.C. 517, 88 S.E. 2d 762 (1955) (physician); Hodges v. Carter, 239 N.C. 517, 80 S.E. 2d 144 (1954) (attorney). Furthermore, the specialist within a profession may be held to a standard of care greater than that required of the general practitioner. See generally Dickens v. Everhart, 284 N.C. 95, 199 S.E. 2d 440 (1973). Nevertheless, the professional standard remains an objective standard. For example, the recognized standard for a physician is established as “the standard of professional competence and care customary in similar communities among physicians engaged in his field of practice.” Dickens v. Everhart, 284 N.C. at 101, 199 S.E. 2d at 443.

Such objective standards avoid the evil of imposing a different standard of care upon each individual. The instructions in this case concerning the pilot’s standard of care are misleading at best, and a misapplication of the law. They permit the jury to consider Fred Heath’s own particular experience and training, whether outstanding or inferior, in determining the requisite standard of conduct, rather than applying a minimum standard generally applicable to all pilots. The plaintiff is entitled to an instruction holding Fred Heath to the objective minimum standard of care applicable to all pilots.

[2] Plaintiff assigns error to the portion of the trial court’s summary of the defendant’s evidence as elicited during cross-*164examination. Plaintiff excepts to the following statement by the court:

“That the ignition was on one of the magnetos which would indicate that the pilot, having encountered difficulty, had switched from both, which is an emergency procedure; . . .”

Plaintiff contends that the evidence did not reasonably support the trial court’s statement that the pilot had initiated an emergency procedure. Defendants argue that the court drew a reasonable inference from the evidence. It is conceded by defendants that there was no testimony precisely stating that switching magnetos is an “emergency procedure”.

It is fundamental in this State that the trial court may not submit for the consideration of the jury facts material to the issue of negligence not fully supported by the evidence. Dove v. Cain, 267 N.C. 645, 148 S.E. 2d 611 (1966). The issue of whether the pilot of the Piper 180 Arrow was in fact confronted with an “emergency” due to engine malfunction is a crucial element of the case. Testimony that a pilot is taught to switch magnetos when the aircraft is experiencing engine roughness is, under the facts of this case, insufficient evidence in this record to support the court’s charge which intimated that switching magnetos constitutes per se an emergency procedure. Moreover, there is no evidence to suggest that engine roughness presents an emergency situation when proper safety factors are taken into consideration prior to an attempted takeoff.

[3] Plaintiff also assigns error to the following portion of the court’s summary of the contentions of the parties:

“[T]hat the plaintiff would have Fred Heath adhere to a perfect exact standard whereas the standard is that of the ordinary prudent pilot; . . .”

Such a statement may appear to the jury as an indication of the trial court’s opinion with respect to the merits of plaintiff’s lawsuit. It is clear from the pleadings that the plaintiff is proceeding only on the theory of a failure to exercise the due care required of the ordinary prudent pilot. There is no basis for the trial court’s statement that plaintiff insists on a perfect standard as opposed to a reasonable standard. This Court has held that when the manner of stating the contentions of the parties is in*165dicative of the court’s opinion on the case, the charge is violative of G.S. 1-180. Voorhees v. Guthrie, 9 N.C. App. 266, 175 S.E. 2d 614 (1970). G.S. 1-180 is now embodied in substance within G.S. 1A-1, Rule 51(a). Little v. Poole, 11 N.C. App. 597, 182 S.E. 2d 206 (1971). Furthermore, exceptions to an expression of opinion within the context of the summary of the contentions of the parties may be raised for the first time on appeal. Voorhees v. Guthrie, supra; State v. Powell, 6 N.C. App. 8, 169 S.E. 2d 210 (1969).

This matter was well tried by both counsel for plaintiff and counsel for defendants, and several days were consumed in its trial. Nevertheless, for prejudicial errors in the charge, there must be a

New trial.

Judges MARTIN (Harry C.) and CARLTON concur.

Justice BRISTER

delivered the opinion of the Court.

In this unusual medical malpractice case, both physician and patient were doc*652tors. Each claimed the other was negligent, and a jury agreed both were. As the jury assessed slightly more fault to the plaintiff (51 percent) than the defendant (49 percent), the trial court entered a take-nothing judgment.1

A divided court of appeals reversed and remanded for a new trial, disregarding the finding of the plaintiffs negligence because laymen generally have no duty to volunteer information during medical treatment.2 But the plaintiff here was not a layman, and jurors judging his actions could consider his expertise, especially as he emphasized it throughout the trial. Because there was some evidence the plaintiff doctor failed to report a critical symptom when he should have, we reverse the court of appeals’ judgment and reinstate the jury’s verdict.

I. Background

This suit was brought by Dr. David Ax-elrad, a psychiatrist, against Dr. Richard Jackson, an internist. Like the court of appeals, we will refer only to the latter by his title to avoid confusion.

After months of intermittent abdominal cramps and diarrhea, Axelrad sought treatment from Dr. Jackson after an abrupt onset of acute pain. Dr. Jackson prescribed a laxative and enema for fecal impaction. As it turned out, Axelrad was suffering from diverticulitis. It is undisputed an enema should not be prescribed in such circumstances due to the risk of a perforated colon.

Returning home, Axelrad followed his doctor’s orders and immediately felt severe abdominal pain with nausea, rigors, and chills. His wife took him to an emergency room, and he was hospitalized for further testing. Based on those tests, another doctor operated two days later for what was thought to be appendicitis, but turned out to be diverticulitis and a perforated colon. A portion of the colon was removed and a temporary colostomy constructed. Axelrad’s subsequent course of treatment included surgery to reconnect the colon, complicated by a severe drug reaction.

While the foregoing is undisputed, the parties disagree about much else, including (1) what medical history Axelrad reported, (2) when colon perforation occurred, (3) whether it was caused by Axelrad’s disease or Dr. Jackson’s treatment, (4) why Dr. Jackson did not come to the emergency room, and (5) whether Axelrad’s course would have been different had Dr. Jackson’s treatment been different. But the only conflict relevant to this appeal is the first. Although he alleged several grounds of contributory negligence at trial,3 Dr. Jackson now argues only that the court of appeals erred in disregarding evidence supporting one — that Axelrad neglected to report where his abdominal pain began.

The evidence showed that particular diseases are associated with pain in particular places in the abdomen — gallbladder disease in the right upper quadrant, appendicitis in the right lower quadrant, and diverticulitis in the left lower quadrant. While conceding a patient with diverticulitis should not be treated with enemas, Dr. Jackson testified he did not suspect diverticulitis as it is normally associated with fever, constipation, and pain in the left lower quadrant, while Axelrad reported no *653fever, diarrhea, and pain throughout his abdomen.

A patient cannot, of course, be negligent because his symptoms fail to fit the usual pattern. But at trial, Axelrad insisted he told Dr. Jackson his pain started in the left lower quadrant. The latter flatly denied it, and argued Axelrad made this claim for the first time at trial. In none of the histories taken by medical personnel during his treatment did Axelrad ever report that his pain began in the left lower quadrant, nor did he say so at his pretrial deposition.

It was up to the jurors to resolve this conflict in the testimony. But as the issues were submitted in broad form, how they decided it depends on what presumption applies when jurors issue a split verdict like they did here.

II. Presumptions Concerning a Split Verdict

As we said in City of Keller v. Wilson, when there are conflicts in testimony we must presume “jurors decided all of them in favor of the verdict if reasonable human beings could do so.” 4 But we also noted that evidence “may support one part of a verdict but not another.”5 Here, one version (that Axelrad reported where his pain began) supports the verdict against Dr. Jackson, while the other version (that he did not) supports the verdict against Axelrad. Reasonable jurors could not have believed both — Axelrad either did or did not report where his pain began. But because either answer would support part of the verdict, which one must we presume jurors believed?

The answer turns on the purpose of the presumption. It is not a prediction about what jurors actually did, as they often do not decide all conflicts one way. Here, for example, each party asserted several reasons why the other was negligent, so jurors did not have to agree on any one reason so long as they agreed on the result.6

Instead, the presumption serves to protect jury verdicts from second-guessing on appeal. As a result, it operates in favor of any jury finding a litigant asks an appellate court to set aside. Here, the court of appeals set aside only one jury finding— that Axelrad was negligent. To ensure that the appellate court did not substitute its own judgment for that of the jury, we must presume the jury decided all conflicts in favor of this finding.7

There are some cases in which this general rule will not apply. Courts cannot presume findings in favor of one part of a verdict if doing so creates an irreconcilable conflict with another.8 But that is not the case here, as there was evidence Dr. Jackson was negligent even if Axelrad failed to report all his symptoms. Accordingly, we must presume jurors found Axelrad did not report where his abdominal pain began.

III. Do Patients Have a Duty to Cooperate in Diagnosis?

We have never addressed whether a patient’s failure to give an accurate medical *654history can constitute negligence. But in Elbaor v. Smith, we recognized “a duty of cooperation which patients owe treating physicians who assume the duty to care for them.”9 There, we held the plaintiffs refusal to take prescribed antibiotics should have been submitted as a question of contributory negligence, not just a failure to mitigate damages.10 While Elbaor concerned cooperation with treatment rather than diagnosis, nothing in the opinion suggests a patient’s duty to cooperate applies to only one aspect of medical care.

A medical history, like many aspects of health care, is a cooperative venture requiring active participation by both doctor and patient. A patient’s statements to a doctor are critical, so critical they are protected by a privilege and made an exception to the hearsay rule.11 In most cases, medical care will never even occur unless patients present themselves for treatment and say what hurts. Patients have no duty to diagnose themselves (as doctors are licensed and paid to do that), but neither can they demand treatment for a condition they refuse to disclose. All the trial experts agreed patients have a duty to cooperate in diagnosis by giving an accurate medical history.

Of course, there are cases in which a patient’s condition is so obvious that cooperation is unnecessary, or so debilitating that it is impossible. But such cases do not suggest there should be no duty to cooperate; they suggest only that a patient’s condition may discharge it. Like any reasonable-person standard, a patient’s duty to cooperate requires only ordinary care under all the surrounding circumstances.12

The court of appeals attempted to limit a patient’s duty to cooperate in diagnosis to two instances: (1) responding truthfully to a physician’s questions, and (2) volunteering information known to be both significant and unknown to the doctor.13 While we agree a patient’s duty of cooperation could arise in those situations, we do not think it can be limited to them.

We have rejected similar efforts to compartmentalize negligence in rigid categories. For example, we have discarded categories like imminent-peril, last-clear-chance, and assumption-of-the-risk in favor of a general submission of comparative negligence.14 In products cases, we have refused to limit all allegations of a plaintiffs negligence to assumption of the risk or mere failure to discover a defect, as other kinds of negligence can fall in between.15

*655Given the infinite variety of patients, diseases, and circumstances surrounding medical care, an exhaustive list defining a patient’s duty to cooperate cannot be made. The specificity of a doctor’s questions and a patient’s responses will necessarily depend on many factors — the language skills of each, their specialized knowledge, the length of their relationship, the urgency of the situation, the frequency of previous examinations, the patient’s current condition, and so on.

Doctors are paid for their expertise, so diagnosis will always be primarily their responsibility. Thus, we agree with the court of appeals that in most cases an ordinary patient’s failure to report the origin of pain will be no evidence of negligence. But we disagree with the effort to confine this duty to precise categories, and turn next to whether this was an ordinary patient.

IV. Do Physicians As Patients Have a Different Duty?

The primary dispute between the parties in this appeal is whether Axelrad’s medical training should be taken into account in evaluating the history he gave. Axelrad did not object to the admission of such evidence; indeed he offered most of it himself. But he argues it cannot be considered in evaluating legal sufficiency because a physician as patient “should not be required to exercise any heightened degree of care above that of an ordinary person.”

This argument represents a misunderstanding of the nature of the physician-of-ordinary-prudence standard. It is not a higher standard of care (like strict liability, or the high-degree-of-care standard for common carriers16) or a lower standard of care (like gross negligence, or the willful-and-wanton standard for emergency care17). It is instead the ordinary-care standard, modified to instruct jurors that “under the same or similar circumstances” means they must consider a physician’s training. We said so in Hood v. Phillips, our seminal case defining a physician’s standard of care:

The burden of proof is on the patient-plaintiff to establish that the physician-defendant has undertaken a mode or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances. The circumstances to be considered include, but are not limited to, the expertise of and means available to the physician-defendant, the health of the patient, and the state of medical knowledge. Unless the mode or form of treatment is a matter of common knowledge or is within the experience of the layman, expert testimony will be required to meet this burden of proof.... Although the trial court refused to submit an issue regarding ordinary negligence, [the] evidence would raise a question of fact for the jury on the issue of ordinary negligence and such issue should have been submitted.18

The same point is made by the Restatement. Both the First and Second Restatements of Torts summarize the traditional reasonable-person standard as one taking into account both the knowledge *656and skills of an ordinary person and “such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has.”19 Both Restatements include an illustration specifically applying this standard to physicians, even when they are not acting in that capacity:

A is a physician. His child exhibits symptoms which A, because of his previous training and experience, should recognize as indicating that the child has scarlet fever. A fails to recognize them, and permits his child to go to school, where the child communicates the disease to B, another pupil. A is negligent in not recognizing the risk, although if he were a layman he might not be negligent.20

This principle — that ordinary prudence under the same or similar circumstances includes a party’s expertise — is not limited to physicians. As Prosser and Keeton note, it applies to many other skills:

[I]f a person in fact has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it. Experienced milk haulers, hockey coaches, expert skiers, construction inspectors, and doctors must all use care which is reasonable in light of their superior learning and experience, and any special skills, knowledge or training they may personally have over and above what is normally possessed by persons in the field.21

In the “expert skiers” case Prosser and Keeton mention, the federal Tenth Circuit noted that an expert-of-ordinary-prudence is merely an application of the reasonable-person standard, not a different one:

It would appear then that in order to satisfy the standard of care, a person having special knowledge must exercise a quantum of care which is commensurate with the circumstances, one of which is his or her special skill and training. An instruction of this kind is not easy to expound in a charge to a jury for the reason that it is capable of creating the impression that a double standard of care exists. In truth there is but one standard, that of reasonable prudence under the circumstances. The decision must be made on the basis of the surrounding circumstances, including the fact that the person involved is an expert.22

*657We have never applied the physician-of-ordinary-prudence standard to a plaintiffs negligence, but then we have never addressed a medical malpractice claim by a physician. Nor does it appear that any case addressing a patient’s failure to give an accurate medical history has ever done so.23 But generally “[t]he rules which determine the contributory negligence of a plaintiff are ... the same as those which determine the negligence of the defendant.”24 As jurors analyzing the “same or similar circumstances” must consider a physician’s special knowledge when a doctor is the defendant, it is hard to see why they should not do so when a doctor is the plaintiff.

Axelrad makes the same mistake in arguing that “the charge held Jackson to the standard of a prudent physician, but Axelrad to the standard of a prudent person.” The jury questions included a physician-of-ordinary-prudence charge as to Dr. Jackson and a person-of-ordinary-prudence charge as to Axelrad. As there was no objection, legal sufficiency must be examined by this charge.25 But for the reasons already discussed, a charge asking whether Axelrad exhibited ordinary prudence under the same or similar circumstances at least allowed jurors to consider his training, even if it did not instruct them to do so. In its expert-skier case, the Tenth Circuit held a person-of-ordinary-prudence charge was not prejudicial on just this basis.26 While a charge that prohibited jurors from considering Axel-rad’s special knowledge might require a different result,27 this charge did not.

Here, jurors could hardly have overlooked Axelrad’s special knowledge, as he emphasized it throughout the trial. Axel-rad designated himself as a testifying expert, and gave several expert opinions to the jury. In the first minute he was on the stand, he opined that Dr. Jackson was “a bad doctor,” explaining that “I felt compelled to bring this lawsuit against him ... because he’s not a good doctor.” Axelrad emphasized to the jury that he had passed judgment on other doctors as a member of state medical boards in both California and Texas. He estimated giving more than 150 depositions as an expert in medical negligence cases. While his practice was limited to psychiatry, he denied any unfamiliarity with abdominal complaints, arguing that during his four years as an emergency room physician he had “a lot of opportunities to examine abdomens.” Having presented himself to jurors as a person with superior knowledge, he cannot complain that jurors might have taken him at his word.

Moreover, Axelrad insisted he had reported that his pain originated in the left lower quadrant, which he acknowledged was a classic sign of diverticulitis. As defense counsel put it with some embell*658ishment in his opening argument, “our grandmothers could all diagnose diverticulitis if you came in and said, ‘I have left lower quadrant pain.’ ” Taking this position strengthened Axelrad’s case against Dr. Jackson if jurors credited it. But if they did not, it strengthened an inference that he failed to exercise ordinary care when he failed to mention it.

The court of appeals pointed out that Axelrad never admitted knowing the significance of where his abdominal pain started.28 But of course litigants rarely admit negligence on their own part. The question here is whether there was evidence from which reasonable jurors could infer Axelrad either knew or should, have known he needed to report this information.29

The court of appeals also found it implausible that a sick patient would fail to report a significant symptom,30 but it is no more implausible than that a doctor would fail to avoid harming a patient and getting sued. The defense presented evidence that haste and impatience sometimes caused Axelrad to downplay his symptoms, fail to follow doctors’ orders, and testify to checkups that in fact never occurred. Whether plaintiffs or defendants, people sometimes make mistakes, and it is generally up to the jury to decide who did.31

Again, there will be cases in which a patient is a doctor with no special knowledge of a particular disease, or so sick as to be unable to use it. But whether either was the case here was hotly disputed. While Dr. Jackson asked only general questions about Axelrad’s condition (“Tell me exactly what is going on”), we cannot say he was required to ask a fellow physician the same questions he would ask everyone else. Similarly, while most patients might not be expected to volunteer where the pain began, we cannot say Axel-rad was not required to say something more. As there was evidence from which jurors could have found both doctor and patient were at fault in diagnosing this situation, we hold the court of appeals erred in disregarding one part of the jury’s verdict.

Y. Other Points and Conclusion

Axelrad asserts two cross-points. In the first, he argues there was no evidence any failure to report where his pain began proximately caused his injuries. But Axelrad’s own expert testified “the only reasonable explanation” for the colon perforation and subsequent events was “the administration of that enema.” Dr. Jackson testified had he known Axelrad’s pain began in the left lower quadrant, he would have suspected diverticulitis and not prescribed an enema. Accordingly, jurors could have found a causal connection.

Second, Axelrad argues the trial court erred by admitting unreliable testimony by Dr. Mary Schwartz, a board certified pathologist who holds an endowed chair at Baylor Medical School, that tissue samples from Axelrad’s first surgery showed his bowel perforation had occurred before he ever called Dr. Jackson. While Dr. Schwartz admitted she was unfamiliar with the disease process of diverticulitis, we agree with the court of appeals’ detailed *659analysis that her opinions were reliable,32 and thus do not repeat them.

Accordingly, for the reasons stated above we reverse the court of appeals’ judgment and remand to that court for factual sufficiency review.

SHIRLEY S. ABRAHAMSON, J.

¶ 1. This is a review of a published decision of the court of appeals affirming a judgment and order of the Circuit Court for Juneau County, John R Roemer, Judge.1

f 2. This case arises from the collision of a passenger automobile driven by Ronald J. Dakter, the plaintiff,2 and a 65-foot semi-trailer truck operated by Dale Cavallino, the defendant.3 After a 10-day trial, *745the jury found the defendant 65 percent causally negligent and the plaintiff 35 percent causally negligent and assessed damages at $1,097,955.86 for the plaintiff and $63,366 for the plaintiffs wife.

¶ 3. The defendant raises only one question of law for our consideration: Was the truck driver negligence instruction given to the jury on the standard of care applicable to the defendant as the operator of a semi-trailer truck erroneous, such that the defendant is entitled to a new trial?

¶ 4. The truck driver negligence instruction that is the subject of the defendant's challenge provided in relevant part as follows:

At the time of the accident, the defendant, Dale Cavallino was a professional truck driver operating a semi tractor-trailer pursuant to a commercial driver's license issued by the State of Wisconsin. As the operator of a semi tractor-trailer, it was [the defendant's] duty to use the degree of care, skill, and judgment which a reasonable semi truck driver would exercise in the same or similar circumstances having due regard for the state of learning, education, experience, and knowledge possessed by semi truck drivers holding commercial driver's licenses. A semi truck driver who fails to conform to the standard is negligent. The burden is on the plaintiff to prove that [the defendant] was negligent.

*746¶ 5. The defendant asserts that the truck driver negligence instruction was erroneous because it directed the jury to consider the defendant's special knowledge and skill as a semi-trailer truck driver when determining whether the defendant was negligent. According to the defendant, an instruction regarding an actor's special knowledge and skill should not be given in "mine-run" motor vehicle negligence cases like the instant case; it should be given only in professional negligence cases. The defendant contends that by giving an instruction regarding the defendant's special knowledge and skill, the circuit court imposed a heightened standard of care on him. This, says the defendant, was prejudicial error entitling him to a new trial.

¶ 6. In contrast, the plaintiff contends that the truck driver negligence instruction directed the jury to take the special knowledge and skill possessed by professional semi-trailer truck drivers into account only in order to determine whether the defendant met the standard of ordinary care. In the plaintiffs view, the truck driver negligence instruction did not impose a heightened standard of care on the defendant and was not erroneous.

¶ 7. The circuit court sided with the plaintiff, entering a judgment on the verdict in favor of the plaintiff and denying the defendant's post-verdict motions.

¶ 8. The court of appeals affirmed the judgment and order of the circuit court. The court of appeals explained that it did not consider the challenged jury instruction a misstatement of the law:

[I]n evaluating whether an actor has acted as a reasonable person would, jurors may consider the actor's superior knowledge or skills when the knowledge or *747skills give the actor an ability to avoid injury or damage to others. If someone "has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonable careful person."4

¶ 9. The court of appeals further explained that although the truck driver negligence instruction was not incorrect, a jury could possibly have misinterpreted the instruction as imposing a higher standard of care on semi-trailer truck drivers than that applied to other drivers:

[W]e see at least some danger that the truck driver instruction could have been interpreted by the jury to suggest that [the defendant] should be held to a different, higher standard of care than other drivers because he is a professional truck driver.... If understood this way, it would state the legal doctrine incorrectly.5

¶ 10. The court of appeals ultimately concluded that it was "at least as likely as not that jurors aiming to apply the [truck driver negligence] instruction would have hit the mark by focusing on evidence of [the defendant's] superior knowledge and skills, and not missed the mark by holding him to a separate, higher truck driver standard of care."6

¶ 11. Nevertheless, the court of appeals opted to assume, without deciding, that the truck driver negligence instruction was erroneous. It then denied the defendant relief, concluding that any error in the challenged jury instruction was not prejudicial.

*748¶ 12. We conclude that the circuit court did not err in giving the truck driver negligence instruction. The truck driver negligence instruction did not misstate the law and was not misleading. The defendant's arguments to the contrary are not persuasive, and the defendant is not entitled to a new trial. Accordingly, although our reasoning differs, we affirm the decision of the court of appeals.

I

¶ 13. Many details about the collision that spawned the instant litigation remain in dispute. The following description of the collision focuses on the uncontested facts.

¶ 14. The collision took place on May 29, 2008, at the intersection of State Trunk Highway 80 (running north/south) and State Trunk Highway 82 (running east/west). This intersection is located in Elroy, Juneau County, Wisconsin.

¶ 15. The plaintiff was driving a passenger automobile northbound on Highway 80. He intended to turn left onto Tilmar Street, which is the portion of Highway 82 running west of Highway 80. He approached the intersection with his turn signal on and stopped.

¶ 16. Wyman Hoiland, who is not a party to this lawsuit, was driving a van southbound on Highway 80 and intended to turn left onto Highway 82. Hoiland approached the intersection with his turn signal on and stopped. His vehicle was opposite the plaintiffs vehicle in the intersection and was in front of the defendant's semi-trailer truck.

¶ 17. The defendant, who had a commercial driver's license issued by the State of Wisconsin and had driven a semi-trailer truck for 31 years, was driving a *74965-foot semi-trailer truck southbound on Highway 80. The defendant intended to continue straight on Highway 80.

f 18. As the defendant approached the intersection, Hoiland may have turned left, permitting the defendant to remain in his lane and continue straight. Alternatively, Hoiland may have remained in the intersection waiting to turn left, leading the defendant to switch into the right-hand lane in order to drive around Hoiland and continue straight.

¶ 19. In any event, it is undisputed that the plaintiff attempted to execute a left turn onto Til mar Street and collided with the defendant's semi-trailer truck. The plaintiff sustained serious injuries.

¶ 20. The plaintiff filed suit against the defendant, asserting that the defendant's negligence caused the collision.

¶ 21. Before trial, the parties agreed that the usual standard of ordinary care applies to semi-trailer truck drivers. They disagreed, however, about whether the jury should hear expert testimony regarding the special knowledge and skill possessed by semi-trailer truck drivers.

¶ 22. The circuit court agreed with the position of both parties that the standard of ordinary care applies to semi-trailer truck drivers, stating as follows: "I don't believe there is a heightened standard of care. I believe all of us are required to maintain our speed, maintain our management, control of our vehicles, and also to maintain a proper look-out."

¶ 23. The circuit court went on to explain that with regard to semi-trailer truck drivers, ordinary care means the care "a reasonable and prudent truck driver would use under the same or similar circumstances." *750Accordingly, the circuit court ruled that expert testimony regarding the knowledge and skill possessed by semi-trailer truck drivers was admissible.

¶ 24. Three expert witnesses testified regarding the safety standards and practices that govern semitrailer truck drivers.

¶ 25. The plaintiff called Charles Collins, a retired truck driving safety instructor for a driver training program at a technical college, as an expert witness. Collins explained, among other things, that the defendant was driving his semi-trailer truck with an empty trailer and that "[i]t takes longer to stop with an empty trailer." Collins also explained that the pavement was wet and that "[w]hen the pavement is wet, it is accepted in all literature, textbooks, [and] videos that you must reduce your speed by a third," which the defendant did not do.

¶ 26. The plaintiff also called Andrew Sievers, a safety consultant, as an expert witness. Sievers testified about defensive driving techniques for semi-trailer truck drivers, including the "cushion of safety" (that is, the distance) that semi-trailer truck drivers should maintain between the front of their trucks and the back of the vehicles in front of them. Sievers opined that the defendant had not been maintaining a proper cushion of safety when the collision occurred. Sievers also explained that an intersection is "the location where a truck driver has the most likelihood to be involved in an accident, and because of that. . . the truck driver should be extra cautious and should reduce their speed. . . ." Sievers testified that in his opinion, the defendant was driving at an unsafe speed considering that he was entering an intersection in rainy weather.

*751¶ 27. The defendant called William Emerick, a safety consultant, as an expert witness. Emerick discussed the importance of maintaining hazard awareness and using common sense when operating a semitrailer truck. Emerick also asserted that driving as slowly as official safety standards require can be dangerous, even when approaching an intersection in rainy weather, because it can cause "traffic backup" and is "something people wouldn't expect." Emerick testified that in his view, when the accident occurred, the defendant was driving his truck in conformity with normal safe driving practices and industry standards for drivers of commercial motor vehicles.

¶ 28. When the circuit court took up the issue of jury instructions near the close of trial, the parties revisited the subject of the special knowledge and skill possessed by semi-trailer truck drivers. After lengthy argument, the circuit court gave the truck driver negligence instruction, an instruction specific to the defendant as the operator of a semi-trailer truck.

¶ 29. The jury returned a verdict in favor of the plaintiff. The defendant filed post-verdict motions seeking a new trial. The circuit court denied the defendant's post-verdict motions and entered a judgment on the verdict in favor of the plaintiff. The court of appeals affirmed.

II

¶ 30. Because the defendant challenges a jury instruction, we first recite the standard of review applicable to a challenge to jury instructions.

¶ 31. A circuit court has broad discretion in crafting jury instructions based on the facts and circum*752stances of the case.7 A circuit court is required, however, to exercise its discretion "to fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence."8

¶ 32. We review jury instructions as a whole to determine whether "the overall meaning communicated by the instructions was a correct statement of the law . . . ."9 Whether the circuit court erred by stating the law incorrectly or in a misleading manner constitutes a question of law this court decides independently of, but benefiting from, the analyses of the circuit court and court of appeals.10

¶ 33. Even if the truck driver negligence instruction was in error, the defendant is not necessarily entitled to a new trial. Erroneous jury instructions warrant reversal and a new trial only when the error is prejudicial.11 Whether an error is prejudicial is a question of law this court decides independently of, but benefiting from, the analyses of the circuit court and court of appeals.12

*753III

¶ 34. Our analysis of the truck driver negligence instruction has three parts.

¶ 35. First, we set forth the negligence principles that govern the instant dispute, namely the superior knowledge rule, which requires an actor with special knowledge or skill to act commensurate with that knowledge or skill, and the profession or trade principle, which requires an actor engaged in a profession or trade to act as a reasonable member of such profession or trade would act under the same or similar circumstances.

¶ 36. Second, we determine that these two negligence principles apply to the defendant and thus that the truck driver negligence instruction did not misstate the law.

¶ 37. Third, we determine that in the context of the jury instructions as a whole, the truck driver negligence instruction was not misleading.

¶ 38. Because the truck driver negligence instruction was neither incorrect nor misleading, we conclude that the circuit court did not err. We therefore need not and do not address the issue of prejudice.

A

¶ 39. We begin with well-settled principles of negligence.

¶ 40. Negligence is the failure to exercise ordinary care under the circumstances, that is, the failure to exercise "that degree of care which under the same *754or similar circumstances the great mass of mankind would ordinarily exercise."13

¶ 41. The standard of ordinary care is an objective standard; it is the care that would be exercised by a reasonable actor under the circumstances.

¶ 42. The circumstances that demarcate the bounds of ordinary care in a particular case include any relevant special knowledge or skill the actor brings to bear.14 This principle is sometimes called the "superior knowledge rule."15

¶ 43. Restatement (Second) of Torts § 289, at 41 (1965) sets forth the superior knowledge rule as follows: "The actor is required to recognize that his conduct involves a risk of causing an invasion of another's interest if a reasonable man would do so while exercising . . . (b) such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has."16

*755¶ 44. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 12, at 141 (2010) describes the superior knowledge rule as follows: "If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person."17

¶ 45. In the seminal Wisconsin case of Osborne v. Montgomery, 203 Wis. 223, 234 N.W. 372 (1931), this court made clear that the superior knowledge rule applies in Wisconsin.

1 46. The Osborne court first defined negligence as conduct that foreseeably creates an unreasonable risk of harm to the interests of another, stating:

Every person is negligent when, without intending to do any wrong, he does such an act or omits to take such a precaution that under the circumstances present he, as an ordinarily prudent person, ought reasonably to foresee that he will thereby expose the interests of another to an unreasonable risk of harm.18

¶ 47. The Osborne court then declared: "If the actor in a particular case in fact has superior perception or possesses superior knowledge, he is required to exercise his superior powers in determining whether or not his conduct involves an unreasonable risk of injury to the interests of another . . . ,"19 Thus, pursuant to the superior knowledge rule adopted in Osborne, *756an actor with special knowledge or skill meets the standard of ordinary care by employing that special knowledge or skill.

¶ 48. Various tort texts provide similar explanations of the superior knowledge rule. See, for example, the following:

• "The superior knowledge rule can be explained by saying that the actor's superior knowledge is one of the 'circumstances' that a reasonable person would take into account or by saying that a reasonable person will use all the knowledge he actually has in dealing with a recognizable risk.....So it is right to tell a jury that a reasonable person will use the relevant special knowledge he has, but not right to tell the jury that he is held to a higher standard of care." 1 Dan B. Dobbs et al., The Law of Torts § 132, at 417 (2nd ed. 2011) (footnotes omitted).

• "[I]f a person in fact has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it. Experienced milk haulers, hockey coaches, expert skiers, construction inspectors, and doctors must all use care which is reasonable in light of their superior learning and experience, and any special skills, knowledge or training they may personally have over what is normally possessed by persons in the field." W. Page Keeton et al., Prosser and Keaton on Torts § 32, at 185 (5th ed. 2000) (footnotes omitted).

• "In addition to the knowledge that may be imputed to a reasonable person, a person's actual knowledge and skills may be taken into account when the level of the person's knowledge or skills exceeds the average." 1 J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 3:21 (2d ed. 1990).

*757¶ 49. These texts neither bind this court nor declare the law of Wisconsin. They do, however, support the superior knowledge rule adopted in Osborne.

¶ 50. The parties' briefs and the court of appeals opinion spend much time discussing the superior knowledge rule and debating whether it applies to the defendant. A close examination of the briefs and the court of appeals opinion, however, reveals that the parties and the court of appeals have at times conflated the superior knowledge rule with a related negligence principle that applies to individuals engaged in a profession or trade. We turn to that principle now.

¶ 51. Ordinarily, actors engaged in a profession or trade must exercise the knowledge and skill that a reasonable member of that profession or trade would exercise under the same or similar circumstances.20 In Kerkman v. Hintz, 142 Wis. 2d 404, 419-20, 418 N.W.2d 795 (1988), for example, this court stated that "a chiropractor must exercise the degree of care, diligence, judgment, and skill which is exercised by a reasonable chiropractor under like or similar circumstances."21

*758¶ 52. Various Wisconsin pattern jury instructions regarding the standard of ordinary care applicable to those in particular professions and trades illustrate the principle that a person engaged in a profession or trade must act commensurate with the knowledge and skill a reasonable member of that profession or trade possesses.

¶ 53. For example, the Wisconsin pattern jury instruction titled "Negligence: Building Contractor" defines the ordinary care standard applied to building contractors as the degree of care exercised by a reasonably prudent and skilled contractor engaged in a similar construction project. Thus, a jury must consider the knowledge and skill possessed by building contractors to determine whether a particular contractor's conduct met the standard of ordinary care.

¶ 54. The pattern jury instruction applicable to building contractors provides in full as follows:

A building contractor has a duty to exercise ordinary care in the construction or remodeling of a building. This duty requires such contractor to perform work with the same degree of care and skill and to provide such suitable materials as are used and provided by contractors of reasonable prudence, skill, and judgment in similar construction.22

¶ 55. Likewise, the pattern jury instruction titled "Negligence of Insurance Agent" defines the ordinary care standard applied to insurance agents by *759reference to the care, skill, and judgment usually-employed by agents licensed to sell insurance in Wisconsin. Accordingly, a jury must consider the knowledge and skill possessed by licensed insurance agents to determine whether a particular agent's conduct met the standard of ordinary care.

¶ 56. This pattern jury instruction reads in relevant part as follows: "An insurance agent, such as (defendant), must use the degree of care, skill, and judgment which is usually exercised under the same or similar circumstances by insurance agents licensed to sell insurance in Wisconsin."23

¶ 57. These are just two of several examples of Wisconsin's adoption of the profession or trade principle. The profession or trade principle is similarly reflected in pattern jury instructions regarding the standard of ordinary care applicable to teachers,24 chiropractors,25 doctors,26 nurses and licensed tech*760nicians,27 dentists,28 and lawyers.29

¶ 58. The profession or trade principle and the superior knowledge rule are closely related. Both recognize that a reasonable actor will use any relevant special knowledge or skill the actor possesses, including the knowledge and skill the person possesses on account of his or her occupation.30

*761¶ 59. The two doctrines also work in combination in certain cases: An actor engaged in a profession or trade who has knowledge or skill superior to that of a reasonable person within that profession or trade must employ such knowledge or skill in order to meet the standard of ordinary care.

¶ 60. Dobbs' text on torts explains the overlapping relationship between these two negligence doctrines as follows:

Superior or specialized knowledge or skill. A reasonable person will act in the light of (a) knowledge shared by the community generally and also (b) information, knowledge and skill that he himself has that is not generally known and that reasonable people would not ordinarily have. . . .

The superior knowledge rule has obvious application to professionals like physicians and surgeons, who are held to possess the skills and knowledge of others in good standing in their profession. A physician who knows more than a layman must use that additional knowledge in the practice of medicine. But the point reaches even further. A physician who knows more than other physicians is also expected to use that special knowledge. .. . The principle applies equally to any kind of skill or experience.

Reasonable person standard and superior knowledge. The superior knowledge rule can be explained by saying that the actor's superior knowledge is one of the "circumstances" that a reasonable person would take into account or by saying that a reasonable person will use all the knowledge he actually has in dealing with a recognizable risk. Either way, the standard of care, that of the reasonable person under the same or similar circumstances, remains the same. So it is right to tell a jury that a reasonable person will use the relevant *762special knowledge he has, but not right to tell the jury that he is held to a higher standard of care.31

¶ 61. Importantly, although both the superior knowledge rule and the profession or trade principle describe the circumstances the jury is to consider in determining negligence, neither doctrine sets forth a heightened standard of care.32

¶ 62. In sum:

• Under the superior knowledge rule, a person with special knowledge or skill is required to exercise the care a reasonable person with such special knowledge or skill would exercise under the same or similar circumstances.

• Under the profession or trade principle, a person engaged in a profession or trade is required to exercise the care a reasonable member of the profession or trade would exercise under the same or similar circumstances.

• Regardless of whether the jury applies the superior knowledge rule, the profession or trade principle, both doctrines, or neither doctrine, the standard of care remains that of ordinary care.

*7631 63. With these negligence principles in mind, we turn to the truck driver negligence instruction, which is the subject of the defendant's challenge in the present case.

B

1 64. We now explore whether the superior knowledge rule and the profession or trade principle apply to the defendant in the instant case. We conclude that they do and thus that the truck driver negligence instruction did not misstate the law.

¶ 65. The truck driver negligence instruction required the jury to consider the defendant's special knowledge or skill as a "professional" semi-trailer truck driver, thereby incorporating both the superior knowledge rule and the profession or trade principle. The instruction provided as follows:

At the time of the accident, the defendant, Dale Cavallino, was a professional truck driver operating a semi tractor-trailer pursuant to a commercial driver's license issued by the State of Wisconsin. As the operator of a semi tractor-trailer, it was [the defendant's] duty to use the degree of care, skill, and judgment which a reasonable semi truck driver would exercise in the same or similar circumstances having due regard for the state of learning, education, experience, and knowledge possessed by semi truck drivers holding a commercial driver's license. A semi truck driver who fails to conform to the standard is negligent. The burden is on the plaintiff to prove that [the defendant] was negligent.

¶ 66. The defendant asserts, however, that neither the superior knowledge rule nor the profession or trade principle applies to him.

*764¶ 67. The defendant concedes that an individual must undergo specific training and testing to obtain a commercial driver's license and operate a semi-trailer truck. Nevertheless, the defendant contends that the jury cannot take into account the special knowledge or skill required to operate a semi-trailer truck. According to the defendant, "all users of the roadway have the same duty of ordinary care regardless of their driving experience or skills." In the defendant's view, permitting a jury to "consider a driver's individual skill, experience, and training would result in an unworkable subjective standard of care with 'ceaseless variations.' "33

¶ 68. The defendant further contends that the profession or trade principle applies only in professional malpractice cases, that is, in situations in which the actor is providing a highly specialized professional service to the plaintiff that involves a unique standard of care. The defendant points out that he was not providing a service to the plaintiff and that semi*765trailer truck driving is not the kind of highly specialized occupation normally classified as a profession.

¶ 69. We disagree with the defendant and conclude that both the superior knowledge rule and the profession or trade principle apply to the defendant. We review them in turn.

¶ 70. Insofar as the defendant argues that the superior knowledge rule does not apply to semi-trailer truck drivers, he is plainly incorrect. The skill and knowledge required to drive a semi-trailer truck are not part of the "ordinary equipment" of a reasonable person.34 Rather, they are the result of acquired learning and experience.

¶ 71. The defendant was required to, and did, undergo specialized testing and obtain a specialized license to demonstrate that he possesses the special knowledge and skill necessary to safely operate a semi-trailer truck. The defendant's assertion that this special knowledge and skill could not be considered by the jury is not cogent.

| 72. The statutes and regulations applicable to semi-trailer trucks and semi-trailer truck drivers bolster our conclusion that the superior knowledge rule applies to the defendant.

¶ 73. Semi-trailer trucks are commercial motor vehicles. Under Wis. Stat. § 343.05(2) (2007-08),35 a person can operate a commercial motor vehicle only if certain conditions are met. Among other requirements, *766the person must carry a commercial driver's license that is not revoked, suspended, canceled, or expired.36

¶ 74. Federal regulations likewise dictate that those operating commercial motor vehicles must generally carry a commercial driver's license.37 Federal regulations also specify the knowledge and skills drivers must possess in order to obtain such licensure. Three provisions are particularly relevant in the instant case.

¶ 75. First, 49 C.F.R. § 383.110 provides that to ensure safety, commercial motor vehicle drivers are required to have the baseline level of knowledge and skills set forth in subsequent provisions. It states in full as follows:

All drivers of [commercial motor vehicles] must have the knowledge and skills necessary to operate a [commercial motor vehicle] safely as contained in this subpart. The specific types of items that a State must include in the knowledge and skills tests that it administers to [commercial driver's license] applicants are included in this subpart.

¶ 76. Second, 49 C.F.R. § 383.111 sets forth and explains 20 areas in which commercial motor vehicle operators are required to have specified knowledge to obtain a commercial driver's license. These areas include safe operations regulations, speed management, extreme driving conditions, hazard perceptions, and emergency maneuvers.38

*767¶ 77. Third, 49 C.F.R. § 383.113 enumerates the skills a commercial motor vehicle operator must possess to obtain a commercial driver's license. These skills include identifying safety-related vehicle parts, like the engine compartment and brakes;39 inspecting and operating air brakes;40 and safely driving the vehicle by, for example, maintaining "a safe following distance depending on the condition of the road."41

¶ 78. These state statutes and federal regulations demonstrate that the conduct of a semi-trailer truck driver should be assessed by reference to the conduct of a reasonable person with the special competence required of semi-trailer truck drivers — not by reference to the conduct of a reasonable, ordinary driver.

¶ 79. We turn to the profession or trade principle, which was incorporated into the truck driver negligence instruction.

¶ 80. The Wisconsin pattern jury instructions discussed previously demonstrate that the profession or trade principle applies not merely to highly specialized professionals, as the defendant asserts, but more broadly to those engaged in occupations that require the exercise of "acquired learning, and aptitude developed by special training and experience."42

¶ 81. Restatement (Second) of Torts § 299A is also helpful in determining what constitutes a profession or trade. A comment to § 299A references a wide range of occupations (including plumbers, carpenters, *768and blacksmiths) to which the profession or trade principle generally applies. This comment reinforces our conclusion that the profession or trade principle has broader applicability than the defendant lets on. It governs an actor in the performance of his or her occupation so long as reasonably performing that occupation requires acquired learning and aptitude developed by special training and experience.43

¶ 82. Clearly, driving a semi-trailer truck constitutes a profession or trade within the context of the profession or trade principle. It was therefore appropriate for the jury to evaluate the defendant's conduct by reference to the conduct of a reasonable semi-trailer truck driver.

¶ 83. For the reasons set forth, we conclude that the truck driver negligence instruction did not misstate the law.

¶ 84. A circuit court can err in instructing the jury not only by misstating the law but also by stating the law in a manner likely to mislead the jury. Accordingly, we now turn to the possibility (discussed by the court of appeals) that the jury misinterpreted the truck driver negligence instruction.

*769c

¶ 85. The defendant's basic contention is that even if the truck driver negligence instruction did not technically misstate the law, it likely misled the jury and was therefore prejudicial error.

¶ 86. The defendant argues that the truck driver negligence instruction "had the practical effect of telling the jury that [the defendant] had a higher standard of care because he held a [commercial driver's license]."44 The defendant points out that within the same negligence instruction, the circuit court set forth the standard of ordinary care applicable to the plaintiff. The implication, says the defendant, was that the jury should apply a heightened standard of care to the defendant.

¶ 87. We disagree with the defendant. The truck driver negligence instruction was not a stand-alone instruction. It was part of lengthy set of negligence instructions given by the circuit court. We do not evaluate the truck driver negligence instruction in isolation. We review the jury instructions as a whole to determine whether they fully and fairly convey the applicable rules of law to the jury.45

*770¶ 88. Relevant here are several paragraphs of the negligence instructions in which the circuit court (1) introduced the special verdict questions pertaining to negligence; (2) introduced the concepts of negligence and of ordinary care; (3) provided specific instruction regarding the standard of care applicable to the defendant as a semi-trailer truck driver; and (4) elaborated upon the standard of ordinary care, with particular attention to highway driving.46

¶ 89. These paragraphs of the negligence instructions provided as follows:

Question number 1 and question number 3 of the verdict asked whether or not [the defendant] and [the plaintiff] were or were not negligent. These questions read as follows, question number 1, was [the defendant] negligent in the operation of his vehicle immediately before or during the accident, yes or no. Question number 3, was [the plaintiff] negligent in the operation of his automobile immediately before or during the accident, yes or no. I will now instruct you of the definition of negligence and the various rules and safety statutes you must apply to determine whether or not either [the defendant] or [the plaintiff] or both were negligent in this case.

A person is negligent when they fail to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person not using ordinary care is negligent, if the person without intending to do harm does something or fails to do something that a reasonable person *771would recognize as creating an unreasonable risk of injury or damage to a person or property. At the time of the accident, [the defendant] was a professional truck driver operating a semi tractor-trailer pursuant to a commercial driver's license issued by the State of Wisconsin. As the operator of a semi tractor-trailer, it was [the defendant's] duty to use the degree of care, skill, and judgment which a reasonable semi truck driver would exercise in the same or similar circumstances having due regard for the state of learning, education, experience, and knowledge possessed by semi truck drivers holding commercial driver's licenses. A semi truck driver who fails to conform to the standard is negligent. The burden is on the plaintiff to prove that [the defendant] was negligent.

Every person in all situations has a duty to exercise ordinary care for his or her own safety. This does not mean that a person is required at all hazards to avoid injury. A person must, however, exercise ordinary care to take precautions to avoid injury to himself or herself. A person must exercise ordinary care to employ his sense of sight and hearing so as to become aware of the existence of danger to him or her. A failure to do so is negligence. It is the duty of every person to exercise ordinary care, and to recognize and appreciate all dangers that are open and obvious to him, or which [would] have been recognized and appreciated by a reasonable, prudent person under the same or similar circumstances. That the warning of the existence of danger was not seen or was not heard does not free one from negligence. In addition, one who looks and fails to see or listens and fails to hear a warning of danger, which under like or similar circumstances would have been seen or would have been heard by a reasonable, prudent person is as guilty of negligence as one who did not look or listen at all. However, a person is not bound to see every hazard or danger in his or her pathway even though they should be plainly observable or to remember the existence of every condition of *772which a person has had knowledge. A person is only-required to act as a reasonable, prudent person would act under the same or similar circumstances.

To be free of negligence, a person must exercise ordinary care in choosing his or her course of conduct in the pursuit of that choice. A person is not guilty of negligence in making the choice of conduct if the person has no knowledge that one course of conduct carries a greater hazard than another provided that such lack of knowledge is not the result of a person's failure to exercise ordinary care. Every user of the highway has the right to assume that every other user of the highway will obey the rules of the road. However, a person cannot continue to make that assumption if the person becomes aware or in the exercise of ordinary care, ought to be aware that another user of the highway by his or her conduct is creating a dangerous situation. Under such circumstances, a person using the highway must use ordinary care to avoid the danger. A driver must use ordinary care to keep a careful look out ahead and about him or her for the presence of vehicles, movement, objects or pedestrians, or may be within approaching the driver's course of travel. In addition, the driver has to use ordinary care to look out to the condition of the highway ahead, for traffic signs, markers, obstructions to vision, and other things that might warn of possible danger. The failure to use ordinary care to keep a careful look out is negligence.

¶ 90. The defendant's contention that the truck driver negligence instruction likely misled the jury is untenable in light of the numerous statements, made throughout the portion of the negligence instructions set forth above, that the standard of ordinary care applies to all drivers.

*773¶ 91. Particularly relevant here are the portions of the jury instructions immediately preceding and immediately following the truck driver negligence instruction.

¶ 92. Right before giving the truck driver negligence instruction, the circuit court instructed the jury that negligence is the failure to exercise ordinary care. The circuit court did not limit this statement to the plaintiff in any way; it stated the standard of ordinary care in general terms, as applied to everyone.

¶ 93. The circuit court's exact words, taken from the pattern jury instruction on negligence, were as follows:

A person is negligent when they fail to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person not using ordinary care is negligent, if the person without intending to do harm does something or fails to do something that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.

¶ 94. Right after giving the truck driver negligence instruction, the circuit court reiterated the standard of ordinary care and then elaborated upon the concept of negligence in the context of highway driving.

¶ 95. The circuit court stated as follows:

It is the duty of every person to exercise ordinary care, and to recognize and appreciate all dangers that are open and obvious to him, or which [would] have been recognized and appreciated by a reasonable, prudent person under the same or similar circumstances. . ..

*774 Every user of the highway has the right to assume that every other user of the highway will obey the rules of the road. However, a person cannot continue to make that assumption if the person becomes aware or in the exercise of ordinary care, ought to be aware that another user of the highway by his or her conduct is creating a dangerous situation. Under such circumstances, a person using the highway must use ordinary care to avoid the danger.

(Emphasis added.)

¶ 96. Read as a whole, the message conveyed by the jury instructions was clear: The standard of ordinary care applies to both the plaintiff and the defendant. Ordinary care is the care a reasonable person would exercise under the circumstances. In the instant case, the circumstances relevant to a determination of whether the defendant acted reasonably include the fact that at the time of the collision, the defendant was engaged in a profession or trade (semi-trailer truck driving) and possessed the special knowledge and skill required of semi-trailer truck drivers.

¶ 97. Could the truck driver negligence instruction have been more clearly worded? Perhaps. But perfection is not what the law requires. An appellate court need decide only whether "the overall meaning communicated by the instruction. . . was a correct statement of the law[ ] . . . ."47 In the instant case, the overall meaning communicated by the totality of the negligence instructions was a correct statement of the law and was not misleading.

*775¶ 98. In sum, we conclude that the circuit court did not err in giving the truck driver negligence instruction. The truck driver negligence instruction did not misstate the law and was not misleading. The defendant's arguments to the contrary are not persuasive, and the defendant is not entitled to a new trial.

By the Court. — The decision of the court of appeals is affirmed.

PATIENCE DRAKE ROGGENSACK, C.J.

¶ 99. (concurring). The central issue presented is whether the circuit court erred by giving the jury a special skills instruction because Dale L. Cavallino held a commercial license to operate the semi-truck at the time of the accident.1 I conclude that the circuit court's special skills instruction was erroneous because it incorrectly stated the law. However, I also conclude that the error was harmless. Accordingly, I would affirm the court of appeals, and although I do not join the majority opinion, I respectfully concur.

I. BACKGROUND

¶ 100. The majority opinion fully sets out the facts that underlie the dispute before us. Therefore, I will not repeat them.

II. DISCUSSION

A. Standard of Review

¶ 101. Challenges to jury instructions present questions of law for our independent review. State v. Beamon, 2013 WI 47, ¶ 18, 347 Wis. 2d 559, 830 *776N.W.2d 681. Whether an erroneously given instruction is harmless error also presents a question of law that we review independently. State v. Nelson, 2014 WI 70, ¶ 18, 355 Wis. 2d 722, 849 N.W.2d 317.

B. Jury Instructions

¶ 102. The defendant, Cavallino,2 argues that the special skills instruction was erroneous because it directed the jury to consider Cavallino's superior knowledge and skill as a licensed semi-truck driver. According to Cavallino, the circuit court erred because the court gave an instruction regarding superior knowledge and skill similar to that employed in professional negligence cases, rather than the standard negligence instruction that is customarily given in vehicular negligence cases. Cavallino argues that the circuit court's instruction imposed a heightened standard of care on him, and that doing so was prejudicial error entitling him to a new trial.

¶ 103. The plaintiff, Ronald J. Dakter,3 contends that the instruction directed the jury to take superior knowledge and skill of professional semi-truck drivers into account so that the jury could determine whether Cavallino met the standard of ordinary care under the circumstances.

1. General principles for instructions

¶ 104. "The purpose of a jury instruction is to fully and fairly inform the jury of a rule or principle of law applicable to a particular case." Nommensen v. *777 Am. Cont'l Ins. Co., 2001 WI 112, ¶ 36, 246 Wis. 2d 132, 629 N.W.2d 301. Jury instructions "explain what the law means to persons who usually do not possess law degrees." Id. (internal quotation marks and citation omitted).

¶ 105. "A circuit court has broad discretion when instructing a jury." Id., ¶ 50 (citing White v. Leeder, 149 Wis. 2d 948, 954, 440 N.W.2d 557 (1989)). A circuit court appropriately exercises its discretion when the instruction correctly states the law and comports with the facts of the case. Weborg v. Jenny, 2012 WI 67, ¶ 42, 341 Wis. 2d 668, 816 N.W.2d 191; White, 149 Wis. 2d at 954—55. However, even if the circuit court erroneously exercises its discretion, an "erroneous jury instruction warrants reversal and a new trial only if the error was prejudicial." Kochanski v. Speedway SuperAmerica, LLC, 2014 WI 72, ¶ 11, 356 Wis. 2d 1, 850 N.W.2d 160 (quoting Fischer v. Ganju, 168 Wis. 2d 834, 849, 485 N.W.2d 10 (1992)). "An error is prejudicial when it probably misled the jury." Id. In other words, a jury instruction error "is not prejudicial if it appears that the result would not be different had the error not occurred." Id. (quoting Lutz v. Shelby Mut. Ins. Co., 70 Wis. 2d 743, 751, 235 N.W.2d 426 (1975)).

2. Special skills instruction

¶ 106. There are professions and trades for which special skills are necessary to performance of the profession or trade. See Racine Cnty. v. Oracular Milwaukee, Inc., 2009 WI App 58, ¶ 28, 317 Wis. 2d 790, 767 N.W.2d 280 (parsing whether computer software installers were subject to a higher professional standard of care based on special skills). When those special skills are required but not competently performed, the "[professionals may be sued for malprac*778tice because [oí] the higher standards for care imposed on them by their profession." Id. (internal quotation marks and citation omitted). Further, when a higher standard of care is imposed on members of a profession or trade, expert witness testimony generally is required to prove that those standards were not met. Id., ¶ 34.

3. Instructions given

¶ 107. The circuit court gave a special skills instruction based on Cavallino being licensed as a semi-truck driver. That instruction stated in pertinent part:4

At the time of the accident, the defendant, Dale Cavallino, was a professional truck driver, operating a semi tractor trailer pursuant to a Commercial Driver's License issued by the State of Wisconsin. As the operator of a semi tractor-trailer, it was Dale Cavallino's duty to use the degree of care, skill and judgment which reasonable semi truck drivers would exercise in the same or similar circumstances, having due regard for the state of learning, education, experience, and knowledge possessed by semi truck drivers holding Commercial Driver's Licenses. A semi truck driver who fails to conform to this standard is negligent.

¶ 108. Immediately prior to the semi-truck driver instruction, the jury received instruction on the standard of ordinary care:5

A person is negligent when he fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. *779A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something or fails to do something that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.

¶ 109. In regard to these two instructions, the court of appeals melded them together and explained how it concluded that Cavallino's superior knowledge and skill fit into the standard of ordinary care:

Putting together the general standard of care with its application to the circumstances in which an actor possesses pertinent superior knowledge or skills: (1) all have a duty to use ordinary care to avoid acts that a reasonable person would recognize create unreasonable risks of injury or damage to others or property, and (2) a "reasonable person will act in the light of (a) knowledge shared by the community generally and also (b) information, knowledge and skill that he himself has that is not generally known and that reasonable people would not ordinarily have." Dan B. Dobbs et al., The Law of Torts § 132 (2d ed. 2014).

Dakter v. Cavallino, 2014 WI App 112, ¶ 40, 358 Wis. 2d 434, 856 N.W.2d 523.

¶ 110. The parties agree that it would have been improper for the circuit court to have instructed the jury that Cavallino is held to a higher standard of care than other drivers on the highway because he was a professional semi-truck driver.6 Dakter acknowledges that the standard of care for all drivers is ordinary care.

*780¶ 111. However, the wording of the special skills instruction for semi-truck drivers implies that there is a semi-truck driver standard of care and that Cavallino was obligated to conform his conduct to that standard of care, which differs from ordinary-care. That implication permitted the jury to hold Cavallino to a different standard of care than the standard of care that the jury applied to Dakter.

¶ 112. Specifically, the instruction directed that it was Cavallino's "duty to use the degree of care, skill and judgment which reasonable semi truck drivers would exercise in the same or similar circumstances." This is an incorrect statement of the law. It establishes a semi-truck driver standard of care that required Cavallino to use skills in addition to those required of Dakter while both were using a public highway. Accordingly, the circuit court erred by giving the jury the special skills instruction that was focused on the skills required of a commercial driver of a semi-truck.

¶ 113. I also conclude that the circuit court erroneously exercised its discretion in giving the special skills instruction because the application of the superior knowledge and skills doctrine is limited to persons taking actions in a venue where special skills are required by that venue. For example, when one takes action in a venue where special skills are required, e.g., physicians, lawyers, pharmacists and dentists, the circumstances that underlie the standard of ordinary care take into account the similarity of experience among those who work in the exclusive venue where the particularized superior knowledge and skills are required. Stated otherwise, in cases where special skills are relevant, the duty is defined by standards applicable to the particular profession of the alleged *781tortfeasor. Zastrow v. Journal Commc'ns, Inc., 2005 WI App 178, ¶ 25, 286 Wis. 2d 416, 703 N.W.2d 673.

¶ 114. In contrast to those who work in exclusive venues that require special skills in order to work in that venue, professional and lay vehicle operators employ the same venue, i.e., they share the same roadways. In addition, a driver with a license permitting him or her to drive a semi-truck54 could also drive a large truck, a pickup truck or a car. A driver with a commercial license could be a professional semi-truck driver, or he or she may drive a semi-truck only rarely. Alternatively, a driver holding a class D (regular) driver's license55 may operate any number of large and cumbersome vehicles, including large moving trucks or trucks with large trailers. Because all of these vehicle operators act in the same venue, i.e., the shared roadway, they are subject to the same ordinary care. Ordinary care is that care exercised by a reasonable person under the circumstances. See Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶¶ 30-32, 291 Wis. 2d 283, 717 N.W.2d 17. The circumstances of ordinary care are not modified according to the type of vehicle operator, but rather, uniformly reflect the nature of the shared venue, a public roadway. See State Dep't of Transp. v. Robbins, 246 P.3d 864, 867 (Wyo. 2011) (citing Cervelli v. Graves, 661 P.2d 1032, 1038-39 (Wyo. 1983) (affirming the trial court's refusal to give a jury instruction that set an individualized standard of care for a semi-truck driver and reasoning that to do so would be to convert an ordinary negligence case into a semi-truck driver's malpractice action)).

*782¶ 115. Even though I conclude that the circuit court erred in giving the semi-truck driver negligence instruction, the instruction was not prejudicial and therefore was harmless. As the court of appeals noted, the erroneous instructions may have subjected Cavallino to a higher standard of care than that to which he would have been held if he lacked superior knowledge or skills. Dakter, 358 Wis. 2d 434, ¶ 47. However, I also agree that jurors likely focused on the evidence presented at trial. Id. Therefore, if jurors were presented with accurate statements of the standard of ordinary care, they would have been as likely to reach the same conclusion.

¶ 116. Furthermore, "lj]ury instructions are evaluated in their entirety, not in isolation." Weborg, 341 Wis. 2d 668, ¶ 74. The erroneous semi-truck driver instruction was surrounded by correct instructions that repeatedly reminded the jury of the standard of ordinary care.

¶ 117. In addition, the jury's apportionment of negligence is substantially supported by the facts and does not indicate prejudice. Trial testimony supports the jury's verdict. For example, under hypothetical facts matching Dakter's testimony regarding the accident that gives rise to this case, Cavallino's own expert stated that if the hypothetical facts were true, the driving was "reckless" and Cavallino's own employer stated that such driving would be "unsafe." These facts in combination with the multiple instructions on ordinary care cause me to conclude that there is no reasonable probability that the circuit court's error in giving the semi-truck driver instruction contributed to the outcome of the trial. Accordingly, the jury instruction error was not prejudicial because the jury's verdict *783likely would have been the same had the error in instructions not occurred. See Kochanski, 356 Wis. 2d 1, ¶ 11.

III. CONCLUSION

¶ 118. I conclude that the circuit court's special skills instruction was erroneous because it incorrectly stated the law. However, I also conclude that the error was harmless. Accordingly, I would affirm the court of appeals, and although I do not join the majority opinion, I respectfully concur.

ANNETTE KINGSLAND ZIEGLER, J.

¶ 119. (concurring). I join the majority opinion's conclusion that the semi-truck driver jury instruction at issue was not erroneous under the facts of this case. I also join Chief Justice Roggensack's conclusion that, if this jury instruction were erroneous, the error was harmless. I write separately to clarify two points.

f 120. First, I write to clarify that the semi-truck driver jury instruction at issue was proper because the defendant was driving a semi-truck at the time of the accident. See majority op., ¶ 96 ("In the instant case, the circumstances relevant to a determination of whether the defendant acted reasonably include the fact that at the time of the collision, the defendant was engaged in a profession or trade (semi-trailer truck driving) and possessed the special knowledge and skill required of semi- trailer truck drivers." (emphasis added)). Had the defendant been driving a passenger automobile rather than a semi-truck at the time of the accident, the semi-truck driver jury instruction would have been erroneous, notwithstanding the fact that the defendant is a professional semi-truck driver.

*784¶ 121. Second, I write to clarify that certain treatises that the majority opinion cites are overly broad and do not dictate the law in Wisconsin. See, e.g., majority op., ¶ 48 (" [I]f a person in fact has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it." (quoting W. Page Keeton et al., Prosser and Keaton on Torts § 32, at 185 (5th ed. 2000))); id. ("In addition to the knowledge that may be imputed to a reasonable person, a person's actual knowledge and skills may be taken into account when the level of the person's knowledge or skills exceeds the average." (quoting 1 J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 3:21 (2d ed. 1990))); id., ¶ 43 n.16 ("The standard of the reasonable man requires only a minimum of attention, perception, memory, knowledge, intelligence, and judgment in order to recognize the existence of the risk. If the actor has in fact more than the minimum of these qualities he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances." (quoting Restatement (Second) of Torts § 289 cmt. m. (1965))). These passages should not be improperly construed as an expansion of Wisconsin law. See majority op., ¶ 49 ("These texts neither bind this court nor declare the law of Wisconsin."). Instead, I write to clarify that the majority opinion cites these treatises for the sole and limited purpose that, under the facts of this case, the semi-truck driver jury instruction was proper because the defendant was driving a semi-truck at the time of the accident. The majority opinion expressly recognizes that these broad treatise passages do not "declare the law of Wisconsin." Majority op., ¶ 49.

*785¶ 122. For the foregoing reasons, I respectfully concur.

¶ 123. I am authorized to state that Justice MICHAEL J. GABLEMAN joins this concurrence.

RAPER, Justice.

This case arose when Larry B. Cervelli (appellant) filed a personal injury suit for injuries he sustained when a pickup truck driven by him collided with a cement truck owned by DeBernardi Brothers, Inc. (appel-lee). The cement truck was driven by De-Bernardi’s employee, Kenneth H. Graves (appellee) while acting in the course of his employment. After trial, a jury found no negligence on the part of appellees. Appellant argues the jury was incorrectly instructed and, as a result, found as it did thereby prejudicing him. He raises the following issues on appeal:

“A. Did the court err in instructing the jury that it was not to consider a person’s skills in determining whether that person is negligent?

“B. Did the court err in not instructing that defendant, Kenneth H. Graves, is held to a more specific standard of care since he was a professional truck driver and plaintiff, Larry B. Cervelli, was not?

“C. Did the court err in instructing the jury that there is no liability for injuries from dangers that are obvious and reasonably apparent in the context of this matter.”

We will reverse and remand.

Around 7:30 a.m., February 22, 1980, a collision occurred approximately nine miles west of Rock Springs, Wyoming in the westbound lane of Interstate Highway 80 involving a pickup driven by appellant and appellee’s cement truck. At the time of the accident, the road was icy and very slick; witnesses described it as covered with “black ice.” Just prior to the accident appellant had difficulty controlling his vehicle and began to “fishtail” on the ice. He eventually lost control of his vehicle and started to slide. Appellee Graves, who had been approaching appellant from behind at a speed of 35-40 m.p.h., attempted to pass appellant’s swerving vehicle first on the left side, then the right. He too, thereafter, lost control of his cement truck and the two vehicles collided. It was from that accident that appellant brought suit to recover damages for the numerous injuries he suffered.

By his own admission, appellee Graves at the time of the accident was an experienced, professional truck driver with over ten years of truck driving experience. He possessed a class “A” driver’s license which entitled him to drive most types of vehicles including heavy trucks. He had attended the Wyoming Highway Patrol’s defensive driver course and had kept up-to-date with various driving safety literature. He was the senior driver employed by appellee De-Bernardi Brothers, Inc.

The suit was tried to a jury on the issues of appellee’s negligence as well as the degree, if any, of appellant’s own negligence. After a four-day trial, the jury was instructed and received the case for their consideration. They found no negligence on the part of appellees. Judgment was entered on the jury verdict and appellant moved for a new trial claiming the jury was improperly instructed. The district court took no action on the motion; it was deemed denied in sixty days. Rule 59, W.R. C.P. This appeal followed.

Appellant calls our attention to and alleges as error the district court’s jury instructions 5 and 10. Instruction 5 instructed the jury that:

“Negligence is the lack of ordinary care. It is the failure of a person to do something a reasonable, careful person would do, or the act of a person in doing something a reasonable, careful person would not do, under circumstances the same or similar to those shown by the evidence. The law does not say how a reasonable, careful person would act under those circumstances, as that is for the Jury to decide. ■>

“A reasonable, careful person, whose conduct is set up as a standard, is not the extraordinarily cautious person, nor the exceptionally skillful one, but rather a person of reasonable and ordinary prudence.

“Negligence is actionable only when it appears that it was a direct cause of any *1035injury and damages complained of. A direct cause is a cause which directly brings about the injury either immediately or through happenings which follow one after another.

“There may be more than one direct cause in that an accident may result from one or more separate and distinct acts by different persons.”

Instruction 10 instructed the jury that:

“Cervelli [appellant] and Graves [appel-lee] had a duty to use ordinary care for their own safety and protection, and to that end to observe the dangers, if any, which were open and obvious to them, or as well known to one as to the other, if they were using reasonable care and caution for their own safety and protection, and to guard against injury to themselves so far as by such reasonable care they could protect themselves. They had a duty to use for their own safety all such care and caution as an ordinarily prudent person ordinarily uses under like circumstances.

“Ordinary care demands that such vigilance be increased where special circumstances exist. The degree of diligence required of the parties in order to measure up to the standard of ordinary care which the law requires, varies with the circumstances and the conditions which might normally be brought about by the weather, and the opportunity to observe things. There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to any other parties.”

In chambers, appellant’s counsel made timely and specific objections to both instructions 5 and 10 and proposed instructions consistent with his objection to instruction 5.1 Appellant’s counsel stated distinctly that he objected to the second paragraph of instruction 5 because he argued appellee Graves was a professional truck driver and should be “held to a higher duty of care.” In the alternative, counsel argued if appellee Graves is not held to a higher standard by virtue of his occupation, the jury is at least allowed to take cognizance of any knowledge and skill he possesses; therefore, the instruction’s second paragraph should be deleted. Instruction 10, in its entirety, was objected to as incorrectly applying the doctrine of known and obvious danger, as it pertains to slip and fall cases, to this highway collision case; appellant argued that it had no application to the case at bar.2 Because appellant’s objections were timely and specific, the trial judge was sufficiently aware of the nature and grounds of the objection to afford him the opportunity, upon second thought, to change them if he so chose. For that reason, the objections were sufficient to pre*1036serve the issue and permit our review of the questioned instructions. Rule 51, W.R.C.P.; Danculovich v. Brown, Wyo., 593 P.2d 187 (1979); Pure Gas and Chemical Company v. Cook, Wyo., 526 P.2d 986 (1974).

In reviewing alleged errors in jury instructions, a finding of error is not alone sufficient to reverse; prejudicial error must be found. Walton v. Texasgulf, Inc., Wyo., 634 P.2d 908 (1981). Prejudicial error is never presumed; it must be established by the parties. Pure Gas and Chemical Company v. Cook, supra. If it is established that an instruction or instructions had a tendency to confuse or mislead the jury with respect to the applicable principles of law, reversal is proper. 9 Wright & Miller, Federal Practice and Procedure: Civil § 2558, p. 668 (1971); see also, Marken v. Empire Drilling Company, 75 Wyo. 121, 293 P.2d 406 (1956). We shall proceed with the foregoing in mind.

I

We begin our discussion of the issues by reviewing instruction 5 given by the trial court. Appellant argues that the second paragraph of that instruction is an incorrect statement of the law. We agree.

The complained of portion of that instruction states:

“A reasonable, careful person, whose conduct is set up as a standard, is not the extraordinarily cautious person, nor the exceptionally skillful one, but rather a person of reasonable and ordinary prudence.”

That language is an apparent attempt to enlarge upon the reasonable man standard. In that attempt to explain the reasonable man concept, however, the instruction goes too far. It contradicts the correct statement of the law contained in the first paragraph of the instruction. Simply put, the first paragraph of the instruction correctly states that negligence is the failure to exercise ordinary care where ordinary care is that degree of care which a reasonable person is expected to exercise under the same or similar circumstances. Vassos v. Roussalis, Wyo., 625 P.2d 768 (1981); Nehring v. Russell, Wyo., 582 P.2d 67 (1978); Fegler v. Brodie, Wyo., 574 P.2d 751 (1978). The trial court’s instruction first allows the jury to consider the parties’ acts as compared to how the reasonable person would act in similar circumstances and then limits the circumstances the jury can consider by taking out of their purview the circumstances of exceptional skill or knowledge which are a part of the totality of circumstances.

Our view that negligence should be determined in view of the circumstances is in accord with the general view. The Restatement, Torts 2d § 283 (1965) defines the standard of conduct in negligence actions in terms of the reasonable man under like circumstances. Professor Prosser, discussing the reasonable man, likewise said that “negligence is a failure to do what the reasonable man would do ‘under the same or similar circumstances.’ ” He contended a jury must be instructed to take the circumstances into account. Prosser, Law of Torts § 32, p. 151 (4th ed. 1971). Prosser also went on to note that under the latitude of the phrase “under the same or similar circumstances,” courts have made allowance not only for external facts but for many of the characteristics of the actor himself.

It has been said that “[circumstances are the index to the reasonable man’s conduct. His degree of diligence varies not only with standard of ordinary care, but also with his ability to avoid injuries to others, as well as the consequences of his conduct.” (Footnote omitted.) 1 Dooley, Modern Tort Law § 3.08, p. 27 (1982 Rev.). It was aptly put many years ago when it was said:

“ ‘It seems plain also that the degree of vigilance which the law will exact as implied by the requirement of ordinary care, must vary with the probable consequences of negligence and also with the command of means to avoid injuring others possessed by the person on whom the obligation is imposed. * * * Under some circumstances a very high degree of vigilance is demanded by the requirement of ordinary care. Where the consequence of negligence will probably be serious injury to others, and where the means of avoid*1037ing the infliction of injury upon others are completely within the party’s power, ordinary care requires almost the utmost degree of human vigilance and foresight.’ ” (Footnote omitted.) Id., quoting from Kelsey v. Barney, 12 N.Y. 425 (1855).

At a minimum, as Justice Holmes once said, the reasonable man is required to know what every person in the community knows. Holmes, Common Law p. 57 (1881). In a similar vein, Professor Prosser notes there is, at least, a minimum standard of knowledge attributable to the reasonable man based upon what is common to the community. Prosser, supra at pp. 159-160. Prosser went on to say, however, that although the reasonable man standard provides a minimum standard below which an individual’s conduct will not be permitted to fall, the existence of knowledge, skill, or even intelligence superior to that of an ordinary man will demand conduct consistent therewith. Id. at 161. Along that same line, Restatement, Torts 2d § 289 (1965) provides:

“The actor is required to recognize that his conduct involves a risk of causing an invasion of another’s interest if a reasonable man would do so while exercising

“(a) such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as a reasonable man would have; and

“(b) such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has.”

Section 289 comment m expands further on the effect of superior qualities of an individual when it states:

“m. Superior qualities of actor. The standard of the reasonable man requires only a minimum of attention, perception, memory, knowledge, intelligence, and judgment in order to recognize the existence of the risk. If the actor has in fact more than the minimum of these qualities, he is required to exercise the superi- or qualities that he has in a manner reasonable under the circumstances. The standard becomes, in other words, that of a reasonable man with such superior attributes.”

The instruction given by the trial court could easily have been construed by the jury to preclude their consideration of exceptional skill or knowledge on the part of either party which the evidence may have shown. In determining negligence the jury must be allowed to consider all of the circumstances surrounding an occurrence, including the characteristics of the actors in reaching their decision. Where, as here, there was evidence from which the jury could have concluded appellee Graves was more skillful than others as a result of his experience as a driver, they should be allowed to consider that as one of the circumstances in reaching their decision. The second paragraph of instruction 5, as appellant points out, could easily have misled the jury into disregarding what they may have found from the evidence regarding appel-lee’s skill and as such prejudiced appellant. The objectionable language of the instruction is surplus language which, rather than clarifying the fictional concept of the reasonable person, actually unduly limited it. Therefore, because instruction 5 was both an incorrect statement of the law and more importantly very probably misleading, we hold that the trial court committed reversible error in using it to instruct the jury.

II

Although we hold that the trial court erred when it in effect instructed the jury to disregard exceptional characteristics of either of the parties in determining negligence, we cannot extend that holding to rule favorably on appellant’s second issue. Appellant would have us hold that the trial court erred in failing to instruct that, as a matter of law, appellee Graves was held to a higher standard of care because he was a professional truck driver. It is one thing to say that, if so found, a jury can take account of an individual’s exceptional knowledge or skill in determining negligence; it is quite another to say that as a matter of law, because he is a truck driver, *1038an individual is held to a higher standard of care than other drivers. Appellant would, in his own words, have us treat this as a professional truck driver’s driver malpractice case. That we will not do.

Appellant relies on the fact that the State has created various classes of driver’s licenses and that appellee Graves possessed a class “A” license as his basis for claiming that, as a matter of law, truck drivers, as a group, are held by statute to a higher standard of care. Section 31-7-109, W.S.1977, Cum.Supp.1982, is the statute upon which he relies. It provides in pertinent part:

“(a) Every driver’s license issued by the department shall be classified to indicate the type or general class of vehicles the licensee may drive.

“(b) License classification shall be prescribed by the department and shall take into account the operational characteristics of the vehicles involved, their design and factors the division reasonably believes are important to safe traffic. These qualifications may include any test or affidavit of proficiency authorized to be given to the original applicants by W.S. 31-7-114.

“(c) Licensing classification plan:

“(i) Class ‘C’ consists of any single vehicle or combination of vehicles except motorcycles and buses not in excess of sixteen thousand (16,000) pounds unladen vehicle or total combined weight;

“(ii) Class ‘B’ consists of any single vehicle, except motorcycles, weighing over sixteen thousand (16,000) pounds unladen vehicle weight and all vehicles under class ‘C’;

“(iii) Class ‘A’ consists of any vehicle or combination of vehicles, except motorcycles, including all vehicles under classes ‘B’ and ‘C’.”

That statute does not create a higher standard of care for possessors of each successively higher class of license. It, in § 31-7-109(b), explains that the classification scheme was created to take cognizance of varying operational characteristics and design factors when licensing drivers to drive different classes of vehicles. It deals with what type of vehicles the holder of any class license may drive, rather than the standard of care the holder of each must exercise. Section 31-5-104, W.S.1977, sets the statutory standard that drivers must obey the traffic laws of this state. Nowhere in our statutes can we find a provision requiring that any one class of drivers must exercise a higher standard of care than others — all drivers are to exercise due care under the circumstances in the operation of their vehicles. Miller v. Hedderman, Wyo., 464 P.2d 544 (1970). This court has held that drivers in this state have a twofold duty to comply with the applicable traffic laws and regulations and to exercise reasonable care under the circumstances. McVicker v. Kuronen, 71 Wyo. 222, 256 P.2d 111 (1953).

Appellant cites Dillenbeck v. City of Los Angeles, 69 Cal.2d 472, 72 Cal.Rptr. 321, 446 P.2d 129 (1968) for the proposition that truck drivers as a group should be held to a higher standard of care than other drivers. Dillenbeck dealt with an automobile collision in which a policeman, responding to an emergency, drove through a red light and collided with another vehicle. The other driver died as a result of the injuries he sustained in the mishap. The issue that case decided was evidentiary rather than one dealing with jury instructions. The court ruled that evidence of police safety bulletins and the information contained therein concerning proper police procedures for responding to an emergency should have been admitted at trial. The bulletins were admissible to show procedures that may or may not have been followed by the defendant, as well as to show the standard of care required of police officers based on their knowledge. In dicta the court indicated that an instruction on a higher standard of care required of drivers of emergency vehicles may have been appropriate. It is that dicta to which appellant refers us.

Dillenbeck is distinguishable from the instant case on its facts. There the court dealt with the case of an emergency driver who, in the performance of his duties, was acting outside the normal traffic laws. *1039Here we are faced with drivers operating under the normal rules of the road with no provision for them to do otherwise.3 Because of the factual difference, we find Dillenbeck, together with its dicta, inapplicable to the case before us.

Appellant cites no other authority to support an instruction that truck drivers as a class are held to a higher standard of care. Our own research has likewise failed to turn up authority to support such an instruction. Quite to the contrary, the general state of the law supports the opposite conclusion that all drivers, regardless of class, are held to the same standard of care — due care under the circumstances.4 Without so stating to the jury by way of an instruction, jury consideration of an individual truck driver’s exceptional skill is one of the circumstances contemplated by instruction 5, corrected by the deletion of the second paragraph.

In view of the lack of statutory or common-law authority which would support the giving of appellant’s proffered instruction 24, we hold that the trial court quite rightly rejected it.

III

We reach appellant’s final issue in which he argues that the trial court erred in giving instruction 10. He particularly objects to the final sentence of that instruction which states the essence of the entire instruction. That sentence states: “There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to any other parties.” That is an erroneous statement of the law of negligence as it applies to the case at bar.

The instruction is basically the type of instruction given in a slip and fall case dealing with the known and obvious danger of natural accumulation of ice and snow. We have, on numerous occasions, upheld the known and obvious danger rule in appropriate slip and fall cases. Norman v. City of Gillette, Wyo., 658 P.2d 697 (1983); Sherman v. Platte County, Wyo., 642 P.2d 787 (1982); Johnson v. Hawkins, Wyo., 622 P.2d 941 (1981); Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976). Those cases all dealt with suits brought by the injured party against the owner of the premises where the fall occurred. The thrust of our known and obvious danger rule decisions has been that the danger presented by accumulations of snow and ice does not generally create liability for a possessor of property because of their natural character. We have never, however, applied that rule to an automobile collision case where the parties involved were not in control of the premises where the accident occurred.

Here, the trial court incorrectly applied the known and obvious danger rule to a negligence action between two drivers on an icy highway. The rule does not apply in such a case. To apply such a rule to the case at bar abrogates Wyoming’s comparative negligence statute5 upon which the jury was also instructed by the trial court.

*1040Where we have carved out a rule as a matter of public policy to protect possessors of land from liability for the natural accumulation of ice and snow, such a rule is unnecessary between two parties like those here where we have adopted comparative negligence. As we noted in Sherman v. Platte County, supra at 789-790, the adoption of the comparative negligence rule did not abrogate the obvious danger rule because, under that rule, there is no negligence on the defendant’s part; the adoption of comparative negligence created no new duties of care. In this case, both appellant and appellees owed a duty to exercise due care under the circumstances and both have alleged the other violated that duty. Comparative negligence is particularly applicable in this case. Instruction 10 in effect resurrects contributory negligence as a bar to appellant’s recovery. Our comparative negligence statute, see fn. 5, clearly forbids any such bar to appellant’s recovery. See, Board of County Com’rs of County of Campbell v. Ridenour, Wyo., 623 P.2d 1174 (1981), reh. denied Wyo., 627 P.2d 163 (1981).

Instruction 10, viewed in any light, precludes recovery for appellant in view of the uncontroverted fact that the accident occurred on ice and such condition was known to both parties. It allows the trial court to decide the case for the jury, whereas the jury is properly the fact finder. Instruction 10 applies an inapplicable rule of law. Because it effectively precluded appellant’s recovery by taking away a jury question, it was prejudicial. There can be negligent driving on icy roads by one or the other or both parties in varying percentages. What a jury may decide upon hearing this case and after being properly instructed we are unable to say. What we must say, though, is that appellant should have the benefit of having his case decided by a properly instructed jury rather than by the trial court through an incorrect jury instruction.

Reversed and remanded for a new trial.

LABORDE, Judge.

In this tort suit, William C. Roberts sued to recover damages for injuries he sustained in an accident in the lobby of the U. S. Post Office Building in Alexandria, Louisiana. Roberts fell after being bumped into by Mike Burson, the blind operator of the concession stand located in the building.

Plaintiff sued the State of Louisiana, through the Louisiana Health and Human Resources Administration, advancing two theories of liability: respondeat superior and negligent failure by the State to properly supervise and oversee the safe operation of the concession stand.1 The stand’s *567blind operator, Mike Burson, is not a party to this suit although he is charged with negligence.

The trial court order plaintiff’s suit dismissed holding that there is no respondeat superior liability without an employer-employee relationship and that there is no negligence liability without a cause in fact showing.

We affirm the trial court’s decision for the reasons which follow.

On September 1, 1977, at about 12:45 in the afternoon, operator Mike Burson left his concession stand to go to the men’s bathroom located in the building. As he was walking down the hall, he bumped into plaintiff who fell to the floor and injured his hip. Plaintiff was 75 years old, stood 5'6" and weighed approximately 100 pounds. Burson, on the other hand, was 25 to 26 years old, stood approximately 6' and weighed 165 pounds.

At the time of the incident, Burson was not using a cane nor was he utilizing the technique of walking with his arm or hand in front of him.

Even though Burson was not joined as a defendant, his negligence or lack thereof is crucial to a determination of the State’s liability. Because of its importance, we begin with it.

Plaintiff contends that operator Mike Burson traversed the area from his concession stand to the men’s bathroom in a negligent manner. To be more specific, he focuses on the operator’s failure to use his cane even though he had it with him in his concession stand.

In determining an actor’s negligence, various courts have imposed differing standards of care to which handicapped persons are expected to perform. Professor William L. Prosser expresses one generally recognized modern standard of care as follows:

“As to his physical characteristics, the reasonable man may be said to be identical with the actor. The man who is blind ... is entitled to live in the world and to have allowance made by others for his disability, and he cannot be required to do the impossible by conforming to physical standards which he cannot meet ... At the same time, the conduct of the handicapped individual must be reasonable in the light of his knowledge of his infirmity, which is treated merely as one of the circumstances under which he acts ... It is sometimes said that a blind man must use a greater degree of care than one who can see; but it is now generally agreed that as a fixed rule this is inaccurate, and that the correct statement is merely that he must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind.” W. Prosser, The Law of Torts, Section 32, at Page 151-52 (4th ed. 1971).

A careful review of the record in this instance reveals that Burson was acting as a reasonably prudent blind person would under these particular circumstances.

Mike Burson is totally blind. Since 1974, he has operated the concession stand located in the lobby of the post office building. It is one of twenty-three vending stands operated by blind persons under a program funded by the federal government and implemented by the State through the Blind Services Division of the Department of Health and Human Resources. Burson hired no employees, choosing instead to operate his stand on his own.

Prior to running the vending stand in Alexandria, Burson attended Arkansas Enterprises for the blind where he received mobility training. In 1972, he took a refresher course in mobility followed by a course on vending stand training. In that same year, he operated a concession stand in Shreveport, his first under the vending stand program. He later operated a stand at Centenary before going to Alexandria in 1974 to take up operations there.

On the date of the incident in question, Mike Burson testified that he left his concession stand and was on his way to the men’s bathroom when he bumped into plaintiff. He, without hesitancy, admitted that at the time he was not using his cane, explaining that he relies on his facial sense which he feels is an adequate technique for *568short trips inside the familiar building. Burson testified that he does use a cane to get to and from work.

Plaintiff makes much of Burson’s failure to use a cane when traversing the halls of the post office building. Yet, our review of the testimony received at trial indicates that it is not uncommon for blind people to rely on other techniques when moving around in a familiar setting. For example George Marzloff, the director of the Division of Blind Services, testified that he can recommend to the blind operators that they should use a cane but he knows that when they are in a setting in which they are comfortable, he would say that nine out of ten will not use a cane and in his personal opinion, if the operator is in a relatively busy area, the cane can be more of a hazard than an asset. (Tr. 164) Mr. Marzloff further testified that he felt a reasonably functioning blind person would learn his way around his work setting as he does around his home so that he could get around without a cane. Mr. Marzloff added that he has several blind people working in his office, none of whom use a cane inside that facility. (Tr. 165)

Mr. Marzloff’s testimony is similar to testimony received from Guy DiCharry, a blind business enterprise counselor with the Blind Services Division. As part of his responsibilities Mr. DiCharry supervised the Alexandria vending stand providing him with an opportunity to observe Mike Burson in a work setting. He testified that Burson knew his way around the building pretty well and that like most of his other blind operators, he did not use a cane on short trips within the building. (Tr. 132-133) He added that he discussed the use of a cane on such short trips as these with some of his other blind operators but they took offense to his suggestions, explaining that it was their choice.

The only testimony in the record that suggests that Burson traversed the halls in a negligent manner was that elicited from plaintiff’s expert witness, William Henry Jacobson. Jacobson is an instructor in peri-pathology, which he explained as the science of movement within the surroundings by visually impaired individuals. Jacobson, admitting that he conducted no study or examination of Mike Burson’s mobility skills and that he was unfamiliar with the State’s vending program, nonetheless testified that he would require a blind person to use a cane in traversing the areas outside the concession stand. (Tr. 200) He added that a totally blind individual probably should use a cane under any situation where there in an unfamiliar environment or where a familiar environment involves a change, whether it be people moving through that environment or strangers moving through that environment or just a heavy traffic within that environment. (Tr. 202)

When cross examined however, Jacobson testified:

“Q. Now, do you, in instructing blind people on their mobility skills, do you tell them to use their own judgment in which type of mobility assistance technique they’re to employ?

A. Yes I do.

Q. Do you think that three (3) years is a long enough period for a person to become acquainted with an environment that he might be working with?

A. Yes I do.

Q. So you think that after a period of three (3) years an individual would probably, if he is normal . .. has normal mobility skills for a blind person, would have enough adjustment time to be ... to call that environment familiar?

A. Yes.

Q. That’s not including the fact that there may be people in and out of the building?

A. Right.

Q. Now is it possible that if he’s familiar with the sounds of the people inside a building that he may even at some point in time become so familiar with the people in an area, regular customers or what not that you could *569say that the environment was familiar, including the fact that there are people there, is that possible?

A. Uh ... I would hesitate to say that, in a public facility where we could not ... uh ... control strangers coming in.

Q. Well, let’s say that a business has a particular group of clients that are always there, perhaps on a daily or weekly basis. Now you’ve stated that a blind person sharpens his auditory skills in order to help him articulate in an area?

A. With instruction, yes.

Q. Right. Isn’t is possible that if he can rely on a fixed travel of a fixed type and number of persons that it’s possible that that is a familiar environment even though there are people there?

A. Only if they were the same people all the time and they know him, yes.”

Upon our review of the record, we feel that plaintiff has failed to show that Bur-son was negligent. Burson testified that he was very familiar with his surroundings, having worked there for three and a half years. He had special mobility training and his reports introduced into evidence indicate good mobility skills. He explained his decision to rely on his facial sense instead of his cane for these short trips in a manner which convinces us that it was a reasoned decision. Not only was Burson’s explanation adequate, there was additional testimony from other persons indicating that such a decision is not an unreasonable one. Also important is the total lack of any evidence in the record showing that at the time of the incident, Burson engaged in any acts which may be characterized as negligence on his part. For example, there is nothing showing that Burson was walking too fast, not paying attention, et cetera. Under all of these circumstances, we conclude that Mike Burson was not negligent.

Our determination that Mike Burson was not negligent disposes of our need to discuss liability on the part of the State.

For the above and foregoing reasons, the judgment of the trial court dismissing plaintiff’s claims against defendant is affirmed and all costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

MEMORANDUM

JOHN GARRETT PENN, Chief Judge.

This case is before the Court on defendant’s Motion for Summary Judgment on the issue of liability for punitive and compensatory damages.1 After giving careful consideration to the motion, the opposition thereto, and the record in this case, the Court concludes for reasons set out below that the motion must be denied.

Arguments

Defendant contends that while he was in a ‘deluded and psychotic state of mind’ he fired at the President of the United States of America. Plaintiffs, who were near the President were struck by bullets fired by the defendant. The criminal ease was tried before a federal jury and the defendant was found not guilty by reason of insanity on all counts. See United States v. John W. Hinckley, Jr., Findings and Order, Criminal Number 81-306, August 10, 1982. On the basis of this verdict and a subsequent evaluation and report on Mr. Hinckley’s mental condition in accordance with D.C.Code Ann. § 24-301(d) (1981)2, defendant was involuntarily committed to St. Elizabeth’s Hospital. Id. Defendant asserts that these events require a finding of summary judgment in his favor since they *186demonstrate that he was legally insane at the time of the shootings. In accordance with this argument defendant contends that: (1) insane actors are not held liable for punitive damages under the law of this jurisdiction and (2) that the historical rule in this jurisdiction, requiring that an insane actor be held liable for compensation to the victims of his torts, should be rejected by this Court.

Plaintiffs argue that to succeed on his motion for summary judgment, on the issue of punitive damages, defendant must prove that he was insane. They assert that defendant’s sanity remains unresolved by the prior criminal proceeding and subsequent commitment. Plaintiffs additionally contend that as a matter of law, a tortfeasor is liable for compensatory damages, regardless of his mental state at the time of the tort.

Punitive Damages

Insane tortfeasors are not liable for punitive damages to the victims of their torts. Aetna Casualty and Surety Co. v. Porter, 181 F.Supp. 81, 88 (D.D.C.1960). Nonetheless, the question of defendant’s sanity, at the time of the tort, remains a genuine issue of fact to be tried. Defendant may not rely on the verdict in his criminal trial to support the proposition that he was legally insane at the time of the shootings.

It is well settled that in order to preclude a party from raising, in a later proceeding, an issue that was determined in a prior proceeding — as defendant seeks to do on the issue of insanity — identity of the issues in the two proceedings must exist. See Clark-Cowlitz Joint Operating Agency v. Federal Energy Regulatory Commission, 264 U.S.App.D.C. 58, 826 F.2d 1074, 1079 (1987), cert. denied, 485 U.S. 913, 108 S.Ct. 1088, 99 L.Ed.2d 247 (1988). Further, with regard to the application of issue preclusion in the setting of a criminal trial and a subsequent civil trial, the Supreme Court has said that “the difference in degree of the burden of proof in criminal and civil cases precludes application of the doctrine....” Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938). The Court in Helvering stressed that an acquittal in a criminal trial under the reasonable doubt standard is not the same as determining that a defendant is not liable under the civil standard of preponderance of the evidence. Id.

Defendant cannot dispute that the standard in effect at the time of his federal criminal trial placed the burden of proving his sanity on the government.3 In the previous criminal trial, the jury found that the defendant was not sane because the government did not prove his sanity beyond a reasonable doubt. However, in the instant civil action, defendant bears the burden of proving that he was insane by a preponderance of the evidence. Accordingly summary judgment is improper as to the issue of recoverability of punitive damages because there is a genuine issue as to defendant’s sanity.

Compensatory Damages

An insane person is liable for compensatory damages for his torts where express malice or evil intent is not a necessary element of the tort. Aetna Casualty, 181 F.Supp. at 88. The primary purpose of such a rule is to compensate the victims for their loss.4 Defendant urges the Court to reject this well established rule.

*187While the Court acknowledges that commentators have criticized the common law rule, the fact remains that “courts in this country almost invariably say in the broadest terms that an insane person is liable for his torts.” Williams v. Kearbey, 13 Kan. App.2d 564, 775 P.2d 670 (1989). See e.g., Mullen v. Bruce, 168 Cal.App.2d 494, 335 P.2d 945 (1959); Polmatier v. Russ, 206 Conn. 229, 537 A.2d 468 (1988); Kaczer v. Marrero, 324 So.2d 717 (Fla.App.1976); Vosnos v. Perry, 43 Ill.App.3d 834, 2 Ill.Dec. 447, 357 N.E.2d 614 (1976) Banks v. Dawkins, 339 So.2d 566 (Miss.1976) Albicocco v. Nicoletto, 11 A.D.2d 690, 204 N.Y.S.2d 566 (1960) aff'd, 9 N.Y.2d 920, 217 N.Y.S.2d 91, 176 N.E.2d 100 (1961). Moreover, there are modern justifications for such a rule. See Splane, Tort Liability of the Mentally Ill in Negligence Actions, 93 Yale L.J. 153, 163 (1983) (using the objective standard to determine primary negligence helps minimize the burden on the community from deinstitutionalization, helps foster community acceptance of the mentally ill, and encourages the mentally ill to become self-sufficient responsible members of the community).

Defendant relies on Fitzgerald v. Lawhorn, 29 Conn.Supp. 511, 294 A.2d 338 (1972) in which the court was not willing to accept the majority view that insane persons are liable for their torts because “it appears to be an outdated point of view.”5 However, Fitzgerald has been overruled sub silentio in Polmatier v. Russ, 206 Conn. 229, 537 A.2d 468 (1988). In that case the court held that “the majority rule is consistent with the settled common-law rule that where one of two innocent persons must suffer loss from an act done, it is just that it should fall on the one who caused the loss rather than upon the other who had no agency in producing it and could not by any means have avoided it.” 537 A.2d 468.

Conclusion

In view of the foregoing discussion, the Court will deny defendant’s motion for summary judgment in its entirety.6 An appropriate order follows this opinion. In addition, the Court will file a separate order setting forth the undisputed facts and the issues left for trial.

MEMORANDUM DECISION

GOETTEL, District Judge.

This a motion for summary judgment by defendants Gail Kemp, Conservator of the Person of Mary Denittis., and Mary Denittis, individually (collectively “Denittis”). Denittis moves for summary judgment on counts two (negligence) and three (battery) of plaintiff Corrine Colman’s (“Colman”) complaint. We have supplemental jurisdiction over this matter pursuant to 28 U.S.C. § 1367(a), as plaintiffs first count brought against defendant Notre Dame Convalescent Home, Inc. arises under the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. For the following reasons, defendant’s motion (document # 47) is GRANTED in part and DENIED in part.

FACTS

The material facts related to this motion are not in dispute. Plaintiff is a recreational therapist employed by defendant Notre Dame Convalescent Home. Plaintiff is completely blind.

Defendant Denittis suffers from senile dementia and has been a resident of the convalescent home since November, 1994. She was admitted sometime after being declared an incompetent person in a probate proceeding in the New Canaan Probate Court on August 11,1993.1 It is undisputed that, as a result of her condition, defendant suffers from severe memory deficit and confusion.

On May 17, 1995, while plaintiff vas entertaining residents of the convalescent home by playing her guitar, Denittis wrestled the guitar away from plaintiff and used it to beat her on the head. As a result of the attack, plaintiff suffered injuries and was unable to *811work for three weeks. Plaintiff returned to work in June, 1995. Approximately two months later, on August 30, 1995, Denittis again attacked plaintiff, causing her to lose her balance and fall. As result of this incident, plaintiff injured her cervical and lumbar spines. Plaintiff claims that, as a result of these suffers from depression, post-traumatic stress disorder, and panic disorders. She has not yet returned to work at the convalescent home.

DISCUSSION

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In determining whether or not the record presents genuine issue for review, the court must resolve all factual disputes in favor of the non-moving party. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). “If, as to any issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.” Gummo v. Village of Depew, N.Y., 75 F.3d 98, 107 (2d Cir.) cert. denied, — U.S. ---, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996). The party seeking summary judgment bears the burden of demonstrating the absence of any genuine factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)

Count Three: Battery

Denittis argues that she is entitled to summary judgment on plaintiffs third count, which alleges battery, on the grounds that she “is unable to comprehend her actions and act as a reasonable person [and] she is unable to form the intent necessary to commit an intentional tort.” Defendant’s Memorandum of Law, p. 8.

However, the Connecticut Supreme Court has held otherwise. In Polmatier v. Russ, 206 Conn. 229, 537 A.2d 468 (1988), the Court adopted the rule followed by the majority of jurisdictions to have considered the issue that insane persons may be held liable for their intentional torts. Id. at 234, 537 A.2d 468. In so doing, the Court, reasoned that such liability was consistent with “the common law principle that where one of two innocent persons must suffer loss from an act done, it is just that it should fall on the one who caused the loss rather than upon the other who had no agency in producing it and could not by any means have avoided it.” Id. at 236, 537 A.2d 468 (internal quotations omitted). Accordingly, defendant’s motion for summary judgment on court three is denied.

Count Two: Negligence

? also argues that she is entitled to summary judgment on plaintiffs second count which alleges negligence. Her principle argument is that, as an individual suffering from senile dementia, she is incapable of acting reasonably, and therefore her behavior should not be evaluated against that of the “reasonably prudent person”, as is required by Connecticut law.

While there are no Connecticut Supreme Court cases on that point, courts of other jurisdictions which have considered the issue unanimously have adopted the common law rule that an insane or mentally disordered person is civilly liable for injuries resulting from her negligence. See Bashi v. Wodarz, 45 Cal.App.4th 1314, 53 Cal.Rptr.2d 635, 641 (1996); Delahanty v. Hinckley, 799 F.Supp. 184, 187 (D.D.C.1992); C.T.W. v. B.C.G., 809 S.W.2d 788, 793 (Tex.Ct.App.1991); Mujica v. Turner, 582 So.2d 24, 25 (Fla.Dist.Ct.App.1991) (recognizing majority rule, but applying exception); Goff v. Taylor, 708 S.W.2d 113, 115 (Ky.Ct.App.1986); Schumann v. Crofoot, 43 Or.App. 53, 602 P.2d 298, 301 (1979) (affirming trial court’s instruction that defendant’s mental state was not a defense to negligence); Banks v. Dawkins, 339 So.2d 566, 568 (Miss.1976); Kuhn v. Zabotsky, 9 Ohio St.2d 129, 224 N.E.2d 137, 141 (1967); Johnson v. Lambotte, 147 Colo. 203, 363 P.2d 165, 166 (1961) (adopting general rule stated in 44 C.J.S. Insane Persons § 122, p. 281 that “an insane person may be liable for his torts the same as a sane person”).

The reasoning behind those decisions is one of public policy. Such a rule avoids *812“[t]he difficulty of drawing any satisfactory line between mental deficiency and those variations of temperament, intellect, and emotional balance which cannot, as a practical matter be taken into account in imposing liability for damage done.” This rule also avoids “the difficulties which the triers of fact must encounter in determining [the] existence, nature, degree, and effect [of mental illness].” Comments to Restatement (Second) of Torts § 283B. The rule further expresses the belief that “if mental defectives are to live in the world they should pay for the damage they do ... [and] that their lability will mean that those who have charge of them or their estates will be stimulated to look after them, keep them in order, and see that they do not do harm.” Id.2

We conclude, therefore, that the inability to act rationally is not, per se, a bar to liability for negligence. However, in a recent Connecticut Supreme Court case, Jawarski v. Kiernan, 241 Conn. 399, (Sup.Ct.1997) (holding that adult participants on opposing sports teams owe duty to refrain from only reckless or intentional conduct toward other participants), the Court set forth the analysis to be followed in determining negligence lability generally:

Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a neglgence cause of action. The nature of the duty, and the specific persons to whom it is owned, are determined by the circumstances surrounding the conduct of the individual. Although it has been said that no universal test for duty ever has been formulated, our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that ha may result if it is not exercised. By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary person in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally “foreseeable,” yet for pragmatic reasons, no recovery is allowed. A further inquiry must be made, for we recognize that “duty” is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. *813The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.

Jawarski v. Kiernan, 241 Conn. 399, ---, 696 A.2d 332, --- (Sup.Ct.1997).

Applying the above analysis, to the undisputed facts of this case, we conclude that Denittis is not liable for injuries suffered by Colman as a result of defendant’s negligence. Plaintiffs injuries were certainly foreseeable, as Denittis was confined to the convalescent home because she was incapable of caring for herself or controlling her behavior. In addition, while some courts have expressed concern over the difficulties which triers of fact must encounter in determining the existence and degree of mental illness and its potential effect on liability for damage done, these concerns have no basis where, as here, defendant already has been determined incompetent in a court proceeding.

Moreover, as a matter of policy, it seems irrational to impose legal duty of care on defendant. Colman is not a stranger unable to anticipate or safeguard against harm when encountered. Rather, she is employed as a caretaker to tend to those, like defendant, who suffered from mental illness and/or were incapable of caring for themselves. Under these circumstances, it was plaintiff, not Denittis, who was in the best position to protect against the risks and the dangers she faced that stemmed from the very nature of her job.

Further, imposing liability on Denittis (or her estate) would not serve a beneficial purpose. While the common law rule imposing liability on incompetent adults stems from the belief that doing so would encourage caretakers or guardians of mentally deficient adults to restrict them so that they do not cause unnecessary damage to members of the public, Denittis already was confined to a restricted convalescent home at the time incidents. There is nothing more that her guardians or relatives could have done to protect others from defendant’s negligent acts.

Several other states have found that there is no liability for injuries suffered by a paid hospital attendant as a result of a patient’s negligence, see Herrle v. Estate of Marshall, 45 Cal.App.4th 1761, 53 Cal.Rptr.2d 713, 716 (1996); Gould v. American Family Mutual Insurance Co., 198 Wis.2d 450, 543 N.W.2d 282, 283 (Sup.Ct.1996) (institutionalized individual cannot be liable for injuries caused to caretakers who are employed for financial compensation) Mujica v. Turner 582 So.2d 24, 24 (Fla.Dist.Ct.App.1991) (holding physical therapist could not recover from nursing home patient suffering from Alzheimer’s disease who injured her)

In Herrle v. Marshall, 45 Cal.App.4th 1761, 53 Cal.Rptr.2d 713 (1996), plaintiff was an aide in a convalescent home for mentally incompetent adults, which housed many patients suffering from Alzheimer’s disease. Id. at 715. She sued after the defendant, who was suffering from senile dementia and Alzheimer’s disease, “struck plaintiff about the head several times causing serious jaw injuries.” Id. In determining that defendant was not liable, the California court first recognized the common law rule, codified in California Civil Code § 41, that mentally incompetent adults are liable to those injured by their tortious activities. Id. The court then reasoned that “[bjecause of the nature of the activity, caring for the mentally infirm, and the relationship between the parties, patient and caregiver, mentally incompetent parties should not owe a legal duty to protect caregivers from injuries suffered in attending to them.” Id. 53 Cal. Rptr.2d at 719.

Similarly, in Gould v. American Family Mutual Insurance Co. 198 Wis.2d 450, 543 N.W.2d 282 (Sup.Ct.1996), the Court found that public policy considerations precluded finding the defendant, who suffered from Alzheimer’s disease, liable for his negligence. Id. 543 N.W.2d at 286. The Court reasoned that plaintiff, who was the head nurse of the dementia unit, “was employed as a caretaker specifically for dementia patients and knowingly encountered the dangers associated with such employment.” Id. at 287. The Court further reasoned that defendant’s relatives already had done “everything they could to restrain him when they placed him in a secured dementia unit of a restricted *814health center ... [They were] not likely in need of such further inducement.” Id

Applying the foregoing reasoning to the facts of this case, we find that, although a mentally disabled adult ordinarily is responsible for injuries resulting from her negligence, no such duty of care arises between an institutionalized patient and her paid caregiver.

CONCLUSION

Accordingly, defendant’s motion for summary judgment (document # 47) is GRANTED as to plaintiffs second count (negligence), but DENIED as to the third count (intentional tort)

So Ordered.

Cardozo, Ch. J.

Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help *341him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper.

In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.

The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively , to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. “Proof of negligence in the air, so to speak, will not do” (Pollock, Torts [11th ed.], p. 455; Martin v. Herzog, 228 N. Y. 164, 170; cf. Salmond, Torts [6th ed.], p. 24). “Negligence is the absence of care, according to the circumstances” (Willes, J., in Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679, 688; 1 Beven, Negligence [4th ed.], 7; Paul v. Consol. Fireworks Co., 212 N. Y. 117; Adams v. Bullock, 227 N. Y. 208, 211; Parrott v. Wells-Fargo Co., 15 Wall. [U. S.] 524). The plaintiff as she stood upon the platform of the station might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor (Sullivan v. Dunham, 161 N. Y. *342(290). If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else. “In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury” (McSherry, C. J., in W. Va. Central R. Co. v. State, 96 Md. 652, 666; cf. Norfolk & Western Ry. Co. v. Wood, 99 Va. 156, 158, 159; Hughes v. Boston & Maine R. R. Co., 71 N. H. 279, 284; U. S. Express Co. v. Everest, 72 Kan. 517; Emry v. Roanoke Nav. Co., 111 N. C. 94, 95; Vaughan v. Transit Dev. Co., 222 N. Y. 79; Losee v. Clute, 51 N. Y. 494; DiCaprio v. N. Y. C. R. R. Co., 231 N. Y. 94; 1 Shearman & Redfield on Negligence, § 8, and cases cited; Cooley on Torts [3d ed.], p. 1411; Jaggard on Torts, vol. 2, p. 826; Wharton, Negligence, § 24; Bohlen, Studies in the Law of Torts, p. 601). “The ideas of negligence and duty are strictly correlative” (Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.

A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles over a package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned, when the guard stumbles over a valise *343which a truckman or a porter has left upon the walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed. In this case, the rights that are said to have been violated, the interests said to have been invaded, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was to make his person safe. If there was a wrong to him at all, which may very well be doubted, it was a wrong to a property interest only, the safety of his package. Out of this wrong to property, which threatened injury to nothing else, there has passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of another order, the right to bodily security. The diversity of interests emphasizes the futility of the effort to build the plaintiff’s right upon the basis of a wrong to some one else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform.

The argument for the plaintiff is built upon the shifting meanings of such words as “wrong” and “wrongful,” and shares their instability. What the plaintiff must *344show is “a wrong” to herself, i. e., a violation of her own right, and not merely a wrong to some one else, nor conduct “wrongful” because unsocial, but not “a wrong” to any one. We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension (Seavey, Negligence, Subjective or Objective, 41 H. L. Rv. 6; Boronkay v. Robinson & Carpenter, 247 N. Y. 365). This does not mean, of course, that one who launches a destructive force is always relieved of liability if the force, though known to be destructive, pursues an unexpected path. “It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye” (Munsey v. Webb, 231 U. S. 150,156; Condran v. Park & Tilford, 213 N. Y. 341, 345; Robert v. U. S. E. F. Corp., 240 N. Y. 474, 477). Some acts, such as shooting, are so imminently dangerous to any one who may come within reach of the missile, however unexpectedly, as to impose a duty of prevision not far from that of an insurer. Even today, and much oftener in earlier stages of the law, one acts sometimes at one’s peril (Jeremiah Smith, Tort and Absolute Liability, 30 H. L. Rv. 328; Street, Foundations of Legal Liability, vol. 1, pp. 77, 78). Under this head, it may be, fall certain cases of what is known as transferred intent, an act willfully dangerous to A resulting by misadventure in injury to B (Talmage v. Smith, 101 Mich. 370, 374). *345These cases aside, wrong is defined in terms of the natural or probable, at least when unintentional (Parrot v. Wells-Fargo Co. [The Nitro-Glycerine Case], 15 Wall. [U. S.] 524). The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.

Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all (Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong. Confirmation of this view will be found in the history and development of the action on the case. Negligence as a basis of civil liability was unknown to mediaeval law (8 Holdsworth, History of English Law, p. 449; Street, Foundations of Legal Liability, vol. 1, *346pp. 189, 190). For damage to the person, the sole remedy was trespass, and trespass did not lie in the absence of aggression, and that direct and personal (Holdsworth, op. cit. p. 453; Street, op. cit. vol. 3, pp. 258, 260, vol. 1, pp. 71, 74.) Liability for other damage, as where a servant without orders from the master does or omits something to the damage of another, is a plant of later growth (Holdsworth, op. cit. 450, 457; Wigmore, Responsibility for Tortious Acts, vol. 3, Essays in Anglo-American Legal History, 520, 523, 526, 533). When it emerged out of the legal soil, it was thought of as a variant of trespass, an offshoot of the parent stock. This appears in the form of action, which was known as trespass on the case (Holdsworth, op. cit. p. 449; cf. Scott v. Shepard, 2 Wm. Black. 892; Green, Rationale of Proximate Cause, p. 19). The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of action is to ignore the fundamental difference between tort and crime (Holland, Jurisprudence [12th ed.], p. 328). He sues for breach of a duty owing to himself.

The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 54; Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264; Smith v. London & S. W. Ry. Co., L. R. 6 C. P. 14; 1 Beven, Negligence, 106; Street, op. cit. vol. 1, p. 90; Green, Rationale of Proximate Cause, pp. 88, 118; cf. Matter of Polemis, L. R. 1921, 3 K. B. 560; 44 Law Quarterly Review, 142). There is room for *347argument that a distinction is to be drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it threatens an insignificant invasion of an interest in property results in an unforseeable invasion of an interest of another order, as, e. g., one of bodily security. Perhaps other distinctions may be necessary. We do not go into the question now. The consequences to be followed must first be rooted in a wrong.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.

Andrews, J.

(dissenting). Assisting a passenger to board a train, the defendant’s servant negligently knocked a package from his arms. It fell between the platform and the cars. Of its contents the servant knew and could know nothing. A violent explosion followed. The concussion broke some scales standing a considerable distance away. In falling they injured the plaintiff, an intending passenger.

Upon these facts may she recover the damages she has suffered in an action brought against the master? The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative concept — the breach of some duty owing to a particular person or to particular persons? Or where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger? This is not a mere dispute as to words. We might not believe that to the average mind the dropping of the bundle would seem to involve the probability of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt the second hypoth*348esis we have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.

Negligence may be defined roughly as an act or omission which unreasonably does or may affect the rights of others, or which unreasonably fails to protect oneself from the dangers resulting from such acts. Here I confine myself to the first branch of the definition. Nor do I comment on the word “unreasonable.” For present purposes it sufficiently describes that average of conduct that society requires of its members.

There must be both the act or the omission, and the right. It is the act itself, not the intent of the actor, that is important. (Hover v. Barkhoof, 44 N. Y. 113; Mertz v. Connecticut Co., 217 N. Y. 475.) In criminal law both the intent and the result are to be considered. Intent again is material in tort actions, where punitive damages are sought, dependent on actual malice — not on merely reckless conduct. But here neither insanity nor infancy lessens responsibility. (Williams v. Hays, 143 N. Y. 442.)

As has been said, except in cases of contributory negligence, there must be rights which are or may be affected. Often though injury has occurred, no rights of him who suffers have been touched. A licensee or trespasser upon my land has no claim to affirmative care on my part that the land be made safe. (Meiers v. Koch Brewery, 229 N. Y. 10.) Where a railroad is required to fence its tracks against cattle, no man’s rights are injured should he wander upon the road because such fence is absent. (Di Caprio v. N. Y. C. R. R., 231 N. Y. 94.) An unborn child may not demand immunity from personal harm. (Drobner v. Peters, 232 N. Y. 220.)

But we are told that “there is no negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff *349himself and not merely to others.” (Salmond Torts [6th ed.], 24.) This, I think too narrow a conception. Where there is the unreasonable act, and some right that may be affected there is negligence whether damage does or does not result. That is immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only to those who happen to be within the radius of danger but to all who might have been there — a wrong to the public at large. Such is the language of the street. Such the language of the courts when speaking of contributory negligence. Such again and again their language in speaking of the duty of some defendant and discussing proximate cause in cases where such a discussion is wholly irrelevant on any other theory. (Perry v. Rochester Line Co., 219 N. Y. 60.) As was said by Mr. Justice Holmes many years ago, “the measure of the defendant’s duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another.” (Spade v. Lynn & Boston R. R. Co., 172 Mass. 488.) Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B or C alone.

It may well be that there is no such thing as negligence in the abstract. “Proof of negligence in the air, so to speak, will not do.” In an empty world negligence would not exist. It does involve a relationship between man and his fellows. But not merely a relationship between man and those whom he might reasonably expect his act would injure. Rather, a relationship between him and those whom he does in fact injure. If his act has a tendency to harm some one, it harms him a mile away as surely as it does those on the scene. We now permit children to recover for the negligent killing of the father. It was never prevented on the theory that no duty was owing to them. A husband may be compensated for *350the loss of his wife’s services. To say that the wrongdoer was negligent as to the husband as well as to the wife is merely an attempt to fit facts to theory. An insurance company paying a fire loss recovers its payment of the negligent incendiary. We speak of subrogation— of suing in the right of the insured. Behind the cloud of words is the fact they hide, that the act, wrongful as to the insured, has also injured the company. Even if it be true that the fault of father, wife or insured will prevent recovery, it is because we consider the original negligence not the proximate cause of the injury. (Pollock, Torts [12th ed.], 463.)

In the well-known Polemis Case (1921, 3 K. B. 560), Scrutton, L. J., said that the dropping of a plank was negligent for it might injure “workman or cargo or ship.” Because of either possibility the owner of the vessel was to be made good for his loss. The act being wrongful the doer was liable for its proximate results. Criticized and explained as this statement may have been, I think it states the law as it should be and as it is. (Smith v. London & Southwestern Ry. Co., [1870-71] 6 C. P. 14; Anthony v. Staid, 52 Mass. 290; Wood v. Penn. R. R. Co., 177 Penn. St. 306; Trashansky v. Hershkovitz, 239 N. Y. 452.)

The proposition is this. Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining but this is not a duty to a particular individual because as to him harm might be expected. Harm to some one being the natural result of the act, not only that one alone, but all those in fact injured may complain. We have never, I think, held otherwise. Indeed in the Di Caprio case we said that a breach of a *351general ordinance defining the degree of care to be exercised in one’s calling is evidence of negligence as to every one. We did not limit this statement to those who might be expected to be exposed to danger. Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt.

If this be so, we do not have a plaintiff suing by “derivation or succession.” Her action is original and primary. Her claim is for a breach of duty to herself — not that she is subrogated to any right of action of the owner of the parcel or of a passenger standing at the scene of the explosion.

The right to recover damages rests on additional considerations. The plaintiff’s rights must be injured, and this injury must be caused by the negligence. We build a dam, but are negligent as to its foundations. Breaking, it injures property down stream. We are not liable if all this happened because of some reason other than the insecure foundation. But when injuries do result from our unlawful act we are liable for the consequences. It does not matter that they are unusual, unexpected, unforeseen and unforseeable. But there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former.

These two words have never been given an inclusive definition. What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations, as does the existence of negligence itself. Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered by other causes also. Yet it will be forever the resultant of all causes combined. Each one will have an influence. How great only omniscience can say. You may speak of a chain, or if you please, a net. An analogy is of little aid. *352Each cause brings about future events. Without each the future would not be the same. Each is proximate in the sense it is essential. But that is not what we mean by the word. Nor on the other hand do we mean sole cause. There is no such thing.

Should analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its journey, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred sources. No man may say whence any drop of water is derived. Yet for a time distinction may be possible. Into the clear creek, brown swamp water flows from the left. Later, from the right comes water stained by its clay bed. The three may remain for a space, sharply divided. But at last, inevitably no trace of separation remains. They are so commingled that all distinction is lost.

As we have said, we cannot trace the effect of an act to the end, if end there is. Again, however, we may trace it part of the way. A murder at Serajevo may be the necessary antecedent to an assassination in London twenty years hence. An overturned lantern may burn all Chicago. We may follow the fire from the shed to the last building. We rightly say the fire started by the lantern caused its destruction.

A cause, but not the proximate cause. What we do mean by the word “proximate” is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks from my burning haystack set on fire my house and my neighbor’s. I may recover from a negligent railroad. He may not. Yet the wrongful act as directly harmed the one as the other. We may regret that the line was drawn just where it was, but drawn somewhere it had to be. We said the act of the railroad was not the proximate cause of our neighbor’s fire. Cause it surely was. The words we used were *353simply indicative of our notions of public policy. Other courts think differently. But somewhere they reach the point where they cannot say the stream comes from any one source.

Take the illustration given in an unpublished manuscript by a distinguished and helpful writer on the law of torts. A chauffeur negligently collides with another car which is filled with dynamite, although he could not know it. An explosion follows. A, walking on the sidewalk nearby, is killed. B, sitting in a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a block away, is similarly injured. And a further illustration. A nursemaid, ten blocks away, startled by the noise, involuntarily drops a baby from her arms to the walk. We are told that C may not recover while A may. As to B it is a question for court or jury. We will all agree that the baby might not. Because, we are again told, the chauffeur had no reason to believe his conduct involved any risk of injuring either C or the baby. As to them he was not negligent.

But the chauffeur, being negligent in risking the collision, his belief that the scope of the harm he might do would be limited is immaterial. His act unreasonably jeopardized the safety of any one who might be affected by it. C’s injury and that of the baby were directly traceable to the collision. Without that, the injury would not have happened. C had the right to sit in his office, secure from such dangers. The baby was entitled to use the sidewalk with reasonable safety.

The true theory is, it seems to me, that the injury to C, if in truth he is to be denied recovery, and the injury to the baby is that their several injuries were not the proximate result of the negligence. And here not what the chauffeur had reason to believe would be the result of his conduct, but what the prudent would foresee, may have a bearing. May have some bearing, for the prob*354lem of proximate cause is not to be solved by any one consideration.

It is all a question of expediency. There are no fixed rules to govern our judgment. There are simply matters of which we may take account. We have in a somewhat different connection spoken of “the stream of events.” We have asked whether that stream was deflected — whether it was forced into new and unexpected channels. (Donnelly v. Pierey Contracting Co., 222 N. Y. 210). This is rather rhetoric than law. There is in truth little to guide us other than common sense.

There are some hints that may help us. The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. The court must ask itself whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes? Is the effect of cause on result not too attentuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or by the exercise of prudent foresight could the result be foreseen? Is the result too remote from the cause, and here we consider remoteness in time and space. (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, where we passed upon the construction of a contract — but something was also said on this subject.) Clearly we must so consider, for the greater the distance either in time or space, the more surely do other causes intervene to affect the result. When a lantern is overturned the firing of a shed is a fairly direct consequence. Many things contribute to the spread of the conflagration — the force of the wind, the direction and width of streets, the character of intervening structures, other factors. We draw an uncertain and wavering line, but draw it we must as best we can.

Once again, it is all a question of fair judgment, always *355keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.

Here another question must be answered. In the case supposed it is said, and said correctly, that the chauffeur is liable for the direct effect of the explosion although he had no reason to suppose it would follow a collision. “The fact that the injury occurred in a different manner than that which might have been expected does not prevent the chauffeur’s negligence from being in law the cause of the injury.” But the natural results of a negligent act — the results which a prudent man would or should foresee — do have a bearing upon the decision as to proximate cause. We have said so repeatedly. What should be foreseen? No human foresight would suggest that a collision itself might injure one a block away. On the contrary, given an explosion, such a possibility might be reasonably expected. I think the direct connection, the foresight of which the courts speak, assumes prevision of the explosion, for the immediate results of which, at least, the chauffeur is responsible.

It may be said this is unjust. Why? In fairness he should make good every injury flowing from his negligence. Not because of tenderness toward him we say he need not answer for all that follows his wrong. We look back to the catastrophe, the fire kindled by the spark, or the explosion. We trace the consequences — not indefinitely, but to a certain point. And to aid us in fixing that point we ask what might ordinarily be expected to follow the fire or the explosion.

This last suggestion is the factor which must determine the case before us. The act upon which defendant’s liability rests is knocking an apparently harmless package onto the platform. The act was negligent. For its proximate consequences the defendant is liable. If its contents were broken, to the owner; if it fell upon and crushed a passenger’s foot, then to him. If it exploded *356and injured one in the immediate vicinity, to him also as to A in the illustration. Mrs. Palsgraf was standing some distance away. How far cannot be told from the record — apparently twenty-five or thirty feet. Perhaps less. Except for the explosion, she would not have been injured. We are told by the appellant in his brief “it cannot be denied that the explosion was the direct cause of the plaintiff’s injuries.” So it was a substantial factor in producing the result — there was here a natural and continuous sequence — direct connection. The only intervening cause was that instead of blowing her to the ground the concussion smashed the weighing machine which in turn fell upon her. There was no remoteness in time, little in space. And surely, given such an explosion as here it needed no great foresight to predict that the natural result would be to injure one on the platform at no greater distance from its scene than was the plaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken glass, by wreckage of machines or structures no one could say. But injury in some form was most probable.

Under these circumstances I cannot say as a matter of law that the plaintiff’s injuries were not the proximate result of the negligence. That is all we have before us. The court refused to so charge. No request was made to submit the matter to the jury as a question of fact, even would that have been proper upon the record before us.

The judgment appealed from should be affirmed, with costs.

Pound, Lehman and Kellogg, JJ., concur with Cardozo, Ch. J.; Andrews, J., dissents in opinion in which Crane and O’Brien, JJ., concur.

Judgment reversed, etc.

Justice ABBOTT

delivered a plurality opinion,

in which Justice HECHT and Justice OWEN join.

While driving late one night in the downtown Houston area, Angela Holder was stopped for an alleged traffic violation by Calvin Potter, an on-duty Houston police officer. Potter took Holder’s insurance and identification cards and told her to follow his squad car. Holder followed Potter several blocks to a parking garage owned by Mellon Mortgage Company. Once inside the garage, Potter sexually assaulted Holder in his squad car.

Holder sued Mellon and the City of Houston but did not sue her attacker. The trial court granted summary judgment for Mellon and the City on all of Holder’s claims. The court of appeals affirmed the summary judgment in favor of the City on the basis of sovereign immunity. With regard to Holder’s claims against Mellon, the court of appeals affirmed the summary judgment on Holder’s negligence per se claim, but reversed on the negligence, gross negligence, and loss of consortium1 claims. On petition for review to this Court, Mellon claims, among other things, that it owed no legal duty to Holder. Because we hold that it was not foreseeable to Mellon that a person would be accosted several blocks from Mellon’s *655garage and forced to drive to that garage where she would be sexually assaulted, Mellon owed no duty to Holder to prevent the attack. Accordingly, we reverse the court of appeals’ judgment and render judgment that Holder take nothing.2

I

With regard to criminal acts of third parties, property owners owe a duty to those who may be harmed by the criminal acts only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998). We focus our attention in this case on “foreseeability.” For most premises liability cases, the foreseeability analysis will be shaped by determining whether the plaintiff was an invitee, a licensee, or a trespasser. Because Holder was an unforeseeable victim regardless of her status, it is unnecessary to determine into which of the three categories she falls. Instead, we focus on general foreseeability principles that limit the scope of the defendant’s duty in this case.3

We have repeatedly stated that “[f]oreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable.” Walker v. Harris, 924 S.W.2d 875, 377 (Tex.1996); see also Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 551 (Tex.1985). We have also frequently stated a two-prong test for foreseeability:

[I]t is not required that the particular accident complained of should have been foreseen. All that is required is [1] “that the injury be of such a general character as might reasonably have been anticipated; and [2] that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.”

Id. at 551 (citations and emphasis omitted); see also Texas Cities Gas Co. v. Dickens, 140 Tex. 433, 168 S.W.2d 208, 212 (1943); San Antonio & A.P. Ry. Co. v. Behne, 231 S.W. 354, 356 (Tex. Comm’n App.1921, judgm’t adopted). Thus, we consider not only the foreseeability of the general criminal act but also the foreseeability that the victim might be injured by the act. Stated more broadly, we determine both the foreseeability of the general danger and the foreseeability that a particular plaintiff— or one similarly situated — would be harmed by that danger.

This duty analysis has been widely embraced since Chief Judge Cardozo penned the seminal Palsgraf opinion. See Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928). Palsgraf teaches that the duty question properly considers the foreseeability of the injured party. Mrs. Palsgraf was standing on a platform at the defendant’s railroad waiting for a train. Some distance away, porters tried to help a passenger board a train. As they assisted him, they dislodged a package of fireworks he was carrying. The package fell to the rails and exploded, knocking over scales and injuring Mrs. Palsgraf. See id. at 99.

The court held that, regardless of whether the railroad might have acted in a generally wrongful manner, it was not negligent with regard to Mrs. Palsgraf. See id. As Chief Judge Cardozo explained, ‘What the plaintiff must show is ‘a wrong’ to herself; i.e., a violation of her own right, and not merely a wrong to some one else....” Id. at 100. Because the plaintiff was not so situated to the wrongful act that her injury might reasonably have been foreseen, the defendant did not owe a *656duty to protect her from the resulting injury. “ ‘Proof of negligence in the air, so to speak, 'will not do.’ ... The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” Id. at 99, 100 (emphasis added). Because the railroad owed no duty to Mrs. Palsgraf, it was unnecessary to consider any question of proximate cause.

The Palsgraf dissent, however, illustrates the counter view that duty is owed generally and any limitations on liability should be through “proximate cause,” in which “foreseeability” must necessarily play a greater role than in the duty analysis. Writing for the dissent, Judge Andrews rejected the court’s view that the duties owed by a defendant were the particularized product of a relationship determined in part by foreseeability. “Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone.” Id. at 103 (Andrews, J., dissenting). The Palsgraf dissent, like the dissent in this case, appears to contend that consideration of a particular plaintiffs relation to an alleged wrongful act is better considered under the guise of proximate cause.

Although judges and scholars have long debated the relative merits of the two views, the gist of Chief Judge Cardozo’s duty analysis has been widely embraced. Compare 3 Harper et al., The Law of Torts § 18.2, at 654-55 (2d ed.1986); Restatement (Second) of ToRts § 281 cmt. c (1965); Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 Vand. L. Rev. 1, 3-5 (1998); and Green, Proximate Cause in Texas Negligence Law, 28 Tex. L.Rev. 471, 472 (1950); with Keeton et al., Prosser and Keeton on the Law of Torts § 43, at 287 (5th ed.1984). The Restatement (Second) of Torts states:

In order for the actor to be negligent with respect to the other, his conduct must create a recognizable risk of harm to the other individually, or to a class of persons — as, for example, all persons within a given area of danger — of which the other is a member. If the actor’s conduct creates such a recognizable risk of harm only to a particular class of persons, the fact that it in fact causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not make the actor liable to the persons so injured.

Restatement (Second) of Torts § 281 cmt. c (1965); see also 4 Harper et al., supra, § 20.5, at 138 (the scope of a duty is limited to “(1) those persons that are likely to be endangered by the act or omission, and (2) harm (to such person or interest) from a risk the likelihood of which made the act or omission negligent”). The result of this analysis is that “[a] plaintiff has no right of action unless there was a wrong relative to her or a violation of her right, and there is no such relational wrong or personal-rights violation in a negligence case where the duty to avoid foreseeable risk to the plaintiff has not been breached.” Zipursky, supra, at 15; see also Nixon, 690 S.W.2d at 551. A wrong in general is not enough; the plaintiff herself must be wronged. See Zipursky, supra, at 12.

When we consider whether a particular criminal act was so foreseeable and unreasonable as to impose a duty upon a landowner, we first examine the particular criminal conduct that occurred in light of “specific previous crimes on or near the premises.” Walker, 924 S.W.2d at 377. If, after applying the Timberwalk factors of similarity, recency, frequency, and publicity, see Timberwalk, 972 S.W.2d at 756-57, we determine that the general danger of the criminal act was foreseeable, we then apply the second prong of the foreseeability analysis and determine whether *657it was foreseeable that the injured party, or one similarly situated, would be the victim of the criminal act. In essence, we consider whether the plaintiff was within the range of the defendant’s apprehension such that her injury was foreseeable. See Palsgraf, 162 N.E. at 99-100. Only when we have analyzed the criminal act within the context in which it occurred can we determine whether the landowner owed a duty to the injured party. See, e.g., Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995) (when determining whether a duty lies, we must consider all “the facts surrounding the occurrence in question”).

Applying the Timberwalk factors, it was not unforeseeable as a matter of law that a rape might occur in the parking garage. Although no similar violent crimes had occurred in the parking garage before the attack on Holder, the summary judgment evidence shows that in the two years preceding the incident, 190 violent crimes, including rape and murder, were reported near the garage. This equates to a frequency of roughly one violent crime every four days.

While there is no evidence that any of these crimes received publicity and Mellon was not required to inspect police records to determine whether its garage was in a high crime area, the summary judgment evidence establishes that Mellon was aware that property crimes had occurred, including the theft of a Mellon employee’s car. Another Mellon employee complained to the garage manager “about the virtually non-existent security” in the garage, which compelled the employee to seek an escort to her car when she worked late. Furthermore, Mellon knew that vagrants frequented the garage and sometimes drank there.

Together, these facts constitute some evidence that violent criminal conduct was foreseeable. But while it may have been foreseeable that a violent crime such as rape might occur, this does not end our analysis. We must also consider whether Holder was situated such that Mellon could foresee that she would be the victim of this third-party criminal act. See Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939); Restatement (Second) of ToRts § 281 emt. c (1965). The facts of this case fall squarely within the second prong of the foreseeability analysis and show that Mellon could not have reasonably foreseen that its failure to secure the garage would lead to Holder’s injuries.

Certainly, Mellon expected that its employees would use the garage, often at times when it would be relatively vacant and thus more dangerous. It is not unreasonable to conclude that Mellon could foresee that an employee or some other person who frequents the garage could be the victim of a violent crime in the garage. To protect these garage users, Mellon provided armed security patrols weekdays from 5:45 a.m. to 11:30 p.m., in addition to random patrols by off-duty police officers during business hours. Holder, however, was not a member of this class nor any other that Mellon could have reasonably foreseen would be the victim of a criminal act in its garage.

Unlike any foreseeable victim, Holder was pulled over in her car at 3:30 a.m. by a third party over whom Mellon had no control, and she was led from several blocks away to the actual crime scene. Not only did Mellon have no control over the criminal, Potter, it had no knowledge of him nor any reason to know that he would pick the garage as the scene of his reprehensible crime. Moreover, Mellon had no knowledge of Holder nor any reason to believe that she, or a person similarly situated, could be subject to a crime on Mellon’s property. It simply was not foreseeable, beyond a remote philosophic sense, that this tragic event would occur to Holder on Mellon’s property. With relation to Mellon’s allegedly wrongful act of not securing its garage at three in the morning, Holder was not so situated that injury to her might reasonably have been foreseen. She was, in short, beyond Mellon’s reasonable apprehension.

*658Holder argues that Mellon- knew that the condition of its garage created an unreasonable and extreme degree of risk that an attack such as this would occur. However, nothing in Holder’s summary judgment evidence suggests that Mellon could have reasonably foreseen that its garage would be picked by Potter as the scene of his crime if it did not secure its garage. The mere fact that crimes are prevalent in downtown Houston is not enough. See Timberwalk, 972 S.W.2d at 756. Examining the evidence, it is true that Mellon was aware that a car had been stolen from its garage, but this does not indicate that the garage would be used as a place to bring Holder. It is also true that Mellon was aware that vagrants frequented the garage, but this does not suggest that it was a place that invited criminals to transport victims there. Holder’s summary judgment evidence provides little more than “proof of negligence in the air.” Palsgraf, 162 N.E. at 99. She provides no evidence of a foreseeable risk in relation to her.

In the end, Holder points again and again to the fact that Mellon was aware that cars could enter its garage without authorization. But to base foreseeability on this fact, without more, would effectively place a universal duty on any landowner with secluded property to prevent that property from becoming the scene of a crime. Whether it be a farmer’s field, an industrial park, or a twenty-four-hour laundromat, placing a duty on landowners to prevent criminal acts on their property simply because criminals could gain access to their land would make landowners the insurers of crime victims, regardless of the lack of connection between the landowner and either the victim or the perpetrator. “Courts across the country agree that an owner or possessor of property is not an insurer of the safety of those on the premises.” Lefmark Management Co. v. Old, 946 S.W.2d 52, 59 (Tex.1997) (Owen, J., concurring) (citing Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1998); Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207, 215-16 (1993); and Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477, 487 (D.C.Cir.1970)); see also Restatement (Second) of ToRts § 344 cmt. f (1965) (“[T]he possessor is not an insurer of the visitor’s safety....”).

Accordingly, Mellon owed no legal duty to Holder. To the extent that Mellon’s conduct may have created a risk of harm, it did not breach a duty to Holder because she was not so situated with relation to the wrongful aet such that her injury might have been foreseen.

II

The dissent implies that this analysis is inconsistent with Nixon. In Nixon, however, the Court did not discuss or analyze the common law aspects of duty. Instead, the Court held that the duty owed by the defendant was governed by an applicable ordinance. In doing so, the Court stated:

An ordinance requiring apartment owners to do their part in deterring crime is designed to prevent injury to the general public. R.M.V. falls within this class. Since the ordinance was meant to protect a larger class than invitees and licensees, and since R.M.V. committed no wrong in coming onto the property, these premises liability distinctions are irrelevant to our analysis.

Nixon, 690 S.W.2d at 549. Thus, the ordinance defined the scope of the second prong of foreseeability: “that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.” Id. at 551 (citations omitted).

Moreover, in considering the foreseeability aspect of proximate cause in Nixon, the Court’s discussion and its use of italics make clear that it focused solely on the first prong of foreseeability: that “[i ]t is not required that the particular accident complained of should have been foreseen. All that is required is that the injury be of such a general character as might reason *659 ably have been anticipated .... ” Id. (citations omitted). In its proximate cause analysis, the Nixon Court did not discuss, italicize, or otherwise analyze the second prong of foreseeability. Thus, Nixon is inapposite to the analysis of this case.

The dissent also takes issue with this analysis of Mellon’s duty to Holder by claiming that it “improperly bootstraps proximate cause foreseeability into the threshold duty question.” 5 S.W.3d at 666 (O’Neill, J., dissenting). The dissent does not explain, however, how the foreseeability analysis under “proximate cause” differs from the foreseeability analysis under “duty.” Additionally, the dissent does not explain why it was not similarly improper for this Court, and other courts, to frequently use a singular foreseeability analysis interchangeably between duty and proximate cause. Furthermore, the dissent does not explain why the second prong of the foreseeability analysis — that the injured party should be so situated with relation to the wrongful act that injury to her or to one similarly situated might reasonably have been foreseen — applies only to proximate cause foreseeability and not to duty foreseeability. The dissent cannot be faulted, however, for failing to answer these questions because Texas jurisprudence on these issues has been unclear. But the answer is simple: The “foreseeability” analysis is the same for both duty and proximate cause.

The questions of duty and proximate cause “are often used in a confused and overlapping way” because both rest on a determination of “foreseeability.” 3 Harper et al., supra, § 18.1, at 650; see also Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992) (proximate cause consists of cause-in-fact and foreseeability); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990) (main determinant of duty is foreseeability). The confusion can be found, for example, in Nixon. There, foreseeability was analyzed only under the heading of “proximate cause” because the Court determined at the outset that the defendant owed the plaintiff a duty imposed by statute. See Nixon, 690 S.W.2d at 549. Yet, in defining “foreseeability” as applied to the case, the Court cited a case dealing exclusively with proximate cause, Missouri Pacific Railroad v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977); a case dealing only with duty, Castillo v. Sears, Roebuck & Co., 663 S.W.2d 60, 64 (Tex.App.—San. Antonio 1983, writ ref'd n.r.e.); and another dealing with both, Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 625, 628 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref'd n.r.e.). See Nixon, 690 S.W.2d at 550.

The confusion has been perpetuated since Nixon. In Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996), and Exxon Corp. v. Tidimll, 867 S.W.2d 19, 21 (Tex. 1993), this Court considered foreseeability as it relates to duty. In doing so, the Court cited to the Nixon foreseeability analysis, which, as has been noted, applied to proximate cause.

Interestingly, the court of appeals’ opinion in this case relies on Nixon’s discussion of foreseeability, as it was applied to causation, for support of its discussion of foreseeability as it applies to duty. 954 S.W.2d 786, 795. The court concluded that a duty was owed to Holder because, in part, her injury was foreseeable. Id. at 795. Turning to “proximate cause,” the court again considered whether Holder’s injury was foreseeable, but rather than repeat its analysis verbatim, the court simply refers to its previous discussion of foreseeability under “duty.” Id. at 801. The court relies upon a single discussion of foreseeability to establish foreseeability’s requirements for both duty and proximate cause. Neither the court of appeals in this case nor this Court in Nixon, Walker v. Harris, and Exxon Corp. v. Tidwell, were wrong for relying upon law that establishes a foreseeability standard that applies to both duty and proximate cause because the standard is the same. Consistent with that approach, it is entirely proper for the Court to apply the foreseeability *660standard stated in Nixon to the duty analysis in this case.

Justice ENOCH filed a concurring opinion.

Justice BAKER filed a concurring opinion.

Justice O’NEILL filed a dissenting opinion, in which Chief Justice PHILLIPS and Justice HANKINSON join.

Justice GONZALES did not participate in the decision.

Justice ENOCH

concurring.

I join the Court’s judgment. I can join neither the plurality opinion nor Justice Baker’s writing because I believe those opinions skip a critical step that could lead some to assume the Court has adopted a new common law duty — that a landowner has a general duty to not be negligent. That is not the law in Texas, and is not after today. Because I am concerned that this omission might mislead, I write separately.

This case presents a simple question: Whether a landowner may be held liable for injuries caused to a stranger who was brought to the premises against her will by the criminal attack of another stranger.1 To begin answering this question, I note that a landowner has no general duty to not be negligent toward those entering the land. The extent of a landowner’s liability for injuries caused by a condition existing on the land depends on the status of the injured person. Thus, the scope of a landowner’s duty depends on whether, at the time of the injury, the person on the land was an invitee, a licensee, or a trespasser.2

To invitees, the landowner owes a duty to exercise reasonable care to keep the premises in a reasonably safe condition for use by the invitee.3 To licensees, the landowner owes a duty to warn of or to make safe hidden dangers known to the landowner and a duty not to intentionally, wil-fully, or through gross negligence cause injury.4 And to trespassers, a landowner owes only a duty not to intentionally, wil-fully, or through gross negligence cause injury.5

While this traditional classification system has been subject to debate, it remains the law in Texas. Thus, I believe it must be applied in this case.

Because this case is strikingly similar to Nixon v. Mr. Property Management Co., 6 I consider that case instructive. There, ten-year-old R.M.V. was dragged into an apartment complex that she didn’t reside in by an unknown assailant and was sexually assaulted. Her next friend sued Mr. Property, the manager of the apartment complex, alleging that it breached a duty of care to R.M.V. The trial court granted summary judgment for Mr. Property. Holding that R.M.V. was a “trespasser,” and that Mr. Property’s duty was not to injure her wilfully, wantonly, or through gross negligence, the court of appeals affirmed.7

We reversed and remanded on the ground that a Dallas city ordinance requiring property owners to “keep the doors and windows of a vacant structure or va*661cant portion of a structure securely dosed to prevent unauthorized entry” imposed a standard of care on Mr. Property without regard to R.M.V.’s classification. We said:

[T]he question of what duty Mr. Property owed to R.M.V. is answered by the ordinance. This ordinance legislatively imposes a standard of conduct which we adopt to define the conduct of a reasonably prudent person- The unex-eused violation of a statute or ordinance constitutes negligence as a matter of law if such a statute or ordinance was designed to prevent injury to the class of persons to which the injured person belongs .... A reasonable interpretation of this ordinance is that it was designed to deter criminal activity by reducing the conspicuous opportunities for criminal conduct.... An ordinance requiring apartment owners to do their part in deterring crime is designed to prevent injurg to the general public. R.M.V. falls within this class. Since the ordinance was meant to protect a larger class than invitees and licensees, and since R.M.V. committed no wrong in coming onto the property, these premises liability distinctions are irrelevant to our analysis.8

The facts of this case are virtually indistinguishable from Nixon — we have an innocent victim taken against her will into a vacant area and sexually assaulted, followed by tort claims against the landowner for not taking steps to prevent the assault. But unlike the plaintiff in Nixon, Holder does not claim in this Court that an ordinance makes the traditional classification system “irrelevant.” Thus, we are left with the traditional premises liability classifications to determine Mellon’s duty.

Addressing these classifications, I note that no one asserts that Holder was an invitee. At the other end, Holder argues that because she didn’t enter Mellon’s property for her own purposes, she was not a trespasser. But the court of appeals in the Nixon case rightfully explained that the classification of visitors on one’s land “does not depend upon ... volition but upon knowledge and consent of [the landowner].”9 And that “[i]n the absence of knowledge and consent [the landowner’s] duty ... was no greater than not to ... [be wilful, wanton or grossly negligent].”10 Thus I agree with Justice O’Neill that for purposes of determining Holder’s status on Mellon’s property, the relevant question is not whether Holder meant to be in the garage, but “whether Mellon expressly or impliedly consented to [Holder’s] entry.”11 Where Justice O’Neill and I part ways is in answering this question.

Justice O’Neill concludes that there is a fact question about whether Mellon, by its conduct, impliedly granted Holder license to come into its garage.12 I disagree. First, the cases Justice O’Neill cites don’t support this conclusion. Each of these cases demonstrate a nexus between the activity during which the injury occurred and the implied license.13 ⅛ And none hold, as Justice O’Neill would, that a license implied for some is a license implied for all.14 Evidence that Mellon was aware of vagrants in the garage in no way implies that Mellon opened the garage to vehicular traffic at all hours of the day or night. And while my colleagues struggle to avoid calling Holder a “trespasser,” the summary judgment evidence establishes that *662that was her status under the nomenclature of the traditional premises liability categories. Rather than struggling with the terminology, the Court could more easily establish another less harsh-sounding term. Regardless, and accepting Holder’s blamelessness, this does not affect the legal analysis of Mellon’s duty.

As part of her argument, Holder cites section 197(1) of the Restatement (Second) of Torts. 15 She contends that she had a “privilege” to enter Mellon’s property because she was in fear for her safety, and therefore, she was not a “trespasser” for purposes of determining the scope of Mellon’s duty. This argument is incomplete. I may agree with Holder that, guided by section 197(1) of the Restatement, she was privileged to go on to Mellon’s property. But I read that section to mean only that she is relieved of liability to Mellon for having done so. Should this Court adopt section 197(1), Holder could not, as a matter of law, be liable to Mellon for entering Mellon’s garage.

But whether Holder had a privilege to be in Mellon’s garage has nothing to do with the scope of Mellon’s duty to Holder. While section 345(1) of the Restatement (Second) of Torts declares that a landowner owes the same duty to a privileged trespasser that the landowner owes a licensee,16 I would be reluctant to adopt that section. Mellon’s duty is determined by Holder’s status. And Holder’s status is determined by whether Mellon consented to her presence in the garage. Mellon’s duty to Holder can’t change simply because Holder went on the property involuntarily.

Mellon owned a parking garage in downtown Houston. The garage was not open for public use and was not used at night. Mellon’s duty to those who were on the premises without Mellon’s consent was only to not intentionally, wilfully, or through gross negligence cause them injury.

Having determined that this was the duty Mellon owed to Holder, the next inquiry would be whether Mellon met its summary judgment burden to conclusively prove that it did not intentionally, wilfully, or through gross negligence injure Holder. Mellon met that burden. Consequently, it was up to Holder to present summary judgment evidence that raised a fact issue on consent. The evidence presented by Holder does not. Thus I concur in the Court’s judgment.

Justice BAKER,

concurring.

As a general rule, a landowner has no legal duty to protect another from the criminal acts of a third party who is not under the landowner’s control or supervision. See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998); Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). To the extent that the law does impose a duty, the threshold issue is whether the risk of harm was foreseeable. See Timbenualk, 972 S.W.2d at 756; Walker, 924 S.W.2d at 377. I conclude as a matter of law that, under the record here, Mellon could not foresee the risk that a sexual assault would occur in its employee parking garage. Therefore, I agree with the plurality’s conclusion that Mellon did not owe Holder a duty. I cannot agree, however, with the plurality’s duty analysis. Therefore, I concur in the judgment and write separately.

I. THE PLURALITY

The plurality relies on Palsgraf v. Long Island Railroad, for its two-prong foreseeability test for duty. See Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928). But even the plurality’s cited authorities recognize that, contrary to the opinion’s claim, Palsgraf’s two-prong duty analysis has not been “widely embraced.” *6635 S.W.3d 654, 655; see Restatement (Second) of Torts § 281 Reporter’s Notes (1966) (noting that Palsgraf is “controversial” and that, as late as 1966, the decisions on facts that are at all analogous to Pals-graf s facts are “few and divided.”); Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 Vand. L.Rev. 1, 3 (1998)(“Leading scholars treat Palsgraf as a proximate cause case.... Cordozo’s own reasoning in Palsgraf is typically ignored or derided.”); see also Powers, Judge and Jury in the Texas Supreme Court, 75 Tex. L.Rev. 1699, 1702-03 (1997) (explaining that Dean Keeton’s approach to duty and proximate cause, in which questions about whether a defendant’s liability extends to a particular type of plaintiff are questions of proximate cause and not duty, has prevailed in Texas). Further, as the plurality concedes, the Texas cases it cites for the two-prong foreseeability analysis discuss foreseeability only in the context of proximate cause, not duty. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549-50 (Tex.1985); Texas Cities Gas Co. v. Dickens, 140 Tex. 433, 168 S.W.2d 208, 212 (1943); Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849-50 (1939); San Antonio & A.P. Ry. v. Behne, 231 S.W. 354, 356 (Tex.1921). Moving the determination of whether harm to a certain class of potential plaintiffs is foreseeable from the proximate cause analysis to the duty analysis changes Texas law in this type of case. It also changes the law in every negligence case that requires a duty analysis as a threshold issue. More importantly, it shifts the allocation of power in such cases. See Powers, Judge and Jury in the Texas Supreme Court, 75 Tex. L.Rev. at 1703. Traditionally, duty is a threshold legal issue the court properly decides. See Walker, 924 S.W.2d at 377; Powers, Judge and Jury in the Texas Supreme Court, 75 Tex. L.Rev. at 1703. Proximate cause is usually a jury issue. See Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.1970); City of Houston v. Jean, 517 S.W.2d 596, 599 (Tex.Civ.App.— Houston [1st Dist.] 1974, writ ref'd n.r.e.); see also Flores v. Sullivan, 112 S.W.2d 321, 323 (Tex.Civ.App.— San Antonio 1937), rev’d on other grounds, 134 Tex. 55, 132 S.W.2d 110 (Tex.1939); Powers, Judge and Jury in the Texas Supreme Court, 75 Tex. L.Rev. at 1703. Consequently, changing the duty analysis to include the traditional proximate cause foreseeability test allocates more power to trial judges, as well as appellate judges, to decide questions traditionally and properly reserved for the jury.

Rather than change the law of duty to add a second-prong foreseeability analysis, we need only consider the Timberwalk factors — similarity, proximity, recency, frequency, and publicity — to analyze foreseeability within the duty context as it arises here. See Timberwalk, 972 S.W.2d at 759.

II. FORESEEABILITY

Common-law negligence consists of these elements: (1) a legal duty; (2) a breach of that duty; and (3) damages proximately resulting from the breach. See El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Duty is the threshold inquiry, which is a question of law for the court to decide. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). As a general rule, a landowner has no duty to prevent criminal acts of third parties who are not under the landowner’s control or supervision. See Timberwalk, 972 S.W.2d at 756; Walker, 924 S.W.2d at 377; Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993). To the extent that the law does impose a duty, foreseeability is the initial analysis. See Timberwalk, 972 S.W.2d at 756; Walker, 924 S.W.2d at 377. Only after foreseeability is established must we determine the parameters of the duty. See Timberwalk, 972 S.W.2d at 757.

In Timberwalk, this Court stated the factors courts should consider in determining if criminal conduct on a landowner’s property is foreseeable: (1) whether any criminal conduct previously occurred on or *664near the property; (2) how recently it occurred; (3) how often it occurred; (4) how similar the conduct was to the conduct on the property; and (5) what publicity the occurrences received to show that the landowner knew or should have known about them. See Timberwalk, 972 S.W.2d at 757-58. We summarize these foreseeability factors as similarity, proximity, recency, frequency, and publicity of previous criminal conduct. See Timberwalk, 972 S.W.2d at 759. Courts must consider all the factors together. See Timberwalk, 972 S.W.2d at 759.

Past crimes must be sufficiently similar, though not identical, to the crime at issue to put the landowner on notice of the specific danger. See Timberwalk, 972 S.W.2d at 758. For example, automobile vandalism in an apartment complex does not put the landowner on notice of the likelihood of a sexual assault. See Timberwalk, 972 S.W.2d at 758.

Proximity requires evidence of other crimes on or in the property’s immediate vicinity. See Timberwalk, 972 S.W.2d at 757. Evidence of criminal activity occurring farther from the landowner’s property is less relevant than past criminal activity in the specific area at issue. See Timberwalk, 972 S.W.2d at 757.

Foreseeability also depends on the re-cency of past criminal conduct. See Timberwalk, 972 S.W.2d at 757-58. A significant number of crimes occurring in a short time period on or near the property makes the crime in question more foreseeable. See Timberwalk, 972 S.W.2d at 758.

Publicity of prior crimes strengthens the claim that a particular crime was foreseeable because a property owner can be expected to have knowledge of such criminal activity. See Timberwalk, 972 S.W.2d at 758. Landowners, however, have no duty to inspect criminal records to determine the risk of crime in the area. See Timberwalk, 972 S.W.2d at 759.

III. ANALYSIS

Mellon is entitled to summary judgment if it can establish as a matter of law that the sexual assault in Mellon’s parking garage was not foreseeable. Forseeablilty requires an analysis of frequency, recency, publicity, and similarity of previous criminal activity. See Timberwalk, 972 S.W.2d at 759. In reviewing a summary judgment, we assume all evidence favorable to the nonmovant to be true. See Nixon, 690 S.W.2d at 548-49.

Mellon’s garage is in downtown Houston. In the twenty-two months before Holder’s assault, 190 violent crimes had occurred within a one-quarter mile radius of the garage. The year that Holder was sexually assaulted, 88 violent crimes occurred in the area surrounding the garage: 4 sexual assaults, 57' robberies, and 27 aggravated assaults. Indeed, Holder’s expert, relying on police reports, testified that there were high crime rates in the area surrounding Mellon’s garage. But “[t]he frequent occurrence of property crimes in the vicinity is not as indicative of foreseeability as the less frequent occurrence of personal crimes on the landowner’s property itself.” Timberwalk, 972 S.W.2d at 759. The only evidence of criminal activity in Mellon’s garage is evidence of vagrancy and automobile theft. There is no evidence of personal crimes occurring in the garage.

On the publicity of criminal activity in the area, Holder complains that Mellon did not regularly check Houston police records. But landowners have no duty to regularly inspect criminal records to determine the risk of crime in the area. Nevertheless, two Mellon employees had written memos to Mellon in response to auto thefts occurring when the garage was occupied by employees’ vehicles. One of the memos discussed a crime increase in the area surrounding the garage. But its author testified that he based his information on rumors he had heard from other Mellon employees. Mellon responded to these memos by employing armed security *665guards during hours that Mellon employees would be using the garage. Mellon also provided security escorts for Mellon employees going to and from the garage.

The fact that there may have been frequent and recent criminal activity in the area surrounding the garage and that Mellon knew about certain criminal activities occurring in its garage does not alone mean that a sexual assault in the garage was foreseeable. We have stated that the frequency of previous crimes necessary to show foreseeability lessens as the similarity of the previous crimes to the incident at issue increases. See Timberwalk, 972 S.W.2d at 759. The converse is also true — the less similar previous crimes are to the one at issue, the frequency necessary to show foreseeability increases. Thus, we must consider whether such criminal activity was similar to the crime at issue. There is no summary judgment evidence that violent or personal crimes had occurred in Mellon’s garage. The evidence only shows that automobile thefts during business hours and vagrancy had occurred in the garage. Automobile thefts and vagrancy do not suggest the likelihood of sexual assault. See Timberwalk, 972 S.W.2d at 758. Nor is there summary judgment evidence that any of the four reported sexual assaults in the area surrounding the garage occurred in either a public or private parking garage or were otherwise similar to Holder’s.

Considering the summary judgment evidence here and all the Timberwalk factors, I conclude that although there is evidence of frequent and recent criminal activity in the area surrounding Mellon’s garage, and evidence that Mellon knew of vagrancy and automobile thefts in the garage itself, it was not foreseeable to Mellon that a sexual assault would occur in its garage.

IV. THE DISSENT

The dissent misstates our view when it claims we discount the two employee memos. To the contrary, the memos are relevant to show that the nature of the crimes reported in Mellon’s garage were auto thefts and vagrancy, not violent crimes against persons. The dissent also argues that we completely disregard the nature and character of the premises at issue. Although the Timberwalk factors are not exclusive, nothing in Timberwalk suggests that a court must take into account the nature and character of the premises at issue. By citing Gomez v. Ticor, the dissent argues that all parking garage owners should inherently foresee rapists lying in wait for unsuspecting victims at all hours of the day and night. 5 S.W.3d 654, 669 (citing Gomez v. Ticor, 145 Cal.App.3d 622, 628, 193 Cal.Rptr. 600 (1983)). In effect, the dissent would make all property owners insurers of the general public. This is not the rule in Texas. See Lefmark Management Co. v. Old, 946 S.W.2d 52, 59 (Owen, J., concurring); see also Timberwalk, 972 S.W.2d at 756; Walker, 924 S.W.2d at 377. The flaw in the dissent’s analysis is that the dissent fails to properly consider all the Timberwalk factors together. See Timberwalk, 972 S.W.2d at 759.

V. CONCLUSION

Because I would hold that Mellon could not foresee a sexual assault in its garage, and therefore, did not owe Holder a duty as a matter of law, I concur in the judgment.

Justice O’NEILL,

dissenting, joined by Chief Justice PHILLIPS and Justice HANKINSON.

In three opinions applying three different rationales, a divided Court concludes that Mellon is entitled to summary judgment. These opinions, none of which carries a majority, alternately conclude that (1) the crime victim was not foreseeable, (2) the crime committed was not foreseeable, and (3) Holder was a trespasser toward whom Mellon fulfilled its duty. I cannot agree, in light of the summary judgment evidence, that any of these fac*666tors was established as a matter of law. Accordingly, I respectfully dissent.

I

Foreseeability of Plaintiff

Applying the Timberwalk factors, the plurality concludes, as I do, that there is some evidence to show that violent criminal conduct in Mellon’s garage was foreseeable. See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex.1998). They proceed, however, to employ a so-called “second prong” foreseeability analysis that focuses on the class of victim to determine the existence of a duty. Although this approach produces a seemingly desired result, it improperly bootstraps proximate cause foreseeability into the threshold duty question, thereby usurping the function of the traditional premises liability classifications. Whether or not the foreseeability analysis is the same for both duty and proximate cause purposes, as the plurality posits, the concept of foreseeability in the context of premises liability is embodied in the classifications that have defined a landowner’s duty for over one hundred years.

It is true that in Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985), and in two other cases cited in the plurality opinion, we stated that foreseeability requires “ ‘that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.’” Id. at 551 (Tex.1985) (quoting Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939)). But that analysis applied to the determination of proximate cause, which is typically an issue for the jury, not duty, which is typically a question for the court. Id. And if the foreseeability analysis is the same, as the plurality reasons, it is difficult to reconcile their conclusion with that reached in Nixon. On almost identical facts—a young girl was abducted from another location and sexually assaulted in an abandoned apartment — we held that a fact issue existed on whether the criminal assault was foreseeable to the management company that had left the apartment unlocked:

With a litany of prior crimes ... and with deposition testimony that vagrants frequented the area, a material fact question exists on the foreseeability of this crime as it relates to the proximate cause issue.

Id. (emphasis added). To hold now, on nearly identical facts, that foreseeability is lacking as a matter of law for duty rather than proximate cause purposes defies logic and ignores a primary function of the traditional premises liability classifications. Were we to abandon the traditional classification system and impose upon landowners a generalized duty to exercise reasonable care toward all entrants, as Holder urges, there might be a place for the “foreseeable plaintiff’ approach.1 The requirement that injury to the plaintiffs “class” be foreseeable, however, is inherent in the premises liability distinctions between “invitee,” “licensee,” and “trespasser.” Like Justice Enoch, I believe that these classifications govern our analysis. The inquiry should be whether Mellon established as a matter of law that it acted within the scope of any duty that it owed to Holder. The nature of that duty depends upon the status of the person entering the property.

Both Justices. Baker and Enoch agree that the second-prong foreseeability analysis is flawed, and decline to join the plurality opinion. Justice Baker applies the Timberwalk factors and concludes that, as a matter of law, a sexual assault in Mellon’s garage was not foreseeable. Like *667Justice Enoch and the plurality, I cannot agree that such a conclusion may be drawn from this summary judgment record.

II

Foreseeability of Crime

The summary judgment evidence shows that, from January 1, 1990, through the date of the incident, 190 violent crimes, including murders, rapes, robberies, and aggravated assaults, were reported within a quarter-mile radius of Mellon’s garage. This amounted to one reported violent crime every five days, and was enough to support a “High Crime” designation for the area in 1991 and an “Above Average” designation in 1992.

John Hilliard, a Mellon employee, testified by deposition that his Jeep was stolen out of the garage in October 1992. Hilli-ard sent a memo to the garage manager, Curtis Oblinger, among others, expressing Ms concern about a “drastic increase in crime in the surrounding area” in the previous six months. Hilliard had heard rumors of increased criminal activity from other Mellon employees, including reports of violent crime in the surrounding area. Hilliard proposed a plan for increased garage security, but Oblinger never responded to his memo.

Cathleen Hackward, another Mellon employee, sent an e-mail to Oblinger and others to “lodge a formal complaint about the virtually non-existent security for our parking garage.” She wrote that “people are free to roam through there, obviously committing crimes,” and stated that she was concerned for her personal safety. Hackward testified by deposition that she had Mellon’s security guard escort her to her car when she worked late because she did not consider it safe to go to the garage alone.

According to Hilliard, it was obvious that people were sleeping in the garage. There were blankets and newspapers rolled up “like someone was sleeping in the stairwell.” Oblinger knew that vagrants were going into the garage, and that they were drinking beer there. He did nothing, however, to prevent their entry.

Reviewing this evidence, Justice Baker concludes that “the risk that someone would be sexually assaulted in Mellon’s garage was not foreseeable to Mellon as a matter of law.” Such a conclusion drawn from this summary judgment record, in my opinion, blinks reality and strains the Timberwalk factors beyond their logical or intended reach.

Justice Baker draws a bright line between property crimes occurring inside Mellon’s garage and personal crimes occurring outside. He thus discounts the employee memos identifying property crime within the garage, and dismisses their reference to violent crime in the vicinity as “rumors.” It is clear, however, that the employees’ memos were written out of concern for their own personal safety, not just the security of their cars. The Hackward memo explicitly states, “not only am I worried about my car, but I fear for my personal safety as well.” And Hilli-ard testified in Ms deposition that the “drastic increase in crime” in the surrounding area to which Ms memo referred included reports of violent crimes, including an armed robbery. Hilliard’s memo to Oblinger suggested that the garage should be patrolled “to prohibit automobile theft and potential danger to employees.” In Timberwalk we held that, for a risk to be foreseeable, evidence of crimmal activity “either on the landowner’s property or closely nearby” may be considered. See Timberwalk, 972 S.W.2d at 757. Considering the crime that had occurred in the garage and the abundance of violent crime in the immediate area, it was entirely foreseeable that a sexual assault might occur in Mellon’s open and abandoned garage.

Justice Baker also discounts Holder’s evidence of prior violent crimes because there is no evidence “that any of the four reported sexual assaults in the area surrounding the garage occurred in either a *668public or private parking garage or were otherwise similar to Holder’s.” It is true that neither party presented evidence detailing the circumstances of the sexual assaults or other 190 violent crimes committed in the vicinity. But Timberwalk does not require such a heightened degree of similarity for purposes of determining foreseeability. See Timberwalk, 972 S.W.2d at 758. As we recognized in Timberwalk, it is difficult to compartmentalize criminal activity, and “[pjroperty crimes may expose a dangerous condition that could facilitate personal crimes.” Id. at 758. See also Galloway v. Bankers Trust Co., 420 N.W.2d 437, 439 (Iowa 1988) (stating “[w]e do not believe, however, that crimes initially directed toward property are without any probative value on the question of foreseeability of injury.”); Aaron v. Havens, 758 S.W.2d 446, 447-48 (Mo.1988) (stating “[i]t is not necessary to allege that past crimes involving entry into unauthorized places are of the same general nature as the one which gave rise to the claim.... If a burglar may enter, so may a rapist.”).

To the extent Justice Baker bases his “similarity” distinction upon the manner in which Holder was assaulted, i.e., that she was lured into the garage from another location, it is immaterial, for we have long recognized that what must be foreseeable is not the exact sequence of events that produces the criminal conduct, but only the general danger. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Lofton v. Texas Brine Corp., 777 S.W.2d 384, 387 (Tex.1989). And to the extent his distinction is based upon the differing nature of other crimes in the area, I fail to see it. In the year Holder was assaulted, four sexual assaults, fifty-seven robberies, and twenty-seven aggravated assaults occurred in close proximity to the garage. Any distinction that might be drawn between Holder’s assault and these prior violent crimes is inconsequential at best. Moreover, we stated in Timberwalk that “the frequency of previous crimes necessary to show foreseeability lessens as the similarity of the previous crimes to the incident at issue increases.” See Timberwalk, 912 S.W.2d at 759. Conversely, the similarity of previous crimes necessary to show foreseeability should lessen, to a certain extent, as the frequency of the previous crimes increases. See Jardel Co., Inc. v. Hughes, 523 A.2d 518, 525 (Del.1987) (stating “the repetition of criminal activity, regardless of its mix, may be sufficient to place the property owners on notice of the likelihood that personal injury, not merely property loss, will result.”). Here, any distinction that might be drawn between Holder’s assault and the other violent crimes diminishes in light of their sheer number.

Holder presented additional foreseeability evidence that accounts for the nature and character of the premises in issue, a parking garage, which Justice Baker’s opinion altogether disregards. While it is true that our decision in Timberwalk articulated similarity, proximity, recency, frequency, and publicity of previous criminal conduct as factors relevant to determine foreseeability, there is nothing to suggest that these factors are meant to be exclusive.2 Oblinger admitted in his deposition *669that he knew parking garages in downtown Houston are inherently susceptible to criminal activity. And the report' of Holder’s security expert, Horace Loomis, refers to “the inherently dangerous nature of unattended and unprotected parking garages.” Justice Baker’s opinion gives no consideration to the fact that the particular premises at issue may, under certain circumstances, pose a peculiar attraction for criminal misconduct. See Gomez v. Ticor, 145 Cal.App.3d 622, 628, 193 Cal.Rptr. 600 (1983) (stating that “the deserted ... nature of these structures, especially at night, makes them likely places for robbers and rapists to lie in wait”).

I agree with my fellow justices that “it was not unforeseeable as a matter of law that a rape might occur in the parking garage,” and therefore cannot join Justice Baker’s opinion. And I agree with Justice Enoch that the plurality’s analysis comes dangerously close to imposing upon landowners a general common law duty not to be negligent. Like Justice Enoch, I believe that the traditional premises liability distinctions govern our analysis. The inquiry should be whether Mellon established as a matter of law that it acted within the scope of any duty that it owed to Holder. The nature of that duty depends upon the status of the person entering the property.

Ill

Holder’s Status

At the outset, Holder urges us to abolish the traditional premises liability classifications applied by Texas courts for well over a century to determine a landowner’s duty to persons coming onto the property. That duty is defined by the entrant’s status as an invitee, licensee, or trespasser to the premises. See Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975); Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1074-75 (1941); Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S.W. 756, 757-58 (1888). According to Holder, we should follow the lead of those jurisdictions that have abrogated the traditional classification scheme, and define Mellon’s duty under ordinary negligence principles.

It is true that some jurisdictions have abolished the traditional classification scheme, regarding it as “unjust, unworkable and unpredictable.”3 See, e.g., Mi*670chael Sears, Abrogation of the Traditional Common Law of Premises Liability, 44 U. Kan. L. Rev. 175, 184 (1995). Those courts now define a landowner’s duty not in terms of the plaintiffs status, but in terms of foreseeable risk and reasonable care. See id. The California Supreme Court first articulated the rationale for doing so:

A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty.

Rowland, 70 Cal.Rptr. 97, 443 P.2d at 568. Thus, the traditional classifications have been criticized as occasioning inequitable results.

It has been noted, however, that while the movement to abolish the traditional scheme gathered momentum through the mid-1970s, it has since come to “a screeching halt.” Prosser & Keeton on the Law of Torts § 62, at 433. In the last decade, only Nevada has abolished all entrant classifications. See Moody v. Manny’s Auto Repair, 110 Nev. 320, 871 P.2d 935, 942-43 (1994). Most other jurisdictions have decided to retain the traditional classifications in some form, recognizing that their abrogation in favor of what has been criticized as “a standard with no contours” would create corresponding problems. Younce v. Ferguson, 106 Wash.2d 658, 724 P.2d 991, 995 (1986).

The premises liability classifications reflect policy judgments carefully developed over time to balance the landowner’s interest in the free use and enjoyment of his land against the interests of persons injured by the land’s condition. The categories and their corresponding duties place rational limits on the liability of landowners, assuring that property owners do not become absolute insurers against all risk of injuries that others might sustain on their property. These distinctions afford a degree of certainty to what would otherwise be an amorphous standard of liability, and provide relatively predictable rules by which landowners and entrants may assess the propriety of their conduct. As recently stated by the Supreme Court of Missouri in deciding to retain the traditional categories: “To abandon the careful work of generations for an amorphous ‘reasonable care under the circumstances’ standard seems — to put it kindly — improvident.” Carter v. Kinney, 896 S.W.2d 926, 930 (Mo.1995).

It is not surprising, then, that most jurisdictions continue to apply the traditional premises liability classifications.4 And several jurisdictions have attempted to reach a middle ground by abolishing the distinction between licensees and invitees, but retaining limited duty rules toward *671trespassers.5 While I agree that this middle road is far more compelling than the wholesale abandonment of the traditional classifications, we are not faced with that issue in this case. Because the traditional classifications are supported by many years of carefully developed law and public policy and afford relative certainty to an otherwise nebulous premises liability standard, I would decline to abandon them now. Far from “mak[ing] all property owners insurers of the general public,” as Justice Baker charges, I rely on well-established precedent in defining the duty owed to Holder by determining her status as an invitee, a licensee, or a trespasser to Mellon’s garage.

An invitee enters onto another’s land with the owner’s knowledge and for the mutual benefit of both parties. See Ro-sas, 518 S.W.2d at 536. The owner owes an invitee a duty of reasonable care to protect her from foreseeable injuries. Id. It is undisputed that Holder was not an invitee; her presence in the garage was neither for Mellon’s benefit nor with its knowledge.

The closer question is whether Holder was a licensee or a trespasser. A trespasser enters another’s property without express or implied permission. See Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302, 306 (1936); Weaver v. KFC Management, Inc., 750 S.W.2d 24, 26 (Tex.App.—Dallas 1988, writ denied). A licensee, by comparison, is a person who is privileged to enter on land only by virtue of the owner’s consent and “under such circumstances that he is not a trespasser.” Rowland v. City of Corpus Christi, 620 S.W.2d 930, 933 (Tex.Civ.App.—Corpus Christi 1981, writ ref'd n.r.e.); see also Dominguez v. Garcia, 746 S.W.2d 865, 866-67 (Tex.App.—San Antonio 1988, writ denied); Restatement (Second) of ToRts § 330 (1965). Licensees have been found to include:

those taking short cuts across the property ...; loafers, loiterers and people who come in only to get out of the weather; those in search of their children; servants or other third persons; spectators and sightseers not in any way invited to come; those who enter for social visits or personal business dealings with employees of the possessor of the land; tourists visiting a plant at their own request; those who come to borrow tools or to pick up and remove refuse or chattels for their own benefit; salesmen calling at the door of private homes, and those soliciting money for charity; and a stranger entering an office building to post a letter in a mailbox provided for the use of tenant^ only.

ProsseR and Keeton on the Law of Torts § 60, at 413 (citations omitted).

*672For purposes of distinguishing an invitee from a licensee, courts have often looked to the entrant’s purpose in coming onto the property. Thus, it has been said that a licensee’s presence on the premises is “for his own purposes, benefits, convenience or pleasure.” Rowland, 620 S.W.2d at 933; Smith v. Andrews, 832 S.W.2d 395, 397 (Tex.App.—Fort Worth 1992, writ denied). However, the traditional premises liability classifications have also been retained, in large part, to afford owners an element of certainty regarding their duty to entrants upon the property. In the present case, where it cannot be said that Holder entered the garage “for her own purposes, benefits, convenience or pleasure,” the more appropriate inquiry is whether Mellon expressly or impliedly consented to the entry. See Webster, 91 S.W.2d at 306; Rowland, 620 S.W.2d at 933; see also Restatement (Second) of Torts § 330 (1965).

It is undisputed that Holder did not have Mellon’s express consent to enter the garage. But consent to enter property may be manifested by the owner’s conduct or by the condition of the land itself. See Prosser and Keeton on the Law of Torts § 60, at 413. Situations clearly exist “where a trespass has been tolerated for such a sufficient period of time that the public believes it has the ‘permission’ of the possessor to use the property.” Murphy v. Lower Neches Valley Auth., 529 S.W.2d 816, 820 (Tex.Civ.App.—Beaumont 1975), rev’d on other grounds, 536 S.W.2d 561 (Tex.1976); see also Boydston v. Norfolk S. Corp., 73 Ohio App.3d 727, 598 N.E.2d 171 (Ohio Ct.App.1991)(stating that “[consent] can be implied from acquiescence to continued use of the property by the public”).

In Murphy v. Lower Neches Valley Authority, for example, a teenage swimmer was injured when he jumped into a canal and struck his head on a lump of clay. 529 S.W.2d at 817. The summary judgment evidence showed that boys swam in the canal every day, the defendant knew that boys swam in the canal yet never asked them to leave, and no signs prohibited their activity. Id. at 820. The court concluded that the defendant did not prove, as a matter of law, that the injured boy was a trespasser and not a licensee. Id.

Likewise, in City of El Paso v. Zarate, the plaintiff sued the City of El Paso after her two sons drowned in a muddy city pond. 917 S.W.2d 326, 329 (Tex.App.—El Paso 1996, no writ). The City claimed that the evidence was legally and factually insufficient to support the jury’s finding that the boys were licensees and not trespassers. Id. at 330. The court of appeals disagreed, holding that the City gave its implied permission to use the premises because it failed to fence the area, put up barricades, or post warning signs, even though it knew people often entered the area to remove dirt and knew that four years earlier a child almost drowned in the pond. Id. at 381. Conversely, in Smither v. Texas Utilities Electric Company, the court classified the injured party as a trespasser, rather than a licensee, when the evidence showed that efforts were made to prevent access to the premises. 824 S.W.2d 693, 694-95 (Tex.App.—El Paso 1992, writ dism’d by agt.).

That is not to say that every tolerance of an intrusion will imply an owner’s consent to enter the land. Instead, courts have articulated sound principles to determine the conditions under which consent may be inferred from the owner’s tolerance of continued trespass. First, consent to enter is not implied unless the owner has actual knowledge that people have been entering the land. Cf. Hall v. Holton, 330 So.2d 81, 83 (Fla.Dist.Ct.App.1976); Gonzalez v. Broussard, 274 S.W.2d 737, 738 (Tex.App.—San Antonio 1954, writ ref'd n.r.e.). And implied consent may only be found when an owner with actual knowledge fails to take reasonable steps to prevent or discourage those persons from entering the land. Compare Zarate, 917 S.W.2d at 331-32 (upholding trial court’s finding that plaintiff was a licensee and not a trespass*673er when defendant knew people used land but made no attempt to keep them out) with Longbottom v. Sim-Kar Lighting Fixture Co., 651 A.2d 621, 622-28 (Pa.Commw.Ct.1994) (holding that defendant school conclusively proved it did not consent to people climbing on roof when evidence showed school undertook various measures to prevent access). Finally, an owner need not take steps to evict known trespassers when doing so would be unduly burdensome or futile. See Boydston, 598 N.E.2d at 174 (quoting PROSSER and Keeton on The Law of ToRts § 60, at 414: “[T]he mere toleration of continued intrusion where objection or interference would be burdensome or likely to be futile ... is not in itself and without more a manifestation of consent”).

In the present case, the summary judgment evidence shows that Mellon knew people were using the garage on nights and weekends for drinking alcohol and sleeping, yet took no action to keep them away. There is some evidence that Mellon impliedly consented to public entry by failing to make any attempt to impede access to the garage or post no trespassing signs when it knew the public was in fact entering the garage and sleeping there. Mellon presented nothing to indicate that it would have been unduly burdensome or futile to attempt to keep the public from the garage, but rather stated only that the problem “wasn’t noteworthy of any corrective action being taken.” Based on this summary judgment record, I cannot conclude as a matter of law that Holder was a trespasser, rather than a licensee, on Mellon’s premises. See Wiley v. National Garages, Inc., 22 Ohio App.3d 57, 488 N.E.2d 915, 928 (Ohio Ct.App.1984) (conferring licensee status on plaintiff who was assaulted after parking in defendant’s parking garage on Sunday during “off hours” with owner’s implied permission). Nor do I find any support for Justice Enoch’s position that a license for the public to enter the garage on foot does not imply a license to enter by car.

When the plaintiff is a licensee, the owner is negligent with respect to the condition of the premises if

a. the condition posed an unreasonable risk of harm;

b. defendant had actual knowledge of the danger;

c. plaintiff did not have actual knowledge of the danger; and

d. defendant failed to exercise ordinary care to protect plaintiff from danger, by both failing to adequately warn plaintiff of the condition and failing to make that condition reasonably safe.

State v. Williams, 940 S.W.2d 583, 584 (Tex.1996) (per curiam opinion denying application for writ of error). Mellon’s motion for summary judgment did not address its potential liability if Holder were found to be a licensee, nor do we.

In sum, after properly placing the summary judgment burden on Mellon and resolving all inferences from the facts in Holder’s favor, I conclude that fact issues exist as to the foreseeability of the risk of criminal conduct in the garage and Mellon’s actual knowledge of that risk. Because the Court concludes otherwise, I respectfully dissent.

*707Opinion

GEORGE, C. J.

Plaintiffs, passengers in an automobile that had been pulled over by a California Highway Patrol officer into the center median strip of a highway for a traffic violation, were injured when a pickup truck ran into their automobile from behind, while the automobile was stopped in the median strip. Plaintiffs thereafter filed this personal injury action against (1) the driver of the pickup truck, (2) the driver of the automobile in which they were riding, and (3) the California Highway Patrol (CHP) and the CHP officer who had directed their vehicle to stop in the center median, alleging that each defendant had been negligent and bore some legal responsibility for plaintiffs’ injuries.

Prior to trial, the CHP and the CHP officer—the only defendants involved in the appeal now before us (hereafter generally referred to simply as defendants)—filed a motion for summary judgment, contending that plaintiffs’ action against them should be dismissed on the ground, among others, that the CHP officer owed no legal duty of care to plaintiffs. After the parties filed declarations and counterdeclarations (including a copy of portions of the applicable CHP Officer Safety Manual), the trial court granted summary judgment in favor of defendants, based in part upon its determination that the CHP officer “had no duty to stop plaintiffs on the right shoulder as a matter of law and there is no triable issue of fact as to whether [the officer] acted with due care or whether his conduct was a legal cause of plaintiffs’ injuries.”

On appeal, the Court of Appeal reversed, concluding that the CHP officer owed plaintiffs a legal duty of reasonable care when he directed the driver of the automobile in which they were riding to stop in a particular location, and that triable issues of material fact exist as to whether the officer acted with reasonable care and whether his alleged negligence was a legal cause of plaintiffs’ injuries.

We granted review to consider the issues presented. As we shall explain, the governing precedents clearly establish that a law enforcement officer, in directing a traffic violator to stop in a particular location, has a legal duty to use reasonable care for the safety of the persons in the stopped vehicle and to exercise his or her authority in a manner that does not expose such persons to an unreasonable risk of harm; thus, the summary judgment in favor of defendants cannot be upheld on the theory that the CHP officer owed no duty of care to plaintiffs. Furthermore, although a jury properly could find from the evidence presented by defendants in support of the summary judgment motion that the CHP officer was not negligent in directing the automobile in which plaintiffs were riding to stop in the center *708median under the circumstances of this case, we agree with the Court of Appeal that, in view of the conflicting declarations and the provisions of the CHP Officer Safety Manual submitted by plaintiffs in opposition to the summary judgment motion, the issue whether the officer was or was not negligent cannot properly be resolved by a court as a matter of law and instead presents a triable issue of fact for the jury’s determination. Accordingly, we conclude that the trial court erred in granting summary judgment in favor of defendants, and that the judgment of the Court of Appeal, reversing the trial court’s ruling, should be affirmed.

I

On August 15, 1996, Richard Hedgecock, a CHP motorcycle patrol officer, was on duty in San Diego County on Highway 78, a limited access highway with three eastbound and three westbound lanes. The weather was dry, visibility was good, and traffic was moderate to fairly heavy. Shortly before 5:00 p.m., Hedgecock observed a Toyota Camry traveling westbound at an estimated speed of 85 miles per hour in the fast, or number one, lane. Hedgecock pulled his motorcycle along the right side of the Camry, sounded his siren to attract the attention of its driver, and motioned to the driver to stop in the center median area of the highway. As directed, the driver pulled the car over to the left and stopped the Camry in the center median of the highway. Hedgecock stopped 10 to 15 feet behind the Camry, close to a two-foot-high concrete barrier separating the westbound median area from traffic traveling in the eastbound direction, and turned off the motorcycle’s lights.

Hedgecock walked to the driver’s side of the Camry, which was about two feet from the concrete median barrier. Hedgecock noticed that the three young girls in the backseat of the Camry (Zean Lugtu, Zeachelle Lugtu, and Leah Cabildo) were not restrained by seat belts. The driver of the Camry, Michael Lugtu, identified himself as the uncle of the three girls, and identified the other passenger in front, Cecelio Lugtu, as the father of two of the girls. Hedgecock issued a speeding citation to Michael Lugtu and a seat belt citation to Cecelio Lugtu.

After writing the citations, Hedgecock noticed that the girl in the middle rear seat still did not have her seat belt on, and he stated he would issue another citation if she were not restrained by a seat belt. Michael Lugtu got out of the Camry, apparently to try to help retrieve the middle rear seat belt, as Hedgecock began walking back to his motorcycle. The other four occupants remained within the vehicle. At that point, the Camry had been stopped in the median area for about six to eight minutes.

*709As Hedgecock returned to his motorcycle, he observed a pickup truck, traveling westbound in the fast lane, begin drifting further and further into the center median toward Hedgecock and the Camry. As the truck approached, Hedgecock waved and jumped up and down, trying to attract the attention of the truck’s driver, James Neeb, who appeared to Hedgecock to be looking down inside the truck. Just as the truck was about to hit him, Hedgecock dove over the concrete median barrier and heard a very loud crash.

The truck did not hit Hedgecock or Michael Lugtu, but it struck the rear of the Camry while Cecelio Lugtu and the three young girls were inside. All four of the car’s occupants were seriously injured in the accident.

In August 1997, Cecelio Lugtu and the three young girls (plaintiffs) filed the present action against Hedgecock and the CHP (defendants), Neeb (the driver of the pickup truck), and Michael Lugtu (the driver of the Camry), alleging that each was negligent and that the negligence of each was a substantial cause of plaintiffs’ injuries.1

In September 1998, after several depositions had been taken, defendants filed a motion for summary judgment, asserting that (1) Hedgecock did not owe a duty of reasonable care to plaintiffs, (2) as a matter of law, the accident was not foreseeable and Hedgecock’s conduct was not a legal cause of plaintiffs’ injuries, and (3) defendants were statutorily immune from liability. Defendants maintained that Hedgecock owed no duty of reasonable care to plaintiffs, because Hedgecock’s alleged responsibility for plaintiffs’ injuries arose merely from a failure to protect plaintiffs from injury (which defendants characterized as a negligent omission or nonfeasance), and because Hedgecock assertedly did not have the requisite special relationship with plaintiffs on which negligence liability for failure to provide such protection could be based. Defendants also contended that the undisputed facts established as a matter of law that Hedgecock was not negligent and that, in any event, his conduct was not a legal cause of plaintiffs’ injuries. Finally, defendants argued that they were immune from liability under a number of statutory immunity provisions. (See Gov. Code, §§ 820.2, 821.6, 845.)

In support of their summary judgment motion, defendants submitted declarations of Hedgecock and Arnold Sidney, another CHP officer. Hedge-cock stated in his declaration that he decided to stop the Camry in the *71010-foot-wide, asphalt-surfaced center median because the distance that the Camry had to travel to the center median was considerably less than the distance to the right shoulder, and because he believed that stopping the vehicle in the center median posed a lesser hazard to him and to the Canary’s occupants than stopping the vehicle on the right shoulder, which at that location was only approximately eight feet wide.2 Hedgecock indicated that at the time he directed the Canary’s driver to pull into the center median, he was aware that there was traffic immediately behind him in the center lane and “quite a lot of traffic” in the right-hand lane. Hedgecock also declared that CHP procedures gave him discretion whether to stop a traffic violator in the median area or on the right shoulder (the declaration stated that “[i]t is basically up to the officer to select a safe place to make a traffic stop”), and that he previously had stopped vehicles in that vicinity in both the center median and on the right shoulder. Finally, Hedgecock indicated that at the time he directed the Canary to pull into the center median, he had no knowledge of prior accidents having occurred within the center median in that vicinity.

In his separate declaration, Sidney stated that he had been a CHP officer since 1969, had been trained in CHP motorcycle patrol procedures, and had been instructed that a motorcycle patrol officer has discretion to make a traffic enforcement stop in the median area, particularly if the violator’s vehicle is traveling in the fast lane. Sidney further stated that he subsequently had received specialized training and had become a certified motorcycle training officer, and that in 1991 he had trained Hedgecock in CHP motorcycle patrol procedures and had instructed Hedgecock that a traffic stop in the median area is appropriate if the violator is in the fast lane and if the officer believes a stop in the median area is safer. Sidney’s declaration also explains in some detail why, in his opinion, a stop in the median area may be particularly appropriate wheii the stop is made by a motorcycle officer rather than by an officer in a patrol car.3 Finally, Sidney stated that based upon his review of Hedgecock’s declaration, the' accident report, photographs of the accident scene and involved vehicles, and the CHP Departmental Motorcycle Manual and CHP Officer Safety Manual, in his *711opinion Hedgecock had acted reasonably and with a proper exercise of discretion in directing Michael Lugtu to stop within the center median area of Highway 78.

In response to defendants’ motion for summary judgment, plaintiffs filed a lengthy opposition. Plaintiffs initially maintained that defendants’ claim that Hedgecock owed no legal duty of care to plaintiffs rested on a mischaracterization of the basis of Hedgecock’s alleged liability, and asserted that the alleged negligent conduct of Hedgecock at issue in this case involved an affirmative act of misfeasance—directing the driver of the vehicle in which they were passengers to stop the vehicle in an assertedly dangerous location—rather than an act of omission or nonfeasance as argued by defendants. Second, plaintiffs insisted that the question whether Hedgecock had been negligent or instead had exercised due care in directing the driver of the Camry to stop in the center median could not be decided as a matter of law, but instead clearly presented a triable question of fact for the jury’s determination. In this regard, plaintiffs vigorously disputed the assertion in Hedgecock’s and Sidney’s declarations that the applicable CHP procedures gave CHP officers discretion to stop a vehicle either in the center median or on the right shoulder, maintaining that the applicable CHP Officer Safety Manual flatly contradicted that assertion by explicitly providing that “[ajfter determining that a driver is to be stopped, effective techniques should be used to ensure stopping on the right shoulder rather than in the median or in a traffic lane.” Plaintiffs additionally asserted that the question whether Hedgecock’s negligence was a legal cause of plaintiff’s injuries presented a triable issue of fact for the jury and could not be determined as a matter of law. Finally, plaintiffs maintained that the governing precedents interpreting the statutory immunity provisions relied upon by defendants established that the immunity afforded by each of those statutes did not apply to the conduct of defendants at issue in this case.

In support of their opposition to the summary judgment motion, plaintiffs submitted a declaration of Joseph Thompson (a former CHP officer and CHP accident investigation supervisor), a copy of chapter 10 of the CHP Officer Safety Manual, a copy of the accident report, and brief excerpts from the depositions of Hedgecock and Sidney.

Thompson stated in his declaration that he had been employed by the CHP from 1959 through 1982 both as a motorcycle and patrol car officer and as an accident investigator and supervisor, and in the latter capacity had been responsible for conducting more than 2,000 accident investigations. Thompson stated he was “extremely familiar” with the CHP Officer Safety Manual in effect at the time of the accident, and that the manual, and all CHP *712motorcycle and patrol car training, “mandate[s] that routine traffic enforcement stops on California freeways shall be made by directing all violators over to the right shoulder for purposes of violator and officer protection.” Thompson further stated that “[shopping a violator in the center median lane of a California freeway is not permitted by the [CHP] Officer Safety Manual as this creates a substantial risk of harm to the violator as well as the patrol officer due to the increased speed of vehicles in the inside/fast or number one lane of travel.” Thompson’s declaration further explained in this regard that “[t]he center median lane is for emergency vehicles only and users of the freeway do not expect to see a routine traffic stop being enforced in the center median lane. The sight of a traffic enforcement stop being conducted in the center median startles users of the freeway in the number one or fast lane of traffic causing them to lose control of their vehicles.”

Moreover, in contrast to the views expressed by Sidney in his declaration, Thompson’s declaration stated that the CHP manuals and training make “no distinction between motorcycle and patrol car officers in how to make a routine traffic stop from all lanes of the freeway” (original underlining), and that nothing in the applicable motorcycle manual allows for officer discretion in this regard. Finally, Thompson stated in his declaration that, based upon his review of the depositions of Hedgecock and Sidney, the accident report, the CHP Departmental Motorcycle Manual, and the CHP Officer Safety Manual (in particular, chapter 10, pertaining to patrol and enforcement on the freeway), in Thompson’s opinion “Officer Hedgecock was negligent by violating the California Highway Patrol enforcement techniques in directing Michael Lugtu to the center median lane instead of over to the right shoulder,” and that in doing so Hedgecock “substantially increased the risk of harm to the occupants in the Lugtu vehicle and to the officer.”

In addition to Thompson’s declaration, plaintiffs submitted a copy of chapter 10 of the CHP Officer Safety Manual, entitled Patrol and Enforcement on the Freeway, which states in relevant part:

“3. Enforcement Techniques.

“a. Stopping the Violator.

“(1) After determining that a driver is to be stopped, effective techniques should be used to ensure stopping on the right shoulder rather than in the median or in a traffic lane. Because of the hazards of high speed and traffic volume on modem freeways, the officer must be aware of his/her primary responsibility to control traffic approaching from the rear when attempting to stop a violator. Under these conditions, one error by a single driver can *713cause multiple traffic collisions. Special and unique methods have been developed which materially reduce the hazards involved in directing the violator from a high-speed traffic lane to a position of safety. The following procedures should be used whenever possible. fl[] . . . fl[]

“(b) The patrol vehicle should normally be offset slightly to the right and to the rear of the violator’s vehicle to permit evasive action if it becomes necessary and also to provide a protected lane for the violator’s safe movement to the right. The rear amber warning light should be used at this time to warn following traffic of the impending stop. . . .

“(2) When difficulties arise in gaining [the] violator’s attention, it may be necessary to pull abreast, preferably on the right side, in order to attract the driver’s attention. . . .

“(a) The moment the violator looks and identifies the patrol unit, the officer should apply the brakes slightly. No matter how the fast the violator’s reflexes are, the officer then has control of the situation and can slow down as necessary.

“(b) The driver should be directed by the use of the hand gesture to the right lane. During a violator’s transition to the right, traffic should be held back in adjacent lanes by the use of the rear amber light, turn signals and hand gestures. . . .

“(c) If the driver’s attention is not gained in time to stop at a desired stopping location, he/she should be permitted to proceed, if practicable, to the next safe stopping location. ... [U] ... [f]

“(3) If possible, ensure a violator does not stop in the roadway or park in the median divider. All stops on freeways should be made completely off the roadway and as inconspicuously as possible to minimize the possibility of a traffic slowdown. . . .

“(4) When a violator stops in the center divider, the officer must make a decision whether to handle the transaction there or request a move to a safer location. Factors to be considered are divider width, traffic speed, traffic density, and other surrounding circumstances. The ultimate question is ‘Are the hazards of conducting the stop in the center divider more or less than moving the violator across multiple freeway lanes?’

“(5) Avoid stopping motorists where restricted shoulders or heavy congestion exists. The stop should be delayed until a safe location is *714reached. . . .” (CHP, Officer Safety Manual (July 1991 rev.) pp. 10-3 to 10-6, italics added.)4

Defendants thereafter filed a reply to the opposition, attaching additional portions of the CHP Officer Safety Manual that defendants maintained (1) demonstrated that the manual should not be interpreted, as Thompson had suggested, as mandating that all traffic stops on a highway be made on the right shoulder rather than the center median, but rather should be interpreted to grant a CHP officer discretion in this matter, and (2) further supported their contention that Hedgecock’s conduct was reasonable and not negligent.5 Defendants also submitted additional excerpts from Sidney’s deposition, in which Sidney stated that when the CHP Officer Safety Manual uses the word “should” rather than “shall,” the manual “is leaving the officer with an option and his best judgment to do what the situation may call [for].”

*715After considering defendants’ motion, plaintiffs’ opposition, defendants’ reply, and the supporting declarations and other submitted material, the trial court granted summary judgment in favor of defendants, concluding that “Hedgecock had no duty to stop plaintiffs on the right shoulder as a matter of law and there is no triable issue of fact as to whether Hedgecock acted with due care or whether his conduct was a legal cause of plaintiffs’ injuries. In addition, even assuming a duty, lack of due care, and causation, defendants are immune from liability.”

On appeal, the Court of Appeal reversed, concluding that Hedgecock owed plaintiffs a legal duty of reasonable care when he directed the driver of the Canary to stop the vehicle in a particular location, and that, in view of the provisions of the CHP Officer Safety Manual and the conflicting declarations that were before the trial court, there was a triable issue of fact whether Hedgecock was negligent and, if so, whether that negligence was a legal cause of plaintiffs’ injuries. Finally, the Court of Appeal concluded that defendants’ claims of statutory immunity lacked merit.

Defendants sought review in this court, limiting their challenge to the negligence issue, with particular attention to the Court of Appeal’s conclusion on the question of duty.6 We granted review to address these points.

II

We begin with the issue of duty. (See generally Davidson v. City of Westminster (1982) 32 Cal.3d 197, 202-203 [185 Cal.Rptr. 252, 649 P.2d 894].)

Under the provisions of the California Tort Claims Act, “a public employee is liable for injury caused by his act or omission to the same extent as a private person,” except as otherwise specifically provided by statute. (Gov. Code, § 820, subd. (a), italics added.) In addition, the Tort Claims Act further provides that “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would . . . have given rise to a cause of action against that employee,” unless “the employee is immune from liability.” (Gov. Code, § 815.2, subds. (a), (b), italics added.) Because it is undisputed that Hedgecock was acting within the scope of his employment when he engaged in the conduct at issue in this case, the initial question of *716duty, and defendants’ potential liability for Hedgecock’s conduct, turns on ordinary and general principles of tort law.

Under general negligence principles, of course, a person ordinarily is obligated to exercise due care in his or her own actions so as not to create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor’s conduct. (Civ. Code, § 1714; see generally Rest.2d Torts, § 281; Prosser & Keeton on Torts (5th ed. 1984) § 31, p. 169; 3 Harper et al., The Law of Torts (2d ed. 1986) § 18.2, pp. 654-655.) It is well established, moreover, that one’s general duty to exercise due care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct (including the reasonably foreseeable negligent conduct) of a third person. (See, e.g., Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 240-244 [60 Cal.Rptr. 510, 430 P.2d 68]; Richardson v. Ham (1955) 44 Cal.2d 772, 777 [285 P.2d 269]; see generally Rest.2d Torts, §§ 302, 302A.7) It is this duty that plaintiffs alleged was breached by Hedgecock.

In their summary judgment motion, however, defendants asserted that Hedgecock owed no duty of care to plaintiffs because “[t]he alleged failure of defendant Hedgecock to protect plaintiffs from injury by defendant Neeb is, at most, a negligent omission, or nonfeasance,” and because there assertedly was no “special relationship” between Hedgecock and plaintiffs that would support the imposition of liability on the basis of such an omission. We agree with plaintiffs that this argument rests upon a fundamental mischaracterization of the basis of Hedgecock’s alleged responsibility for plaintiffs’ injuries.

It is true that the duty plaintiffs rely upon is said to be restricted to instances of misfeasance, not nonfeasance. As this court explained in Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49 [123 Cal.Rptr. 468, 539 P.2d 36], however, “[m]isfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention.” In this case, unlike the cases relied upon by defendants, plaintiffs’ cause of action does not rest *717upon an assertion that defendants should be held liable for failing to come to plaintiffs’ aid, but rather is based upon the claim that Hedgecock’s affirmative conduct itself, in directing Michael Lugtu to stop the Camry in the center median of the freeway, placed plaintiffs in a dangerous position and created a serious risk of harm to which they otherwise would not have been exposed. Thus, plaintiffs’ action against Hedgecock is based upon a claim of misfeasance, not nonfeasance.

Consistent with the basic tort principle recognizing that the general duty of due care includes a duty not to expose others to an unreasonable risk of injury at the hands of third parties, past California cases uniformly hold that a police officer who exercises his or her authority to direct another person to proceed to—or to stop at—a particular location, owes such a person a duty to use reasonable care in giving that direction, so as not to place the person in danger or to expose the person to an unreasonable risk of harm. Thus, for example, in Williams v. State of California (1983) 34 Cal.3d 18 [192 Cal.Rptr. 233, 664 P.2d 137], this court recognized that although law enforcement officers, like other members of the public, generally do not have a legal duty to come to the aid of a person, in carrying out routine traffic enforcement duties or investigations, a duty of care does arise when an officer engages in “an affirmative act which places the person in peril or increases the risk of harm as in McCorkle v. Los Angeles (1969) 70 Cal.2d 252 [74 Cal.Rptr. 389, 449 P.2d 453], where an officer investigating an accident directed the plaintiff to follow him into the middle of the intersection where the plaintiff was hit by another car.” (34 Cal.3d at p. 24, italics added.)

The Court of Appeal recognized this same principle in Whitton v. State of California (1979) 98 Cal.App.3d 235 [159 Cal.Rptr. 405, 17 A.L.R.4th 886]. In that case, CHP officers had made a traffic stop of the plaintiff’s automobile on the right shoulder of a highway, parking their patrol car 10 to 15 feet behind the plaintiff’s vehicle, and a drunk driver subsequently struck the patrol car, propelling it into the plaintiff while she was standing between the patrol car and her own vehicle. Although the Court of Appeal in Whitton found that sufficient evidence supported the jury’s determination that, under the circumstances of the case, the officers had acted with reasonable care and thus should not be held liable, that court explicitly recognized that the CHP officers, in making the traffic stop, had a duty “to perform their official duties in a reasonable manner.” (Id. at p. 241; see also Reed v. City of San Diego (1947) 77 Cal.App.2d 860, 866-867 [177 P.2d 21] [upholding jury verdict imposing liability upon police department where officers’ negligence in positioning their patrol car during a traffic stop resulted in an injury to the stopped motorist when a third car collided with the police vehicle].) Other *718states also have recognized that law enforcement officers, in making a traffic stop, have a legal duty to exercise due care for the safety of those whom they stop and may incur liability when their failure to exercise such care exposes a person to injury at the hands of another motorist. (See, e.g., Kaisner v. Kolb (Fla. 1989) 543 So.2d 732, 734-736; Kinsey v. Town of Kenly (1965) 263 N.C. 376 [139 S.E.2d 686, 688-690].)

Accordingly, we conclude that, under California law, a law enforcement officer has a duty to exercise reasonable care for the safety of those persons whom the officer stops, and that this duty includes the obligation not to expose such persons to an unreasonable risk of injury by third parties. The summary judgment in favor of defendants cannot be sustained on the ground that Hedgecock owed no legal duty of care to plaintiffs.

III

Although defendants argued in their summary judgment motion that a law enforcement officer in making a traffic stop on a highway owes no duty of care to the persons he or she stops, in their briefs before this court defendants have modified their position and now ask this court to adopt a rule that “the duty of a law enforcement officer who has made a traffic enforcement stop entirely off of the travel lanes of a freeway [does] not extend to liability for a traffic collision in which a third party’s vehicle subsequently strikes the car stopped by the officer.”

As this court explained in Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167, 27 A.L.R.5th 899], it is more accurate to view defendants’ present argument not as relating to the threshold question of the existence of a duty itself—defendants no longer claim that an officer owes no duty of care to passengers in a vehicle stopped by the officer—but rather as relating to the appropriate “standard of care.”8 Defendants argue in essence that we should declare, as part of the governing standard of care, that a law enforcement officer, in making a traffic stop on a highway, always satisfies the duty of reasonable care so long as the officer stops a vehicle at any location off of the travel lanes of a highway—without regard to whether the stop is made in the center median of a freeway or on the right shoulder, and apparently also without regard to the width of the median or shoulder on which the stop is made, how far off the roadway the stopped car is located, the visibility of the stopped vehicle to oncoming *719traffic at the location of the stop, or any other potentially relevant circumstance.

From a commonsense perspective, defendants’ proposal has little to recommend it. It is counterintuitive to suggest that an officer’s conduct should be considered prudent whenever the officer stops a vehicle in the center median of a highway so long as the vehicle that the officer has stopped is not actually in the travel lane of the highway, no matter how narrow the center median strip and how little room there is between the stopped vehicle and the approaching traffic. Indeed, under the defendants’ formulation, a law enforcement officer’s conduct would be deemed to satisfy the duty of reasonable care even if the center median of a highway is very narrow and the right shoulder generously wide, and even if there is no barrier to traffic traveling in the other direction, and the officer chooses the sole location that is not readily visible to oncoming traffic. Defendants fail to cite any decision in California or in any other jurisdiction—and our research has disclosed none—that defines in such a manner the standard of care applicable to a traffic stop on a highway.

Moreover, defendants are unable to point to any legislative or administrative pronouncement accepting their claim that considerations of “public policy” support the rule they propose. Defendants’ reliance upon this court’s decision in Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, is misplaced. In that case, we relied upon “the dense layer of state and federal statutes and regulations that control virtually all aspects of the marketing of [the defendant drug manufacturer’s] products” (id. at p. 548), as well as our assessment that “[d]efining the circumstances under which warnings or other information should be provided in a language other than English is a task for which legislative and administrative bodies are particularly well-suited” (id. at p. 550), in concluding that a drug manufacturer satisfies its duty to warn of adverse side effects by providing such warnings in English, as required by the applicable federal and state regulations. In the present case, by contrast, no legislative, administrative, or other official pronouncement indicates that an officer fully satisfies his or her duty of due care in making a traffic stop so long as the officer stops the vehicle off the travel lane of a freeway, regardless of the configuration of the area in which the stop is made or the ready availability of alternative, safer sites in which the stop could have been made.9

Indeed, not only is there no statute or regulation that supports defendants’ contention, but the provisions of the CHP Officer Safety Manual submitted *720by plaintiffs appear fundamentally inconsistent with defendants’ position. As indicated by the lengthy quotation set forth above, the CHP Officer Safety Manual clearly establishes at the very least a general preference for directing a cited vehicle to the right shoulder of a highway, rather than to the center median. All of the manual’s references to stops in the median appear to refer only to instances in which a motorist stops in the center median on his or her own volition, presumably without the officer’s direction to do so. And even in such instances, the officer is advised to consider directing the driver to move to a safer location. No provision in the manual establishes that the officer acts properly or with due care so long as he or she stops a vehicle entirely within a center median strip.

In considering the effect that the provisions of the CHP Officer Safety Manual should have in the present case, it is important to keep in mind the appropriate role that the provisions of such a safety manual may play in a negligence action under California law. Under Evidence Code section 669.1,10 the provisions of the CHP Officer Safety Manual may not properly be viewed as establishing the applicable standard of care, but they may be considered by the trier of fact in determining whether or not an officer was negligent in a particular case. The manual cannot be read to establish the standard of care, because there is no indication that the manual was adopted pursuant to the state (or federal) Administrative Procedure Act. Absent such adoption, Evidence Code section 669.1 forbids the use of the manual to establish the presumption of negligence that otherwise would arise under Evidence Code section 669. At the same time, Evidence Code section 669.1 specifies that this statute is not intended to affect the admissibility of such a manual into evidence, and thus it is clear that the manual may be considered *721as evidence on the question of negligence. (See, e.g., Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 809 [148 Cal.Rptr. 22, 582 P.2d 109, 7 A.L.R.4th 642].)11

Because the relevant provisions of the CHP Officer Safety Manual submitted by plaintiffs indicate, at the least, a strong preference for stopping a vehicle on the right shoulder rather than in the center median, and advise officers to consider carefully whether to require a motorist to move the vehicle from the center median even when the driver stops on the center median on his or her own volition, we cannot accept defendants’ assertion that considerations of public policy support the adoption of a standard of care under which a CHP officer never could be found to have violated the duty of care so long as he or she stops a vehicle off the travel lanes of a freeway, without regard to any other relevant factor that may affect the reasonableness of the officer’s action. Instead, as in negligence cases generally, we believe that the applicable standard of care by which the officer’s conduct must be measured in this context is simply that “of a reasonably prudent person under like circumstances.” (Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, 546-547, and cases cited.)

In arguing that considerations of public policy justify the adoption of the narrow standard of care that they propose, defendants apparently fear that the application of ordinary negligence principles in the present context will impair the ability of CHP officers to carry out their responsibilities and will result in an inordinate financial liability to the state, because juries will be too ready to second-guess police officers in the exercise of their discretion in making traffic stops. To the extent that past cases provide any guidance, this limited precedent does not support defendants’ prediction. As noted above, in Whitton v. State of California, supra, 98 Cal.App.3d 235—probably the closest California case on point—the jury returned a verdict against a plaintiff who had been injured by a drunk driver as she was stopped for a traffic violation. The jury found that the CHP officers who had stopped the plaintiff’s car (on the right shoulder of the highway) and, after detecting *722alcohol on the plaintiff’s breath, conducted a sobriety test on the plaintiff as she stood between her vehicle and the patrol car, were not negligent. As Whitton demonstrates, the various considerations that an officer is required to take into account in deciding when and where to make a traffic stop, and how to conduct an investigation after the stop, are not beyond the understanding or experience of most jurors, and there is little reason to suspect that juries in general will not grant an officer engaged in law enforcement duties appropriate leeway in assessing the reasonableness of the officer’s conduct.

In sum, we find no justification for the limitation on the ordinary standard of care that defendants propose. Of course, if the Legislature determines that the application of general common law negligence principles in this setting is undesirable or detrimental, it remains free to fashion an appropriate response, either through the creation of a statutory immunity or the promulgation of a legislatively prescribed standard of care. In the absence of such legislative action, we conclude that the ordinary negligence, standard of care should apply in this context.

IV

Defendants further contend that even if, as we have concluded above, Hedgecock’s conduct must be evaluated under the ordinary standard of reasonable care, the summary judgment in their favor should be upheld on the theory that the trial court correctly found that the undisputed facts establish, as a matter of law, that Hedgecock was not negligent under that standard. As this court recently explained in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493], “the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . There is a triable issue of material fact if . . . the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”

In support of their claim that no triable issue of fact existed on the question whether Hedgecock was negligent, defendants stress that it is undisputed that (1) the center median was wider than the right shoulder at the location where the stop in this case was made, (2) the Camry was traveling in the fast lane and thus a stop in the center median did not require the Camry to cross other lanes of traffic, whereas a stop on the right shoulder would have required the Camry to cross two lanes of traffic, and. (3) the weather and visibility were good, reducing the risk that oncoming traffic might not see a stopped vehicle in the median strip.

*723All of the circumstances upon which defendants rely clearly are relevant to the determination whether defendants were negligent and properly could persuade a jury that Hedgecock was not negligent in stopping the Canary as he did. Nonetheless, the declarations and other evidence presented by plaintiffs in opposition to the summary judgment motion constitute evidence from which a jury could come to a contrary conclusion, thus raising a triable issue of fact on the question of negligence.

First, the provisions of the CHP Officer Safety Manual constituted evidence from which a jury could find that stops in the center median, as a general matter, create a greater risk of injury than stops on the right shoulder, and that, absent unusual circumstances, an officer in the exercise of reasonable care ordinarily should stop a vehicle on the right shoulder. As discussed above, although under Evidence Code section 669.1 a jury determination that Hedgecock had violated the provisions of the CHP Officer Safety Manual would not raise a presumption of negligence, that statute does not preclude a jury from taking into account the provisions of the manual in determining whether Hedgecock was or was not negligent under the circumstances of this case.

Second, the declaration of Thompson, a former CHP officer and former accident investigator and investigation supervisor, also constitutes evidence that would support a jury finding that Hedgecock was negligent. As noted above, Thompson stated in his declaration that stops in the center median of a highway pose a greater danger than stops on the right shoulder, because oncoming vehicles are less likely to expect to see cars or motorcycles stopped in the center median and thus are more likely to be distracted by such an event. He further stated that because vehicles traveling in the left lane of a freeway generally are traveling faster than those in the right lane, a driver in the left lane is more likely to lose control of his or her vehicle (and less likely to be able to avoid a collision) in the event the distraction leads the driver to swerve away from the stopped vehicle.

Third, a jury might find that although the existence of circumstances such as bad weather or an emergency could have made it reasonable for Hedge-cock to direct the Canary to the center median, there was insufficient justification under the present circumstances for Hedgecock to subject plaintiffs to the risks inherent in such a stop—especially in view of the good weather and clear visibility prevailing at the time and location of the stop. Finally, particularly in light of the provisions of the CHP manual indicating that if a location is too dangerous the officer should delay the stop and wait for a safer location, a jury might conclude that if the width of the right *724shoulder at the particular area of the highway was not sufficient to permit the stop to be made safely on the right shoulder, the officer, in the exercise of reasonable care, should have permitted the Camry to proceed further and have stopped the vehicle at a location where the right shoulder was wider.12

In sum, in light of the conflicting evidence relating to the requirements of CHP procedure in the situation presented, and the circumstance that the evidence disclosed by the declarations and counterdeclarations could support a jury’s finding either that Hedgecock was not negligent or that he was negligent, the evidence before the trial court on the summary judgment motion clearly raised a triable issue for the jury’s determination on the question of negligence. Indeed, as we have seen, the declarations of CHP Officer Sidney and former CHP Officer Thompson—both of whom had many years of experience in traffic enforcement—were in direct conflict on the ultimate question of whether Hedgecock was or was not negligent under the circumstances of this case. On this record, we conclude that the trial court erred in finding that the undisputed evidence established, as a matter of law, that Hedgecock was not negligent.13

*725V

Finally, defendants argue that even if a triable issue of fact exists as to whether or not Hedgecock was negligent, the grant of summary judgment in their favor was nonetheless proper because even if the jury were to find that Hedgecock was negligent, the undisputed evidence established, as a matter of law, that Hedgecock’s negligence was not a legal cause of plaintiffs’ injuries. Defendants maintain in this regard that even if the jury were to find that Hedgecock breached his duty of due care and carelessly exposed plaintiffs to an unreasonable risk of harm, the conduct of the driver of the pickup truck—in diverting his eyes from the highway, drifting into the center median of the freeway, and ultimately colliding with the Camry— constitutes, as a matter of law, a superseding cause that relieves Hedgecock of responsibility for plaintiffs’ injuries.

Defendants’ contention lacks merit. It is well established that when a defendant’s negligence is based upon his or her having exposed the plaintiff to an unreasonable risk of harm from the actions of others, the occurrence of the type of conduct against which the defendant had a duty to protect the plaintiff cannot properly constitute a superseding cause that completely relieves the defendant of any responsibility for the plaintiff’s injuries. As the commentary to the Restatement Second of Torts explains: “The problem which is involved in determining whether a particular intervening force is or is not a superseding cause of the harm is in reality a problem of determining whether the intervention of the force was within the scope of the reasons imposing the duty upon the actor to refrain from negligent conduct. If the duty is designed, in part at least, to protect the other from the hazard of being harmed by the intervening force, or by the effect of the intervening force operating on the condition created by the negligent conduct, then that hazard is within the duty, and the intervening force is not a superseding cause.” (Rest.2d Torts, § 281, com. h, p. 8; see, e.g., Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 769-770 [91 Cal.Rptr. 745, 478 P.2d 465]; McEvoy v. American Pool Corp. (1948) 32 Cal.2d 295, 298-299 [195 P.2d 783].) As further explained in Soule v. General Motors (1994) 8 Cal.4th 548 [34 Cal.Rptr.2d 607, 882 P.2d 298], for an intervening act properly to be considered a superseding cause, the act must have produced “harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible.” (Soule, at p. 573, fn. 9.)

Under these principles, it is clear that the trial court could not properly find, as a matter of law, that the conduct of the driver of the pickup truck constituted a superseding cause that relieves Hedgecock of any legal responsibility for plaintiffs’ injuries. The risk of harm posed by the negligence of *726an oncoming driver is one of the foremost risks against which Hedgecock’s duty of care was intended to protect. Accordingly, even if a jury were to determine that the driver of the pickup truck was negligent and that his negligence was a substantial and even predominant cause of plaintiffs’ injuries, such a finding would not render the pickup driver’s conduct a superseding cause that totally eliminates Hedgecock’s responsibility for plaintiffs’ injuries—although such a finding certainly would provide ample justification for the jury, in applying comparative fault principles, to apportion the bulk of responsibility for the accident to the pickup driver, rather than to the CHP officer. Indeed, the latter consideration provides a further reason to discount defendants’ claim that a decision in plaintiffs’ favor is likely to subject the state to substantial liability, because in most cases of this nature the great majority of fault is likely to be attributed to the third party, and not to the officer. (See Civ. Code, § 1431.2, subd. (a) [“In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault ----”]•)

Thus, for the reasons discussed above, we cannot sustain the summary judgment that was rendered in favor of defendants on the theory that Hedgecock’s conduct, as a matter of law, was not the legal cause of plaintiffs’ injuries.

VI

The judgment of the Court of Appeal, reversing the trial court’s grant of summary judgment in favor of defendants, is affirmed.

Kennard, J., Werdegar, J., and Chin, J., concurred.

BROWN, J.

I respectfully dissent.

Like the majority, I agree that a police officer owes a general duty of care to the passengers in a vehicle stopped by that officer. I, however, believe the majority errs in formulating the appropriate standard of care. Under the undisputed facts, Officer Hedgecock’s legal duty to plaintiffs did not include a duty to stop plaintiffs somewhere other than the center median of the freeway. Thus, Officer Hedgecock did not breach his legal duty to plaintiffs as a matter of law. Accordingly, I would reverse the judgment of the Court of Appeal and affirm the trial court’s grant of summary judgment for defendants.

*727Like the existence of a legal duty, the scope of that duty is a question of law for the court. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477 (Merrill).) In discussing the scope of Officer Hedgecock’s duty, the majority characterizes the issue as whether an officer “always satisfies” the duty of care by stopping a traffic violator “at any location off of the travel lanes of a highway.” (Maj. opn., ante, at p. 718.) Relying exclusively on Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539 [25 Cal.Rptr.2d 97, 863 P.2d 167, 27 A.L.R.5th 899] (Ramirez), the majority answers “no” because no legislative or administrative pronouncements support such a rule (maj. opn., ante, at pp. 718-721), and because the California Highway Patrol Officer Safety Manual (Safety Manual) indicates “a strong preference for stopping a vehicle on the right shoulder rather than in the center median” (maj. opn., ante, at p. 721). The majority, however, engages in faulty analysis, and, in doing so, misstates the issue before the court. The issue is not whether an officer satisfies his duty of care in every case by stopping a traffic violator off the lanes of a highway. Rather, the issue is whether an officer satisfies his duty of care to the passengers of a car under the uncontested circumstances of this case when he stops their car in the median area. The answer should be “yes.”

As an initial matter, the majority mistakenly assumes that the scope of a defendant’s duty cannot depend on the particular facts of a case. “In most cases, courts have fixed no standard of care for tort liability more precise than that of a reasonably prudent person under like circumstances.” (Ramirez, supra, 6 Cal.4th at p. 546.) “[Hjowever ... in particular situations a more specific standard may be established by judicial decision, statute or ordinance.” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 824 [59 Cal.Rptr.2d 756, 927 P.2d 1260].) Thus, “ ‘each case must be considered on its own facts to determine’ ” the scope of the legal duty owed by a defendant to a class of plaintiffs “ ‘to refrain from subjecting them to’ ” a given risk. (Dillon v. Legg (1968) 68 Cal.2d 728, 742 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316] (Dillon), italics added, quoting Hergenrether v. East (1964) 61 Cal.2d 440, 445 [39 Cal.Rptr. 4, 393 P.2d 164].) Indeed, where the facts are undisputed, we have regularly affirmed summary judgment for a defendant even though the defendant owed a general duty of care to the plaintiff, because that general duty did not require the defendant to act any differently under the facts of the case. (See, e.g., Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1189-1199 [91 Cal.Rptr.2d 35, 989 P.2d 121] (Sharon P.); Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 477-483 [63 Cal.Rptr.2d 291, 936 P.2d 70] (Parsons); Thompson v. County of Alameda (1980) 27 Cal.3d 741, 753-758 [167 Cal.Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701] (Thompson); cf. Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 616 [76 Cal.Rptr.2d 479, 957 P.2d 1313] [affirming summary judgment because there was “no triable issue of *728fact concerning the scope of defendant’s duty under Rest.2d Torts, § 324A].)

The majority’s second mistake lies in its exclusive focus on legislative or administrative pronouncements in formulating the standard of care. When determining the scope of a defendant’s legal duty under the particular facts of a case, courts do not always rely on legislative or administrative pronouncements, but weigh all relevant public policy considerations. (See Merrill, supra, 26 Cal.4th at p. 477.) As part of the weighing process, “ ‘foreseeability of risk [is] of . . . primary importance. . . .’” (Dillon, supra, 68 Cal.2d at p. 739, italics added, quoting Grafton v. Mollica (1965) 231 Cal.App.2d 860, 865 [42 Cal.Rptr. 306].) Foreseeability for purposes of the duty analysis, however, is different from foreseeability “in the fact-specific sense in which we allow juries to consider [the] question.” (Parsons, supra, 15 Cal.4th at p. 476.) “[A] court’s task—in determining ‘duty’—is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6 [224 Cal.Rptr. 664, 715 P.2d 624].)

After determining the foreseeability of harm, courts typically balance' foreseeability against other relevant policy considerations to determine the scope of a defendant’s duty “within the factual context of a specific case.” (Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495, 506 [238 Cal.Rptr. 436] (Lopez); see also Parsons, supra, 15 Cal.4th at p. 476.) Relevant policy considerations include “the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) “When public agencies are involved,” courts may also consider “ ‘the extent of [the agency’s] powers, the role imposed upon it by law and the limitations imposed upon it by budget.’ ” (Thompson, supra, 27 Cal.3d at p. 750, quoting Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847].) This lengthy list of policy considerations, however, is neither exhaustive (Lopez, at p. 506), nor mandatory (see, e.g., Sharon P., supra, 21 Cal.4th at pp. 1191-1199 [analyzing legal duty without considering all the Rowland factors]; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678-680 [25 Cal.Rptr.2d 137, 863 P.2d 207] (Ann M.) [same]).

*729Thus, where the relevant facts are undisputed, a court may define a more specific standard of care than the reasonably prudent person standard if the public policy considerations warrant it. In such cases, the court may be able to decide the case on summary judgment because the definition of a more specific standard of care often resolves an interrelated issue; whether a defendant breached his legal duty of care. “ ‘[T]he question whether an act or omission will be considered a breach of duty . . . necessarily depends upon the scope of the duty imposed. . . .’ ” (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1211 [69 Cal.Rptr.2d 370], quoting Wattenberger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751 [33 Cal.Rptr.2d 732].) If a defendant’s conduct satisfies the standard of care defined by the court as a matter of law under the undisputed facts of the case, then the defendant, by definition, has not breached any legal duty. Indeed, some of our early decisions rely on foreseeability of harm and other policy considerations to find no breach of a legal duty as a matter of law. (See, e.g., La Manna v. Stewart (1975) 13 Cal.3d 413, 428-429 [118 Cal.Rptr. 761, 530 P.2d 1073] [a pedestrian had no duty to continuously look “in the direction of potential oncoming traffic” under the facts and could not breach her legal duty because the imposition of such a duty would have placed her in even greater danger]; Schmitt v. Henderson (1969) 1 Cal.3d 460, 465-466 [82 Cal.Rptr. 502, 462 P.2d 30] [a pedestrian had no duty “to be alert to danger approaching him from behind” under the facts and could not breach his legal duty because there was no foreseeability of harm]; see also Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1077-1078 [91 Cal.Rptr. 319] [balancing “the likelihood of harm, and the gravity of the harm if it happens . . . against the burden of precaution which would be effective to avoid the harm” under the facts of the case may lead to a finding that the defendant did not breach his duty of care as a matter of law (italics omitted)].)

A survey of our more recent negligence cases further illustrates these principles at work. In Thompson, the County of Alameda released a juvenile offender into a neighborhood without warning police, other parents in the neighborhood or the juvenile’s mother. The released offender later murdered the plaintiffs’ son. (Thompson, supra, 27 Cal.3d at p. 746.) Although we recognized that the county had a duty “to exercise reasonable care to protect all of its citizens” (id. at p. 753), we concluded that this duty did not include a duty to warn under the particular facts of the case (id. at pp. 756-758). We reached this conclusion “based in part on policy considerations and in part upon an analysis of ‘foreseeability’ within the context of this case.” (Id. at p. 753, italics added.) We further acknowledged that the county may have had a duty to warn under different facts, i.e., if there had been “a prior threat to a specific identifiable victim.” (Id. at p. 758.) Because the county lacked *730such a duty under the facts of this case and therefore could not, as a matter of law, breach its general duty of care, we dismissed the plaintiffs’ negligence claim. (See ibid.)

More recently, we affirmed summary judgment for a defendant after defining a more specific standard of care under the particular facts of that case based on public policy considerations. In Parsons, the plaintiff claimed that the defendant’s negligent operation of a garbage truck caused her to fall off her horse. (Parsons, supra, 15 Cal.4th at p. 463.) Although we held that the defendant owed certain common law duties to the plaintiff, we concluded that these duties did not include a duty to guard against frightening horses under the circumstances presented. (Id. at p. 477.) Thus, the defendant, as a matter of law, did not breach its duty of care to the plaintiff. (Id. at p. 485.) We reached this conclusion by balancing the foreseeability of harm against relevant public policy considerations, including “the social utility of the defendant’s conduct, and the consequences to the community of imposing a duty to guard against frightening [horses].” (Id. at p. 476.) We, however, acknowledged that the defendant could have been negligent for failing to guard against frightening horses under different factual circumstances. (See id. at pp. 477-478.)

We have also applied these same principles in affirming summary judgment for defendants in the premises liability context. In Sharon P., an assailant attacked the plaintiff in an underground parking garage. The plaintiff sued the owner of the premises and the operator of the parking garage, alleging, among other things, that the defendants negligently failed to provide adequate security. (Sharon P., supra, 21 Cal.4th at p. 1185.) Although we acknowledged that the defendants had a duty to protect the plaintiff “ ‘against foreseeable criminal acts of third parties’ ” (id. at p. 1189, quoting Ann. M., supra, 6 Cal.4th at p. 674), we affirmed summary judgment for the defendants (Sharon P., at p. 1199). To reach this result, we balanced the foreseeability of the attack against the efficacy of additional security measures and the resulting burden on the defendants. (See id. at pp. 1189-1199.) Based on this balancing, we concluded that the defendants had no duty to provide additional security measures under the undisputed facts. (Ibid.) Thus, the defendants, as a matter of law, did not breach their general duty of care to the plaintiff. (See id. at p. 1199.) We, however, implicitly recognized that a legal duty to provide additional security measures might exist under different facts, i.e., if there had been “prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location.” (Ibid.; see also Ann M., supra, 6 Cal.4th at pp. 679-680 [the defendant had no duty to provide security guards absent notice of prior similar incidents].)

*731Thus, our case law establishes that public policy considerations may justify the definition of a more specific standard of care than the reasonably prudent person standard in certain cases where the relevant facts are undisputed. In such cases, a court may properly grant summary judgment for a defendant if the more specific standard establishes that the defendant could not have breached his legal duty as a matter of law. This is such a case.

I begin by considering the foreseeability of harm in the context of this case. Foreseeability must be analyzed “in terms of the totality of the circumstances facing the police officer at the scene.” (Dutton v. City of Pacifica (1995) 35 Cal.App.4th 1171, 1175 [41 Cal.Rptr.2d 816] (Dutton).) In the traffic enforcement context, any assessment of foreseeability must account for the inherent risk created by a routine stop because “neither police nor their employer [may] incur any liability by virtue of’ the “original police decision to stop ... a suspected wrongdoer.” (Sparks v. City of Compton (1976) 64 Cal.App.3d 592, 596 [134 Cal.Rptr. 684] (Sparks).) Any traffic enforcement stop “carries a risk of harm that a” negligent third party driver “will crash into the stopped vehicles.” (Whitton v. State of California (1979) 98 Cal.App.3d 235, 242 [159 Cal.Rptr. 405, 17 A.L.R.4th 886].) Thus, the foreseeability of harm created by an officer’s execution of a stop must be measured in relation to the foreseeability of harm inherent in a routine stop. Otherwise, officers may be held liable for their decision to stop a suspected traffic violator and become insurers of the motorists they stop. (Ibid. [holding officers liable for the risks inherent in any traffic enforcement stop would result in “a liability-extending doctrine of ‘risk in the air’ ”].)

These principles establish that the foreseeability of harm created by Officer Hedgecock’s decision to stop plaintiffs in the median area was minimal to nonexistent. The relevant facts are undisputed. The weather was dry and visibility was good. The car occupied by plaintiffs was parked well within the median area. The median area was wider than the right shoulder, and the right shoulder was adjacent to a downward slope. Contrary to the general pronouncements of plaintiffs’ expert, no admissible evidence in the record even suggests that a car parked in this particular median area was in fact less visible than a car parked on the right shoulder or that the driver of the truck that hit plaintiffs was in fact distracted by the presence of a vehicle in the median area. Although plaintiffs’ expert observed that traffic in the lane closest to the median generally travels faster than traffic in the lane closest to the right shoulder, the record establishes that traffic in the number one lane was travelling only minimally faster than traffic in the other two lanes. Moreover, traffic in all lanes was moderately heavy. Finally, Officer Hedgecock had stopped traffic violators in the median area on numerous occasions without incident, and there was no evidence that accidents were *732more likely in the median area than on the right shoulder. Under these facts, the risk of harm to plaintiffs was no different from the risk of harm inherent in any traffic stop. Indeed, stopping plaintiffs on the right shoulder as suggested by the Safety Manual arguably would have increased the likelihood of harm to plaintiffs because they would have had to cross two busy lanes of traffic to reach the right shoulder. Holding that Officer Hedgecock might have breached his legal duty to plaintiffs under these circumstances creates the type of “ ‘Monday-morning quarterbacking’ ” that negligence law should avoid. (See Dutton v. City of Pacifica, supra, 35 Cal.App.4th at p. 1175, quoting Williams v. State of California (1983) 34 Cal.3d 18, 30 [192 Cal.Rptr. 233, 664 P.2d 137] (conc, and dis. opn. of Mosk, J.).)

The countervailing policy considerations also strongly support such a conclusion. By enacting numerous statutes relating to traffic safety (see, e.g., Veh. Code, §§ 21000-23336), and by making police officers statutorily immune for their decision to stop a suspected traffic violator (Gov. Code, § 820.2; Sparks, supra, 64 Cal.App.3d at p. 596), the Legislature has established a strong public policy in favor of enforcing the rules of the road. Indeed, rigorous enforcement of our traffic laws serves a vital public function by making “automobile driving less dangerous.” (Breithaupt v. Abram (1957) 352 U.S. 432, 439 [77 S.Ct. 408, 412, 1 L.Ed.2d 448].) Where, as here, the location of the stop was no more dangerous than any other available location, holding that an officer could breach his legal duty by stopping a traffic violator in one of those locations would create a “Catch-22” situation. No matter where the officer stopped the violator, he would arguably create a risk of harm and open himself and his employer to liability. Indeed, the majority carefully avoids any suggestion that Officer Hedgecock could have escaped liability by stopping plaintiffs on the right shoulder and offers no alternative location for the stop. If officers may incur liability no matter where they stop a traffic violator, they have less incentive to make stops, resulting in the reduced enforcement of our traffic laws. Rather than impede such police work, I would conclude that Officer Hedgecock, as a matter of law, satisfied his duty of care to plaintiffs under the circumstances presented here. (See Parsons, supra, 15 Cal.4th at p. 476 [holding that the social utility of defendant’s conduct overrode the foreseeability of harm].)

The Safety Manual does not dictate a contrary conclusion. Although the manual states a preference for stopping traffic violators on the right shoulder, it allows for officer discretion. For example, the manual’s consistent use of the word “should”—rather than “shall”—implies that officers have discretion when deciding where to conduct a traffic enforcement stop. The manual also states that an officer, “if possible,” should “ensure a violator does not . . . park in the median divider.” Finally, the manual specifically *733addresses the situation where “a violator stops in the center divider” and states that the officer must decide whether the hazards of conducting the stop in the center median are greater than the hazards of moving the violator across multiple freeway lanes. Although this provision ostensibly covers situations where the violator stops in the median on his own volition, it implies that officers must do the same calculation when deciding where to stop a violator travelling in the lane farthest from the right shoulder. Because the manual does not conflict with my conclusions above, the admissibility of the manual as evidence of the standard of care (see Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 588 [86 Cal.Rptr. 465, 468 P.2d 825]), does not preclude us from affirming summary judgment in defendants’ favor on the uncontroverted facts.

Indeed, the majority’s contrary conclusion will likely cause more problems than it will solve. By holding that discretionary provisions in a manual preclude summary judgment under the facts of this case, the majority creates a huge incentive for government agencies to discard or sanitize their manuals in an effort to minimize the possibility of open-ended tort liability. Such a result will likely have deleterious effects by depriving government employees of useful guides for doing their jobs.

The majority’s reliance on the cited provisions of the Safety Manual may also have the perverse effect of increasing the number of accidents. (See Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 273 [80 Cal.Rptr.2d 196] [declining to impose a duty that would “likely result in more deaths or injuries”].) By ignoring the undisputed facts and reversing summary judgment solely based on the manual’s suggestion to stop traffic violators on the right shoulder, the majority, in effect, creates a legal presumption for traffic stops on the right shoulder. As a result, officers will likely conduct all traffic stops on the right shoulder even though they are more familiar with the roads they patrol than this court. Where, as here, the right shoulder arguably creates a greater risk of accident than the median area, this judicially imposed limitation on officer discretion will likely increase the risk of harm. Consequently, the majority will likely cause more accidents than it prevents because its failure to provide officers with any meaningful guidance does nothing to reduce the possibility of such accidents.

The facts in this case are tragic, and I, like my colleagues, have great sympathy for plaintiffs, who suffered severe injuries through no apparent fault of their own. Nonetheless, I do not believe that Officer Hedgecock or the State of California should be held responsible for these injuries. Holding that a jury could find that Officer Hedgecock breached his legal duty under the facts of this case will not reduce the likelihood of such accidents in the *734future. Instead, such a holding will likely hinder enforcement of our traffic laws and may even increase the number of accidents. While I might conclude differently under another set of facts, I believe that Officer Hedgecock had no duty to stop plaintiffs in a different location under the undisputed facts presented here. Accordingly, he did not, as a matter of law, breach his legal duty to plaintiffs.

Baxter, J., concurred.

Opinion

COMPTON, Acting P. J.

Plaintiffs Manuel and Rosa Zepeda appeal from a judgment of dismissal entered after the trial court sustained a demurrer to their complaint. We affirm.

The record reveals that plaintiffs commenced an action against defendants City of Los Angeles (City) and Robert Rosito1 for the wrongful death of their son Jerman. According to the allegations of the complaint, Rosito shot Jerman in the neck on February 28, 1988. Even though they were in no apparent danger, a paramedic team employed by the City purportedly refused to render medical attention or otherwise assist Jerman until the police arrived at the scene. The complaint further averred that Jerman eventually died because the paramedics breached “a duty to come to the aid of the decedent or at least make inquiry as to the status of the decedent.”

The City subsequently filed a demurrer which the trial court sustained with leave to amend. When plaintiffs elected to stand on their complaint, the court again sustained the demurrer and then dismissed the action.

Even assuming, as we must, that all of the material facts alleged in plaintiffs’ complaint are true (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1076-1077 [195 Cal.Rptr. 576]), we find they have failed to state a cause of action against the City for wrongful death.

The sine qua non of any negligence action is, of course, the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member. (Rodriguez v. Bethlehem (1974) 12 Cal.3d 382, 399 [115 Cal.Rptr. 765, 525 P.2d 669]; Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]; Gregori *235 an v. National Convenience Stores, Inc. (1985) 174 Cal.App.3d 944, 948 [220 Cal.Rptr. 302].) As used here, the term “duty” is simply “an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” (Prosser & Keeton on Torts (5th ed. 1984) § 53, p. 358; see also Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1075 [235 Cal.Rptr. 844].) Whether or not a duty exists is primarily a question of law. (Sullivan at p. 1075; Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619 [146 Cal.Rptr. 535, 17 A.L.R.4th 1118].)

As a general rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative steps to assist or protect another unless there is some special relationship between them which gives rise to a duty to act. (Williams v. State of California (1983) 34 Cal.3d 18, 23 [192 Cal.Rptr. 233, 664 P.2d 137]; Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203 [185 Cal.Rptr. 252, 649 P.2d 894]; see also Rest.2d Torts, § 323.) Other than cases involving landowners and their invitees, those cases finding the existence of a special relationship most frequently involve some act or omission on the part of the defendant that either created a risk or increased an existing risk to a known person. (See Tarasojf v. Regents of University of California (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166]; Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352]; Mann v. State of California (1977) 70 Cal.App.3d 773 [139 Cal.Rptr. 82].)

The rules concerning a private citizen’s duty—or lack thereof—to come to the aid of another also are applicable to law enforcement and emergency rescue personnel. (See Williams v. State of California, supra, 34 Cal.3d at p. 24.) Our Supreme Court has made it clear that “ ‘[a] person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people, but neither does he assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large.’ ” (Id. at p. 24, fn. 3, italics omitted.) Therefore, recovery has been denied for injuries caused by the failure to investigate or respond to requests for assistance where the police had not induced reliance on a promise, express or implied, that they would provide protection. (See, e.g., Sullivan v. City of Sacramento, supra, 190 Cal.App.3d 1070 [police radio dispatcher berated rape victim and failed to provide assistance]; Rose v. County of Plumas (1984) 152 Cal.App.3d 999 [199 Cal.Rptr. 842] [police officers failed to provide emergency care]; Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6 [120 Cal.Rptr. 5] [police failed to respond to a plea *236for help made 45 minutes before the homicide]; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588 [114 Cal.Rptr. 332] [police radio dispatcher delayed 10 minutes after alert before broadcasting burglary in progress]; McCarthy v. Frost (1973) 33 Cal.App.3d 872 [109 Cal.Rptr. 470] [complaint alleged decedent was driving on a state highway at a particular time and place, highway patrol negligently failed to find him, and death was caused by failure to receive timely medical aid; held state and patrolman not liable].)

Applying these principles to the instant case, we think it clear that the City’s paramedics had no general duty to render aid to plaintiffs’ decedent. Based upon the allegations of the complaint, the emergency personnel involved did not create the peril to decedent, they did not voluntarily assume a special duty to assist him, they made no promise or statement to induce reliance, nor did they increase the risk to him that otherwise would have existed. Said another way, the paramedics could not negligently perform an act they had not undertaken to perform, and to that extent plaintiffs’ pleading is defective on its face.

Plaintiffs argue, however, that a special relationship existed because Health and Safety Code section 1799.107 imposes a mandatory duty upon emergency rescue personnel to render assistance whenever summoned. Plaintiffs’ emphasis on the “mandatory” nature of the duty is an obvious attempt to plead around the provisions of Government Code section 820.22 and into Government Code section 815.6.3 The latter statute applies to public entities the familiar rule of tort law that violation of a legislatively prescribed standard of care creates a rebuttable presumption of negligence. (Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 292 [217 Cal.Rptr. 450].)

Health and Safety Code section 1799.107, subdivision (b), provides in relevant part: “[N]either a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in *237a grossly negligent manner.” The clear import of this language is to limit, not expand, a public entity’s liability exposure for providing emergency services to the public. In enacting the statute, the Legislature declared: “The Legislature finds and declares that a threat to the public health and safety exists whenever there is a need for emergency services and that public entities and emergency rescue personnel should be encouraged to provide emergency services. To that end, a qualified immunity from liability shall be provided for public entities and emergency rescue personnel providing emergency services.” (Health & Saf. Code, § 1799.107, subd. (a); italics added.) Viewed in light of this expression of legislative intent, we think it obvious that the statute does not impose a general duty upon emergency personnel to provide assistance whenever and wherever summoned. Subdivision (b) merely defines the level of negligence that will result in the imposition of liability once assistance is rendered. (See also Health & Saf. Code, § 1799.106, providing that “a firefighter, police officer or other law enforcement officer . . . who renders emergency medical services at the scene of an emergency shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.” (Italics added.)) Had the Legislature desired to impose upon emergency personnel the mandatory duty to render aid, it could easily have said so. It did not, and we will not impose such a requirement here.

Nothing in Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318 [268 Cal.Rptr. 309] compels a contrary conclusion. In that case, the victim, who had been involved in an altercation with another suspect and was later arrested and handcuffed by the police, died from sickle cell shock after city paramedics summoned to the scene conducted only a cursory examination. In determining whether the defendants were liable, the Court of Appeal found that Health and Safety Code section 1799.106 established a duty for emergency personnel to provide “medical services in a manner which was not grossly negligent or performed in bad faith.” (219 Cal.App.3d at p. 345.) The court then applied that standard in finding that the paramedics were grossly negligent in their treatment of the victim.

Contrary to the argument advanced by plaintiffs, Wright does not hold that emergency personnel must respond to all calls for assistance from the general public or risk liability in tort. Indeed, such a holding would have had no application to the underlying facts. Unlike the instant case, the paramedics in Wright actually examined the victim and thus were held to the standard of care set forth in Health and Safety Code section 1799.106. Here, of course, the City’s paramedics provided no form of assistance and were not obligated to do so either by statute or common law rule.

*238Based upon the foregoing, we can only conclude that, as a matter of law, plaintiffs’ action is without merit and that the trial court properly sustained the City’s demurrer.

The judgment is affirmed.

Gates, J., and Fukuto, J., concurred.

A petition for a rehearing was denied August 30, 1990.

STEELE, Chief Justice

for the Majority:

Patricia Price appeals from a Superior Court order denying her Motion to Amend her household asbestos exposure complaint as futile. Because the allegations in Price’s amended complaint amount to a claim against DuPont for nonfeasance, and the complaint does not allege any “special relationship” between Price and DuPont, her proposed amendments, if allowed, would be futile. Therefore, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Bobby Price worked as a maintenance technician for E.I. du Pont de Nemours & Co. at its Chestnut Run facility from 1957 until 1991. During his employment, Mr. Price worked with and around products containing asbestos. Allegedly, Mr. Price transported asbestos fibers home on his clothing, vehicle, and skin. Patricia Price, his wife, alleges that years of living with her husband, and handling and washing his work clothes, exposed her to the fibers. Mrs. Price now suffers from bilateral interstitial fibrosis and bilateral pleural thickening of the lungs. These maladies, it is claimed, present directly from her exposure to the asbestos dust and fibers her husband brought home from work.

On June 8, 2009, Mrs. Price1 filed a complaint against DuPont and several other parties. The Household Exposure section of her original complaint relevantly alleges:

11. Plaintiff PATRICIA PRICE suffered household exposure as a result of a release of toxic asbestos fiber by de*164fendant E.I. DuPont De Nemours & Co., Inc.

12. Plaintiff PATRICIA PRICE suffered household exposure in the course of living with her husband. From April 1957 through 1991 her husband worked with and around asbestos and asbestos containing products at the DuPont Chestnut Run plant. The asbestos fibers were then released into the family home on his clothes and his person where PATRICIA PRICE was a resident. As a result, Plaintiff PATRICIA PRICE was repeatedly exposed to, inhaled, ingested, and otherwise absorbed asbestos fibers released from the DuPont Chestnut Run plant, where her husband was employed.

13. In addition to exposure that occurred as a result of asbestos fibers brought home and being deposited in the house from the clothes of her husband, Plaintiff PATRICIA PRICE was exposed in the course of handling and washing her husband’s asbestos fiber containing dusty work clothes. As a result, Plaintiff PATRICIA PRICE was repeatedly exposed to, inhaled, ingested and otherwise absorbed fibers released from the DuPont Chestnut Run plant where her husband was employed.

14. Plaintiff PATRICIA PRICE’S husband was a maintenance technician at the DuPont Chestnut Run plant and worked with and around asbestos and asbestos containing products.

15. Plaintiff Bobby Price unsafely worked, with and around asbestos and asbestos containing products at E.I. DuPont De Nemours Co & Inc. This covered his work clothes and person which he brought into the household, causing exposure to Plaintiff PATRICIA PRICE. Plaintiff PATRICIA PRICE laundered BOBBY PRICE’S clothing which also caused asbestos exposure to Plaintiff PATRICIA PRICE.

16.Plaintiffs [sic] allege that Defendant E.I. DuPont De Nemours Co. & Inc., committed active, affirmative misconduct by wrongfully releasing asbestos from its plant and exposing Plaintiff PATRICIA PRICE, a reasonably foreseeable victim to it’s [sic] toxic asbestos fibers.

On July 9, 2009, in light of this Court’s decision in Riedel v. ICI Americas Inc., 2 Price filed a Motion to Amend her complaint. Specifically, Price sought to change the text of paragraphs 11, 12, 15, and 16 to allege misfeasance, as follows:

11. Plaintiff PATRICIA PRICE was exposed within her home as [a] result of the release by E.I. DuPont & Company of toxic asbestos fibers within the Chestnut Run Facility and outside the Chestnut Run Facility. This release was done negligently, willfully, wantonly, and intentionally as a result of the DuPont Company’s understanding of the dangers of asbestos when released within and without their [sic] facility. These releases were the direct result of positive actions and knowing actions of the DuPont Company.

12. PLAINTIFF PATRICIA PRICE suffered home exposure in the course of living with her husband from April 1957 through the year 1991. Her husband worked at the DuPont Chestnut Run Facility and by being on the facility and being off the facility around its perimeter was exposed to asbestos fibers released from the materials ordered by the DuPont Company and under whose direction the materials [were] either installed or removed. These actions by the DuPont Company released asbestos *165fibers. The asbestos fibers that were within the facility settled on all equipment, walkways, vehicles and persons who were within the facility during these years and escaped beyond the borders of said facility due to the natural pollution of the surrounding areas by water, wind and similar means of transportation. As a result of DuPont’s direct negligent, willful and/or wanton or intentional conduct in the manner and mode of its ordered use of asbestos materials, asbestos fibers were released into the air. The fibers settled on PLAINTIFF BOBBY PRICE, on his private vehicle and onto the vehicles of his co-workers and both within the facility and beyond the borders of said facility. The asbestos fibers were transported by PLAINTIFF BOBBY PRICE and his vehicle and clothing to its final destination, his home. As a result of this transport, the asbestos was deposited within the home both from his vehicle and from his clothes and distributed through a laundry facility and home by PLAINTIFF BOBBY PRICE to his wife, PLATINTIFF PATRICIA PRICE. PLAINTIFF BOBBY PRICE did not understand that these fibers were on his vehicle and clothing and would cause PLAINTIFF PATRICIA PRICE to be repeatedly exposed to the asbestos fibers in her own home. Nor that PLAINTIFF PATRICIA PRICE would inhale, ingest and absorb said asbestos fibers. These fibers emanated from the DuPont Chestnut Run Facility only as a result of the intentional, negligent and/or willful and wanton method that the DuPont Company required its employees and/or employees of its contractors to handle the materials releasing the fibers into the air both within the facility’s and the outside of the facility borders. Defendant DuPont knew or should have known that the times that said asbestos containing products were being utilized within its own plant, by its own employees and/or others, that they were friable and prone to release asbestos fibers within the air and contaminate the facility and the areas surrounding the facility. DuPont knew or should have known that the' asbestos fibers would be transported by any vehicle or by the air beyond the facility and, thus, causing [sic] a pollution of the Plaintiff’s home resulting in the disease complained of by PLAINTIFF PATRICIA PRICE.

15. PLAINTIFF BOBBY PRICE, as a direct result of the DuPont Company’s directives and instructions, unsafely worked with asbestos products or around asbestos products which the DuPont Company, knew or should have known, would be deposited on his work clothes at the E.I. DuPont Nemours Facility and in the streets and areas surrounding said facility without ordering a containment of the polluting asbestos. Thus the asbestos escaped from the facility and was carried beyond the plant to PLAINTIFFS home. DuPont knew or should have known persons within PLAINTIFF BOBBY PRICES home would be exposed and contaminated by the asbestos fibers and, at clear risk to contract the diseases caused by asbestos. It was foreseeable that its employees’ families including the employee’s wife and children would handle the clothing and/or be within the vehicle which would have been contaminated with asbestos both within the facility and from asbestos fibers transported. This intentional, negligent, willful and/or wanton acts [sic] that were transported by air, water or other means to areas around DuPont’s facility.

*16616. Plaintiffs allege that E.I. DuPont de Nemours’ conduct was affirmative, active misconduct because it was only through the direct orders and desires of the DuPont Company that the fibers were released within its plant and not contained within its plant and escaped beyond the plant to pollute not only the surrounding area beyond the plant and everything within the facility, but be [sic] foreseeably transported to the homes and businesses of Plaintiff and the invitees of the DuPont Company.

On July 21, 2009, DuPont filed an opposition to Price’s Motion to Amend on the basis that the proposed amendments, even if allowed, would fail to state a claim for misfeasance and, therefore, be legally futile. DuPont contended that as a matter of substance the amended complaint alleges nonfeasance — not misfeasance. In order to recover for nonfeasance, a plaintiff must specifically allege a “special relationship” between herself and the defendant. Having not alleged any “special relationship” in this case, DuPont argues, Price’s amendments are futile because they fail to state a claim as a matter of law.

The parties argued their positions on the Motion to Amend on August 20, 2009 before a Special Master. On August 25, the Special Master issued a written ruling, finding the motion to be futile. Price filed an Exception to the Special Master’s report on September 1, 2009. On November 20, 2009, a Superior Court judge affirmed and embodied the Special Master’s judgment in a Memorandum Opinion and Order. On January 7, 2010, a Superior Court order certified the November 20 Memorandum Opinion and Order for interlocutory appeal. On January 8, 2010, Price appealed from that judgment.

II. STANDARD OF REVIEW

A motion for leave to amend a complaint is futile where the amended complaint would be subject to dismissal under Rule 12(b)(6) for failure to state a claim.3 We review the grant of a Rule 12(b)(6) motion to dismiss de novo to “determine whether the trial judge erred as a matter of law in formulating or applying legal precepts.”4 In that context, we view the complaint in the light most favorable to the non-moving party, accepting as true all well pleaded allegations and drawing reasonable inferences that logically flow from them.5 We decline, however, to accept conclusory allegations unsupported by specific facts or to draw unreasonable inferences in favor of the non-moving party.6

III. ANALYSIS

To prevail on a negligence claim, a plaintiff must prove that: a defendant owed her a duty of care, the respondent breached that duty, and the breach proximately caused an injury.7 Whether a duty exists is a question of law for this Court.8 To determine whether one party owed another a duty of care, we have often looked to the Restatement (Second) of Torts for *167guidance.9 According to the Restatement, negligent conduct involves either (1) “an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another,” (commonly described as misfeasance), or (2) “a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do” (commonly described as nonfeasance).10

In the case of misfeasance, the party who “does an affirmative act” owes a general duty to others “to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the [affirmative] act.” 11 But, in the case of nonfeasance, the party who “merely omits to act” owes no general duty to others unless “there is a special relation between the actor and the other which gives rise to the duty.”12 Therefore, in a case involving misfeasance, the defendant’s duty is automatic, whereas in a case involving nonfeasance, the defendant’s duty arises only if there is a legally significant “special relationship” between the parties.

The underlying facts of this case are essentially the same as those underlying Riedel v. ICI Americas Inc., which we decided several years ago. In that case, Mr. Riedel worked at a facility where his employer, ICI, used asbestos in a variety of settings. ICI never supplied uniforms, locker rooms, or laundry facilities to employees. Mr. Riedel wore his work clothes home, and Mrs. Riedel regularly washed the work clothes which, she alleged, “often appeared to be covered with an unknown dusty material.”13 After decades of washing Mr. Riedel’s work clothes, Mrs. Riedel developed asbestosis.14 She filed a complaint against ICI alleging negligence. ICI moved for summary judgment, and the trial judge granted summary judgment to ICI on the basis that Mrs. Riedel had claimed nonfeasance by ICI and that she had failed to prove any “special relationship” between herself and ICI.15

Mrs. Riedel appealed from the Superior Court’s judgment, which we ultimately affirmed. In our opinion, we explained how, at trial, Mrs. Riedel presented only a theory of nonfeasance — not misfeasance.16 *168Moreover, as we explained, on appeal, Mrs. Riedel presented a theory of misfeasance by attempting to recharacterize her claim without alleging any new facts. 17

The legal issue presented in Riedel was whether ICI committed misfeasance affecting Mrs. Riedel. As a technical procedural matter, we did not decide the substantive issue directly, but rather affirmed the judgment pursuant to Supreme Court Rule 8 because Mrs. Riedel attempted to present arguments on appeal that she had never presented to the trial judge.18 In so doing, we acknowledged that she was attempting to present the same facts and call them misfeasance, but we declined to decide whether that characterization was indeed possible. Despite declining to decide that issue, however, we clearly articulated that the underlying facts did support a claim for nonfeasance and that her Complaint alleged only nonfeasance.19 For example, in the opinion, we wrote:

At trial, Mrs. Riedel characterized ICI’s alleged negligence as a failure either to prevent Mr. Riedel from taking asbestos home or to warn the Riedels of the dangers associated with Mr. Riedel wearing his work clothes home from the workplace. That is, to the trial judge Mrs. Riedel presented a theory of non-feasance.20

To reiterate, although, in Riedel, we did not decide whether the facts underlying Mrs. Riedel’s claim could support a misfeasance claim in addition to a nonfeasance claim, we did explain unequivocally that the facts underlying Mrs. Riedel’s claim constituted nonfeasance.21

In this case, the issue and the underlying facts are identical to those presented in Riedel. The legal issue here is whether DuPont committed misfeasance affecting Mrs. Price. The conduct Mrs. Price complains of here is indistinguishable from the conduct about which Mrs. Riedel complained. It constitutes nonfeasance, and because nonfeasance and misfeasance describe substantively different conduct, non-feasance cannot constitute misfeasance. Although Price’s desired amendment attempts to recast DuPont’s conduct as affirmative misfeasance, legal characterizations cannot change the nature of the underlying conduct.

*169Here, Mrs. Price’s allegations, stripped of all reformatory recharacterization, are that: (1) Mr. Price, an employee of DuPont, worked with and around products containing asbestos for 34 years, (2) asbestos fibers settled on his skin, clothing, and vehicle, (3) DuPont did not provide locker rooms, uniforms, or warnings to the Prices regarding the dangers of asbestos, (4) DuPont did not prevent Mr. Price from transporting the asbestos fibers home on his skin, clothing, and vehicle, and (5) Mrs. Price, because she lived with Mr. Price and washed his clothes, developed several diseases from her exposure to the asbestos he brought home from work. These allegations generate a reasonable inference that DuPont wrongfully (negligently) failed either to prevent Mr. Price from taking asbestos home or to warn the Prices of the dangers associated with Mr. Price wearing his work clothes home. That, according to our Riedel opinion, is pure nonfeasance— nothing more.22

Although Price recasts her amended complaint in an effort to allege misfeasance, the amendment is predicated on exactly the same underlying facts earlier claimed to be nonfeasance. Dupont’s failures to prevent Mr. Price from taking asbestos fibers home or to warn the Prices about the dangers of asbestos do not rise to the level of affirmative misconduct required to allege a claim of misfeasance. No amount of semantics can turn nonfea-sance into misfeasance or vice versa.23

Having alleged only nonfeasance, to recover against DuPont, Price must allege that a “special relationship” existed between her and DuPont in order for DuPont to owe her a duty of care.24 The relationship between Mrs. Price and DuPont does not fit any of the Restatement’s recognized “special relationships” giving rise to a duty to aid or protect.25 In Riedel, we determined that Mrs. Riedel had no “special relationship” with ICI even though she claimed that her status as the spouse of a long term ICI employee, ICI’s provision of health benefits to her, and ICI’s publication of a brochure with home safety advice for employees’ families, were sufficient bases on which to find a “special relationship.”26

Similarly, Mrs. Price has not alleged any “special relationship” in her original com*170plaint or proposed amended complaint, nor has she pleaded any facts that inferentially give rise to a “special relationship.” Before us, Price argues that she had a “special relationship” with DuPont because her husband worked for DuPont for over thirty years, DuPont provided health insurance to her as Mr. Price’s spouse, and DuPont sponsored company picnics and participated in programs promoting a family friendly workplace. These arguments are no different than from those Mrs. Rie-del argued. Indeed, Mrs. Price stands in relation to DuPont almost squarely as Mrs. Riedel stood in relation to ICI. Because Mrs. Price and DuPont did not share a “special relationship,” DuPont owed Price no legal duty.

IV. CONCLUSION

DuPont’s failure to prevent Mr. Price from transporting asbestos fibers home on his clothing and vehicle and failure to warn the Prices about the dangers of asbestos constitute nonfeasance. Attempts to re-characterize that underlying conduct as misfeasance cannot change the nature of the conduct, which is what determines the nature of the duty (if any). In cases of nonfeasance, no duty of care exists between the parties unless a “special relationship” between them gives rise to one. Because Mrs. Price and DuPont shared no “special relationship,” DuPont owed Mrs. Price no duty. Therefore, the trial judge correctly denied Price’s Motion to Amend her complaint on grounds of futility. The judgment of the Superior Court is affirmed.

BERGER, Justice,

dissenting, with KUHN, Chief Judge, joining:

The majority begins with a brief statement of the difference between misfea-sanee and nonfeasance. Then, it demonstrates that the facts alleged in this case are the same as the facts alleged in Riedel. Finally, because Riedel characterized her claim as one for nonfeasance, the majority concludes that Price’s factually identical claim is one for nonfeasance. The problem with the majority’s opinion is that Riedel never considered whether the allegations stated a claim for nonfeasance or misfeasance. Without any “reformatory rechar-acterization” by the parties or the Court, the facts alleged by Price and Riedel constitute misfeasance. Accordingly, Price should be allowed to pursue her claim.

Riedel Did Not Analyze Misfeasance vs. Nonfeasance

The Riedel Court never decided whether Riedel’s claim was properly characterized as nonfeasance. Riedel had proceeded on a theory of nonfeasance in the trial court. Consistent with that theory, she alleged, for example, that ICI failed to warn about the danger of taking asbestos home on one’s clothing. Riedel attempted to re-characterize her claim on appeal, arguing that it was a claim of misfeasance. This Court rejected that effort, not because the facts would not support a claim of misfeasance, but because Riedel never raised the issue in the trial court:

Because Mrs. Riedel presented a theory of negligence grounded in nonfea-sance to the trial judge and did not fairly present a claim of misfeasance, she is precluded from arguing on appeal that the trial judge erred by analyzing ICI’s summary judgment motion in terms of nonfeasance.27

Considering the claim to be one of nonfea-sance, this Court addressed only the “al-*171tentative argument that [Riedel] and ICI shared a legally significant relationship.”28

The majority transforms Riedel’s adherence and citation to “the well settled rule which precludes a party from attacking a judgment on a theory which was not advanced in the court below,”29 into a decision on the very issue Riedel did not consider — whether a so-called “take home” asbestos claim is properly characterized as a claim of misfeasance or nonfeasance.

The Factual Allegations State a Claim of Misfeasance

Misfeasance is “an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another.”30 Nonfeasance is “a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.”31 To decide whether a claim should be analyzed as misfeasance or nonfeasance, the Court must focus on the “the negligent character of the actor’s conduct” by determining whether the defendant is one “who does an affirmative act” or “one who merely omits to act.”32 The treatise, Prosser & Keeton on the Law of Torts, explains, “by ‘misfeasance’ the defendant has created a new risk of harm to the plaintiff, while by ‘nonfeasance’ he has at least made his situation no worse, and has merely failed to benefit him by interfering in his affairs.” 33

A classic example of conduct properly analyzed as nonfeasance arises when a passerby sees someone drowning but does nothing to aid the victim.34 Absent a special relationship, the law generally would not impose a duty on the passerby because he did not create a new risk of harm to the swimmer.35 Instead, the swimmer fell “into peril through no conduct of the actor.” 36 The passerby merely failed to act; he made the swimmer’s situation no worse.

DuPont’s conduct is properly analyzed as misfeasance because, unlike the passerby, DuPont performed an “affirmative act” that “created a new risk of harm.” DuPont’s affirmative act was the release of asbestos in the workplace. The majority appears to agree that DuPont’s conduct, in relation to an employee exposed to asbestos at the work site, must be analyzed as misfeasance. One could not argue that the employee came into peril through no conduct of DuPont, or that DuPont “made [the employee’s] situation no worse.”37 Rather, DuPont created the risk of harm by releasing asbestos.

The majority is emphatic that, “legal characterizations cannot change the nature of the underlying conduct.” Thus, the majority would have to agree that, as to Mr. Price, DuPont’s misfeasance is not transformed into nonfeasance by focusing, for example, on DuPont’s failure to provide Mr. Price a breathing mask. Regardless of the remedial steps Dupont might have *172taken, the fact remains that Dupont’s release of asbestos into the workplace caused harm to Mr. Price.

The same analysis should apply to Mrs. Price’s claim. DuPont’s conduct has not changed. The company still “created” the risk of harm by releasing the asbestos. No one could contend that Mrs. Price came “into peril through no conduct of’ DuPont. There is a difference, however, between Mr. Price’s exposure at the workplace and Mrs. Price’s exposure at home. Dupont’s release of asbestos in the workplace harmed Mr. Price directly, without any act by another. Dupont harmed Mrs. Price only because Mr. Price unknowingly brought the asbestos home with him. But that difference has no bearing on whether Dupont acted or failed to act. Rather, it bears on the separate question of whether it was foreseeable that Dupont’s conduct would harm Mrs. Price.38

Other jurisdictions that have addressed whether “take home” asbestos claims constitute misfeasance or nonfeasance have found them to constitute misfeasance. In Rochon v. Saberhagen Holdings, Inc., the Washington Court of Appeals looked to the Restatement (Second) and held that conduct essentially identical to Dupont’s had the character of “affirmative acts” and thus must be analyzed as misfeasance, not nonfeasance: “Here, it is Kimberly-Clark’s own affirmative acts — operating its own factory in an unsafe manner — that allegedly caused Mrs. Rochon’s illness, not either a failure to act or the act of a third.”39 The Tennessee Supreme Court reached the same conclusion in Satterfield v. Breeding Insulation Co.40

There is a split of authority in other jurisdictions, but those decisions do not address the misfeasance/nonfeasance issue. Rather, they discuss foreseeability and policy. For example, in Olivo v. Owens-Ill., Inc., the New Jersey Supreme Court held that, “to the extent Exxon Mobil owed a duty to workers on its premises for the foreseeable risk of exposure to friable asbestos and asbestos dust, similarly, Exxon Mobil owed a duty to spouses handling the workers’ unprotected work clothing based on the foreseeable risk of exposure from asbestos borne home on contaminated clothing.”41 Those courts that reject similar claims do so based on public policy considerations and/or distinguishable facts.42 It does not appear that any court has rejected a “take home” asbestos claim by characterizing it as nonfeasance.

The majority focuses on DuPont’s admitted omissions — its failure to warn, and, generally, its failure to prevent Mr. Price from taking home asbestos — in concluding that DuPont’s conduct is “pure nonfea-*173sanee and nothing more.” But, the fact that Dupont’s conduct included omissions does not necessarily equate to nonfea-sance. The Restatement warns against such analysis by explaining that the Court should focus on the character of Dupont’s conduct.43 That is, the Court must determine whether DuPont is one “who does an affirmative act” or “one who merely omits to act”44 and, similarly, whether Dupont’s conduct created the peril.45 As explained above, regardless of anything Dupont may have failed to do, we know, for present purposes, that it released asbestos into the workplace and that the asbestos caused harm to Mrs. Price. Dupont created the peril as to both Mr. and Mrs. Price. Neither would be suffering asbestos-related disease if not for Dupont’s wrongful act.

In sum, this is not a matter of semantics. It is about applying the proper test to determine whether the conduct is misfeasance or nonfeasance, regardless of how the conduct is characterized. The analytical framework provided in the Restatement requires a finding of misfeasance.46

To Prevail on a Misfeasance Claim the Harm must be Foreseeable

Misfeasance is “an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another.”47 One “who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act.”48 Thus, even when a defendant is one “who does an affirmative act” instead of “one who merely omits to act,” a duty is not imposed on the defendant unless, in summary, the defendant should have reasonably recognized that his affirmative act would harm another.

Consistent with the Restatement, Delaware tort law uses foreseeability to determine whether one person owes a duty to another.49 Thus, whether the law will impose a duty on DuPont will turn on whether the harm to Mrs. Price was foreseeable — whether DuPont should have recognized that its release of asbestos created an “unreasonable risk of [invading]” Mrs. Price’s interests.50 Mrs. Price’s proposed amended complaint alleges that: (1) Mr. Price worked at DuPont; (2) DuPont knew or should have known asbestos was dangerous to human health; (3) DuPont knew or should have known asbestos had a tendency to release fibers that would be transported to its employees’ homes; (4) DuPont exposed Mr. Price to asbestos despite that knowledge; and (5) it thereby knowingly and wrongfully exposed Mrs. Price to asbestos, which made her ill. Assuming those allegations to be true, the injury to Mrs. Price was foreseeable.

Based on the foregoing, the trial court’s decision should be reversed.