Spencer, Ch. J. delivered the opinion of the Court

The counsel for the plaintiff in error supposes, that the injury committed by his client was involuntary, and that done by the crowd was voluntary, and that, therefore, there was *382no union of intent; and that, upon the same principle which would render Guille answerable for the acts of the crowd, in treading down and destroying the vegetables and flowers of S., he would be responsible for a battery, or a murder committed on the owner of the premises.

The intent with which an act is done, is by no means the test of the liability of a party to an action of trespass. If the act cause the immediate injury, whether it was intentional, or unintentional, trespass is the proper action to redress the wrong. It was so decided, upon a review of all the cases, in Percival v. Hickey. (18 Johns. Rep. 257.) Where an immediate act is done by the co-operation, or the joint act of several persons, they are all trespassers, and may be sued jointly or severally; and any one of them is liable for the injury done by all. To render one man liable in trespass for the acts of others, it must appear, either that they acted in concert, or that the act of the individual sought to be charged, ordinarily and naturally, produced the acts of the others. The case of Scott v. Shepard, (2 Black. Rep. 892.) is a strong instance of the responsibility of an individual who was the first, though not the immediate, agent in producing an injury. Shepard threw a lighted squib, composed of gunpowder, into a market house, where a large concourse of people were assembled; it fell on the standing of Y., and to prevent injury, it was thrown off his standing, across the market, when it fell on another standing; from thence, to save the goods of the owner, it was thrown to another part of the market house, and in so throwing it, it struck the plaintiff in the face, and, bursting, put out one of his eyes. It was decided, by the opinions of three Judges against one, that Shepard was answerable in an action of trespass, and assault and battery. De Grey, Ch. J. held, that throwing the squib was an unlawful act, and that whatever mischief followed, the person throwing it was the author of the mischief. All that was done subsequent to the original throwing, was a continuation of the first force and first act. Any innocent person removing the danger from himself was justifiable; the blame lights upon the first thrower; the new direction and new force, flow out of the first force. He laid it down as a principle, *383that every one who does an unlawful act, is considered as the doer of all that follows. A person breaking a horse in Lincolns-Inn-Fields, hurt a man and it was held, that trespass would lie. In Leame v. Bray, (3 East Rep. 595.) Lord Ellenborough said, if I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue, I am answerable in trespass; and if one (he says) put an animal or carriage in motion, which causes an immediate injury to another, he is the actor, the causa causans.

I will not say that ascending in a balloon is an unlawful act, for it is not so; but, it is certain, that the Aeronaut has no control over its motion horizontally; he is at the sport of the winds, and is to descend when and how he can; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff below, at a short distance from the place where he ascended. Now, if his descent, under such circumstances, would, ordinarily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for. Whether the crowd heard him call for help, or not, is immaterial; he had put himself in a situation to invite help, and they rushed forward, impelled, perhaps, by the double motive of rendering aid, and gratifying a curiosity which he had excited. Can it be doubted, that if the plaintiff in error had beckoned to the crowd to come to his assistance, that he would be liable for their trespass in entering the enclosure? I think not. In that case, they would have been co-tresspassers, and we must consider the situation in which he placed himself, voluntarily and designedly, as equivalent to a direct request to the crowd to follow him. In the present case, he did call for help, and may have been heard by the crowd; he is, therefore, undoubtedly, liable for all the injury sustained.

Judgment affirmed.

Thomas P. Farley, J.

This is a motion for summary judgment in an action against the owner of an airplane which crashed, causing injury to persons and property on the ground.

The affidavits presented reveal the following: On November 16,1963, a C-45 Beechcraft airplane crashed shortly after taking off from Zahn’s Airport in Amityville, New York. The plane landed on the lawn of property owned by the plaintiff, Stanley Kata, located in North Lindenhurst, which is about one-half mile from the airport. The pilot and two occupants of the plane were killed on impact and the log maintained by the crew was lost in the burning wreckage. As a result of the crash, personal injury was sustained by the plaintiffs, Stanley Kata, his wife and children, and the family of a relation who was visiting the Katas at the time. In addition, the Kata house and two parked automobiles were damaged.

Defendant, Civil Air Patrol, Inc., admits ownership of the airplane as well as that the flight was made in the course of its business by authorized personnel.

Under section 251 of the General Business Law, enacted in 1959, an owner of aircraft is liable for death or injury to person or property resulting from the use or operation of the aircraft with the permission of the owner “ in any case where the person using or operating the aircraft * * * would be liable ’ \ *290The purpose of this statute is to make the owner of an airplane liable for its operation just as the owner of a motor vehicle is similarly held liable under section 388 of the Vehicle and Traffic Law (formerly section 59). Section 251, however, differs from the Vehicle and Traffic Law in that it does not attempt to resolve the question of whether the owner’s liability is absolute or is based on negligence or other fault. That issue was expressly left open for determination by a court or by future legislation (1959 Report of N. Y. Law Rev. Comm. N. Y. Legis. Doc., 1959, No. 65 (J), p 23 et seq. see, also, 1958 Report of N. Y. Law. Rev. Comm.; N. Y. Legis. Doc., 1958, No. 65(1), p. 659 et seq.).

The plaintiffs in this case argue that injury to persons or property on the ground caused by an airplane falling to the earth constitutes a trespass for which damages may be assessed without regard to fault. This argument finds support in Rochester Gas & Elec. Corp. v. Dunlop (148 Misc. 849) decided in 1933, where absolute liability was imposed for damage caused to an electric transmission tower by an airplane making a forced landing. The theory upon which liability was predicated was that there was an intentional rather than accidental trespass. The Dunlop case was followed by two decisions rendered in the Federal courts sitting in New York (Margosian v. United States Airlines (127 F. Supp. 464); Hahn v. United States Airlines (127 F. Supp. 950), but has been recently rejected by the Supreme Court of New York in Wood v. United Air Lines (32 Misc 2d 955, affd. 16 A D 2d 659). The New York Court of Appeals has not considered the question as yet.

Preliminarily, it should be noted that some jurisdictions impose strict liability for ground damage caused by airplanes by statutory provision. (See Prosser, Torts [2d ed.], § 61, p. 346.) The Restatement of Torts of the American Law Institute which originally recommended strict liability on the theory that aviation was an ultrahazardous activity has since modified its position to restrict the imposition of absolute liability to situations where the nature of the flight itself presents a hazard as in the case of testing experimental aircraft (Restatement, Torts, 2d, vol. 1,1965, § 165). Professor Prosser points out that the question whether there should be strict liability or liability based on negligence has not been conclusively determined by any significant trend of decisions reached in this country (Prosser, § 61, p. 344).

In Wood v. United Air Lines {supra), plaintiffs moved for summary judgment in an action to recover for personal injuries and property damage sustained in their apartment as a result of a midair collision between two airliners. The motion was *291denied and the decision affirmed by the Appellate Division (16 A D 2d 659). Although the facts in the Wood and Dunlop cases differ somewhat, the court at Special Term, in Wood, after an analysis of the authorities, specifically rejected the claim that absolute liability may be imposed on the trespass theory. The rationale applied in arriving at this conclusion is, in the opinion of the court, sound.

Technological advances and development, and the experiences of the last two decades have dissipated the universal early fears that flying was an ultrahazardous occupation. The application of the trespass theory advanced in the Dunlop case appears to be based to some extent on a recognition of such earlier fear. The opinion, for example, reads (pp. 851-852): “ The correctness of that statement [that airplanes fall from causes over which the pilot has no control] we believe cannot be questioned, at least in the present state of aircraft development. When, therefore, a man takes over another man’s land a machine which he knows is liable to crash upon and do injury to that land and the structures upon it, can it be said that he is an accidental trespasser within the meaning of those decisions which have exempted the trespasser from liability? * * # If * * * common experience requires the opposite conclusion, namely, that no matter how perfectly constructed or how carefully managed an aeroplane may be, it may still fall, then the man who takes it over another’s land and kills his cow or knocks off his chimney, has committed an inexcusable trespass ”. The quotation indicates that the court found an intentional, as distinguished from an accidental, trespass based on a constructive intent imputed to the pilot to land wherever the plane may fall because of the lack of control he possessed over his flight. The decision bears a marked similarity to the holding made in 1822 in Guille v. Swan (19 Johns. 381). A balloonist in that case was found liable in trespass for damage caused to plaintiff’s property by a crowd that collected when he landed under circumstances disclosing that he called for their assistance. The court finding the areonaut had no control over the balloon’s motion horizontally, stated (p. 383): “ he is at the sport of winds and is to descend when and how he can; his reaching the earth is a matter of hazard ’ ’. Aviation, however, has progressed far beyond the stage where the control of flight is left to chance. The pilot of today is in a far different situation than the balloonist who, in 1822, was found to have no control over his motion or the aviator who, in 1933, was presumed to know that he was liable to crash.

*292Trespass provides a remedy for intentional harm to person or property and the act done must be such as will result in injury with substantial certainty (Phillips v. Sun Oil Company, 307 N. Y. 328). A constructive intent to land in an uncontrollable flight pattern or at the whim of the elements cannot today be realistically imputed from the mere act of flying.

The second question is whether plaintiffs are entitled to summary relief based on the doctrine of res ipsa loquitur. To rebut the inference of negligence, the defendant has referred to the examination before trial of the defendant which tended to show that all occupants of the airplane were capable and experienced pilots and that the plane had been carefully serviced and tested as a regular business policy prior to the accident. Such exculpatory evidence is consistent with the exercise of reasonable care in the maintenance of the aircraft, but does not explain away negligence in its operation due to pilot or navigator error. However, the inference of negligence in operation of the aircraft which arises from the application of the doctrine of res ipsa is not compelled (George Foltis, Inc. v. City of New York, 287 N. Y. 108, 119), and a jury need not find it even though the defendant introduces no evidence at all (Prosser, Torts [2d ed.], 1955, § 43, p. 212). The defendant is under no burden to refute the plaintiff’s prima facie case (Davis v. Goldsmith, 19 A D 2d 514), and its failure to explain does not necessarily indicate negligence on its part (cf. Salomone v. Yellow Taxi Corp., 242 N. Y. 251, 259). Furthermore, proof that an accident occurred is not evidence that it was caused by the defendant’s negligence (cf. George v. City of New York, 22 A D 2d 70, 71, affd. 17 N Y 2d 561), so that the question of whether the inference of negligence will prevail presents an issue of fact unless the prima facie proof is so convincing that the inference of negligence is inescapable (Gerard v. Inglese, 11 A D 2d 381, 382-383). In this case, the only evidence before the court is that an accident occurred. Under such circumstances, the possibility exists that the happening of the accident might be inferred to have resulted from negligent operation of the aircraft or from unavoidable mishap. The court, as a matter of law, may not draw one inference in preference to the other.

In Rehm v. United States (183 F. Supp. 157) plaintiffs brought an action to recover for injuries sustained when a plane struck their automobile while it was proceeding on Southern State Parkway in this county. In that case, the Federal District Court (Zavatt, J.) denied a motion for summary judgment where the plaintiff invoked the doctrine of res ipsa loquitur, holding that even assuming the applicability of that doctrine *293the mere establishment of a prima facie case is not enough to permit Motion Term to ‘ ‘ usurp the power of the trial judge by drawing now one of the two permissible inferences ’ ’. There is little or no difference in the facts in the Behm case and the instant case. In both cases more than one inference can be drawn therefrom, on one of which (negligence) liability can be predicated and the other (unavoidable accident) it cannot. Under such circumstances, the issues must be presented to the trier of the facts and cannot be summarily disposed of on motion (Nickleski v. Aeronaves de Mexico, S. A., 18 A D 2d 709). The motion is denied.

Hale, J.

Seventeen-year-old Carol J. House died in the flames of a gasoline explosion when her car encountered a pool of thousands of gallons of spilled gasoline. She was driving home from her after-school job in the early evening of November 22, 1967, along Capitol Lake Drive in Olympia; it was dark but dry; her car’s headlamps were burning. There was a slight impact with some object, a muffled explosion, and then searing flames from gasoline pouring out of an overturned trailer tank engulfed her car. The result of the explosion is clear, but the real causes of what happened will remain something of an eternal mystery.

Aaron L. Kuhlman had been a truck driver for nearly 11 years after he completed the 10th grade in high school and after he had worked at other jobs for a few years. He had been driving for Pacific Intermountain Express for about 4 months, usually the night shift out of the Texaco bulk plant in Tumwater. That evening of November 22nd, he was scheduled to drive a gasoline truck and trailer unit, fully *450loaded with gasoline, from Tumwater to Port Angeles. Before leaving the Texaco plant, he inspected the trailer, checking the lights, hitch, air hoses and tires. Finding nothing wrong, he then set out, driving the fully loaded truck tank and trailer tank, stopping briefly at the Trail’s End Cafe for a cup of coffee. It was just a few minutes after 6 p.m., and dark, but the roads were dry when he started the drive to deliver his cargo—3,800 gallons of gasoline in the truck tank and 4,800 gallons of gasoline in the trailer tank. With all vehicle and trailer running lights on, he drove the truck and trailer onto Interstate Highway 5, proceeded north on that freeway at about 50 miles per hour, he said, and took the offramp about 1 mile later to enter Highway 101 at the Capitol Lake interchange. Running downgrade on the offramp, he felt a jerk, looked into his left-hand mirror and then his right-hand mirror to see that the trailer lights were not in place. The trailer was still moving but leaning over hard, he observed, onto its right side. The trailer then came loose. Realizing that the tank trailer had disengaged from his tank truck, he stopped the truck without skidding its tires. He got out and ran back to see that the tank trailer had crashed through a chain-link highway fence and had come to rest upside down on Capitol Lake Drive below. He heard a sound, he said, “like somebody kicking an empty fifty-gallon drum and that is when the fire started.” The fire spread, he thought, about 100 feet down the road.

The trailer was owned by defendant Pacific Intermountain Express. It had traveled about 329,000 miles prior to November 22, 1967, and had been driven by Mr. Kuhlman without incident down the particular underpass above Capitol Lake Drive about 50 times. When the trailer landed upside down on Capitol Lake Drive, its lights were out, and it was unilluminated when Carol House’s car in one way or another ignited the spilled gasoline.

Carol House was burned to death in the flames. There was no evidence of impact on the vehicle she had driven, *451Kuhlman said, except that the left front headlight was broken.

Why the tank trailer disengaged and catapulted off the freeway down through a chain-link fence to land upside down on Capitol Lake Drive below remains a mystery. What caused it to separate from the truck towing it, despite many theories offered in explanation, is still an enigma. Various theories as to the facts and cause were advanced in the trial. Plaintiff sought to prove both negligence on the part of the driver and owner of the vehicle and to bring the proven circumstances within the res ipsa loquitur doctrine. Defendants sought to obviate all inferences of negligence and the circumstances leading to the application of res ipsa loquitur by showing due care in inspection, maintenance and operation. Plaintiff argued negligence per se and requested a directed verdict on liability. On appeal, plaintiff relied in part on RCW 46.44.070 and RCW 46.61.655,1 relating to the drawbar connecting trailer to truck, and provisions prohibiting a load from dropping, shifting, leaking or escaping from the vehicle.

The jury apparently found that defendants had met and overcome the charges of negligence. Defendants presented proof that both the truck, manufactured by Peterbilt, a division of Pacific Car and Foundry Company, and the tank and trailer, built by Fruehauf Company, had been constructed by experienced companies, and that the fifth wheel, connecting the two units and built by Silver Eagle *452Company, was the type of connecting unit used by 95 percent of the truck-trailer units. Defendants presented evidence that a most careful inspection would1 not have revealed the defects or fatigue in the metal connections between truck and trailer; that the trailer would not collapse unless both main springs failed; there was evidence that, when fully loaded, the tank could not touch the wheels of the tank trailer without breaking the springs because the maximum flexion of the springs was less than 1 inch. Defendants presented evidence that the drawbar was secure and firmly attached; that the tanks were built of aluminum to prevent sparks; and that, when fully loaded with 4,800 gallons of cargo, there would be 2 or 3 inches of space between the cargo and top of the tank; that two safety cables connected the two units; that the truck and trailer were regularly serviced and repaired, and records of this preserved and put in evidence; that the unit had been subject to Interstate Commerce Commission spot checks and conformed to ICC standards; and that, at the time of the accident, the unit had traveled less than one-third of the average service life of that kind of unit. There was evidence obtained at the site of the fire that both of the mainsprings above the tank trailer’s front wheels bad broken as a result of stress, not fatigue—from a kind of stress that could not be predicted by inspection—and finally that there was no negligence on the driver’s part.

Defendants also presented some evidence of contributory negligence on the basis that Carol House, driving on a 35-mile-per-hour road, passed another vehicle at about 45 miles per hour and although she slacked speed somewhat before the explosion, she was traveling at the time of the impact in excess of the 35-mile-per-hour limit. The trial court submitted both contributory negligence and negligence to the jury, declared the maximum speed limit on Capitol Lake Drive to be 35 miles per hour, and told the jury that, although violation of a positive statute' is negligence as a matter of law, it would not engender liability unless the violation proximately contributed to the injury. *453From a judgment entered upon a verdict for defendants, plaintiff appealed to the Court of Appeals which affirmed. 3 Wn. App. 231, 473 P.2d 445 (1970). We granted review (78 Wn.2d 991 (1970)), and reverse.

In the Court of Appeals, the principal claim of error was directed to the trial court’s refusal to give an instruction on res ipsa loquitur, and we think that claim of error well taken. Our reasons for ruling that an instruction on res ipsa loquitur should have been given and that an inference of negligence could have been drawn from the event are found, we believe, in our statements on the subject: ZeBarth v. Swedish Hosp. Medical Center, 81 Wn.2d 12, 499 P.2d 1 (1972); Miles v. St. Regis Paper Co., 77 Wn.2d 828, 467 P.2d 307 (1970); Douglas v. Bussabarger, 73 Wn.2d 476, 438 P.2d 829 (1968); Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973 (1967). We think, therefore, that plaintiff was entitled to an instruction permitting the jury to infer negligence from the occurrence.

But there exists here an even more impelling basis for liability in this case than its derivation by allowable inference of fact under the res ipsa loquitur doctrine, and that is the proposition of strict liability arising as a matter of law from all of the circumstances of the event.

Strict liability is not a novel concept; it is at least as old as Fletcher v. Rylands, L.R. 1 Ex. 265, 278 (1866), aff'd, House of Lords, 3 H.L. 330 (1868). In that famous case, where water impounded in a reservoir on defendant’s property escaped and damaged neighboring coal mines, the landowner who had impounded the water was held liable without proof of fault or negligence. Acknowledging a distinction between the natural and nonnatural use of land, and holding the maintenance of a reservoir to be a nonnatural use, the Court of Exchequer Chamber imposed a rule of strict liability on the landowner. The ratio decidendi included adoption of what is now called strict liability, and at page 278 announced, we think, principles which should be applied in the instant case:

*454[T]he person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

All of the justices in Fletcher v. Rylands, supra, did not draw a distinction between the natural and nonnatural use of land, but such a distinction would, we think, be irrelevant to the transportation of gasoline. The basic principles supporting the Fletcher doctrine, we think, control the transportation of gasoline as freight along the public highways the same as it does the impounding of waters and for largely the same reasons. See Prosser, Torts § 78 (4th ed. 1971).

In many respects, hauling gasoline as freight is no more unusual, but more dangerous, than collecting water. When gasoline is carried as cargo—as distinguished from fuel for the carrier vehicle—it takes on uniquely hazardous characteristics, as does water impounded in large quantities. Dangerous in itself, gasoline develops even greater potential for harm when carried as freight—extraordinary dangers deriving from sheer quantity, bulk and weight, which enormously multiply its hazardous properties. And the very hazards inhering from the size of the load, its bulk or quantity and its movement along the highways presents another reason for application of the Fletcher v. Rylands, supra, rule not present in the impounding of large quantities of water—the likely destruction of cogent evidence from which negligence or want of it may be proved or disproved. It is quite probable that the most important ingredients of proof will be lost in a gasoline explosion and fire. Gasoline is always dangerous whether kept in large or small quantities because of its volatility, inflammability and explosiveness. But when several thousand gallons of it are allowed to spill across a public highway—that is, if, while in transit as freight, it is not kept impounded—the hazards to third persons are so great as to be almost beyond calculation. As a consequence of its escape from impoundment *455and subsequent explosion and ignition, the evidence in a very high percentage of instances will be destroyed, and the reasons for and causes contributing to its escape will quite likely be lost in the searing flames and explosions.

That this is a sound case for the imposition of a rule of strict liability finds strong support in Professor Cornelius J. Peck’s analysis in Negligence and Liability Without Fault in Tort Law, 46 Wash. L. Rev. 225 (1971). Pointing out that strict liability was imposed at common law prior to Fletcher v. Rylands, supra, that study shows the application of a rule of strict liability in a number of instances, i.e., for harm done by trespassing animals; on a bona fide purchaser of stolen goods to their true owner; on a bailee for the misdelivery of bailed property regardless of his good faith or negligence; and on innkeepers and hotels at common law. But there are other examples of strict liability: The Supreme Court of Minnesota, for example, imposed liability without fault for damage to a dock inflicted by a ship moored there during a storm. Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).

The rule of strict liability rests not only upon the ultimate idea of rectifying a wrong and putting the burden where it should belong as a matter of abstract justice, that is, upon the one of the two innocent parties whose acts instigated or made the harm possible, but it also rests on problems of proof:

One of these common features is that the person harmed would encounter a difficult problem of proof if some other standard of liability were applied. For example, the disasters caused by those who engage in abnormally dangerous or extra-hazardous activities frequently destroy all evidence of what in fact occurred, other than that the activity was being carried on. Certainly this is true with explosions of dynamite, large quantities of gasoline, or other explosives. It frequently is the case with falling aircraft. Tracing the course followed by gases or other poisons used by exterminators may be difficult if not impossible. The explosion of an atomic reactor may leave little evidence of the circumstances which caused it. Moreover, application of such a standard of liability to *456activities which are not matters of common experience is well-adapted to a jury’s limited ability to judge whether proper precautions were observed with such activities.

Problems of proof which might otherwise have been faced by shippers, bailors, or guests at hotels and inns certainly played a significant role in shaping the strict liabilities of carriers, bailees, and innkeepers. Problems of proof in suits against manufacturers for harm done by defective products became more severe as the composition and design of products and the techniques of manufacture became less and less matters of common experience; this was certainly a factor bringing about adoption of a strict liability standard.

(Footnote omitted.) C. Peck, Negligence and Liability Without Fault in Tort Law, 46 Wash. L. Rev. 225, 240 (1971).

See also, G. P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537 (1972), for an analysis of the judicial philosophy relating to .tort liability as affecting or affected by concepts of fault and negligence; and Comment, Liability Without Fault: Logic and Potential of a Developing Concept, 1970 Wis. L. Rev. 1201.

Thus, the reasons for applying a rule of strict liability obtain in this case. We have a situation where a highly flammable, volatile and explosive substance is being carried at a comparatively high rate of speed, in great and dangerous quantities as cargo upon the public highways, subject to all of the hazards of high-speed traffic, multiplied by the great dangers inherent in the volatile and explosive nature of the substance, and multiplied again by the quantity and size of the load. Then we have the added dangers of ignition and explosion generated when a load of this size, that is, about 5,000 gallons of gasoline, breaks its container and, cascading from it, spreads over the highway so as to release an invisible but highly volatile and explosive vapor above it.

Danger from great quantities of gasoline spilled upon the public highway is extreme and extraordinary, for any spark, flame or appreciable heat is likely to ignite it. The *457incandescent filaments from a broken automobile headlight, a spark from the heat of a tailpipe, a lighted cigarette in the hands of a driver or passenger, the hot coals from a smoker’s pipe or cigar, and the many hot and sparking spots and units of an automobile motor from exhaust to generator could readily ignite the vapor cloud gathered above a highway from 5,000 gallons of spilled gasoline. Any automobile passing through the vapors could readily have produced, the flames and explosions which killed the young woman in this case and without the provable intervening negligence of those who loaded and serviced the carrier and the driver who operated it. Even the most prudent and careful motorist, coming unexpectedly and without warning upon this gasoline pool and vapor, could have driven into it and ignited a holocaust without knowledge of the danger and without leaving a trace of what happened to set off the explosion and light the searing flames.

Stored in commercial quantities, gasoline has been recognized to be a substance of such dangerous characteristics that it invites a rule of strict liability—even where the hazard is contamination to underground water supply and not its more dangerous properties such as its explosiveness and flammability. See Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969). It is even more appropriate, therefore, to apply this principle to the more highly hazardous act of transporting it as freight upon the freeways and public thoroughfares.

Recently this court, while declining to apply strict liability in a particular case, did acknowledge the suitability of the rule in a proper case. In Pacific Northwest Bell Tel. Co. v. Port of Seattle, 80 Wn.2d 59, 491 P.2d 1037 (1971), we observed that strict liability had its beginning in Fletcher v. Rylands, supra, but said that it ought not be applied in a situation where a bursting water main, installed and maintained by the defendant Port of Seattle, damaged plaintiff telephone company’s underground wires. There the court divided—not on the basic justice of a rule of strict liability •in some cases—but in its application in a particular case to *458what on its face was a situation of comparatively minor hazards. Both majority and dissenting justices held, however, that the strict liability principles of Fletcher v. Rylands, supra, should be given effect in some cases; but the court divided on the question of whether underground water mains there constituted such a case.

The rule of strict liability, when applied to an abnormally dangerous activity, as stated in the Restatement (Second) of Torts § 519 (Tent. Draft No. 10, 1964), was adopted as the rule of decision in this state in Pacific Northwest Bell Tel. Co. v. Port of Seattle, supra at 64, as follows:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent such harm.

(2) Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous.

As to what constitutes an abnormal activity, section 520 states:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others;-

(b) Whether the gravity of the harm which may result from it is likely to be great;

(c) Whether the risk cannot be eliminated by the exercise of reasonable care;

(d) Whether the activity is not a matter of common usage;

(e) Whether the activity is inappropriate to the place where it is carried on; and

(f) The value of the activity to the community.

Applying these factors to this system, we do not find the activity to be abnormally dangerous. There has never been a break in the system before, absent an earthquake, and the pipe could have been expected to last many more years. It is a system commonly used for fire protection, and its. placement underground is, of course, appropriate. We do not find section 519 of the Restatement (Tent. *459Draft No. 10, 1964), or Rylands v. Fletcher, supra, applicable.

It should be noted from the above language that we rejected the application of strict liability in Pacific Northwest Bell Tel. Co. v. Port of Seattle, supra, solely because the installation of underground water mains by a municipality was not, under the circumstances shown, an abnormally dangerous activity. Had the activity been found abnormally dangerous, this court would have applied in that case the rule of strict liability.

Contrast, however, the quiet, relatively safe, routine procedure of installing and maintaining and using underground water mains as described in Pacific Northwest Bell Tel. Co. v. Port of Seattle, supra, with the activity of carrying gasoline as freight in quantities of thousands of gallons at freeway speeds along the public highway 'and even at lawful lesser speeds through cities and towns and on secondary roads in rural districts. In comparing the quiescence and the passive job of maintaining underground water mains with the extremely heightened activity of carrying nearly 5,000 gallons of gasoline by truck, one cannot escape the conclusion that hauling gasoline as cargo is undeniably an abnormally dangerous activity and on its face possesses all of the factors necessary for imposition of strict liability as set forth in the Restatement (Second) of Torts § 519 (Tent. Draft No. 10,1964), above.

Transporting gasoline as freight by truck along the public highways and streets is obviously an activity involving a high degree of risk; it is a risk of great harm and injury; it creates dangers that cannot be eliminated by the exercise of reasonable care. That gasoline cannot be practicably transported except upon the public highways does not decrease the abnormally high risk arising from its transportation. Nor will the exercise of due and reasonable care assure protection to the public from the disastrous consequences of concealed or latent mechanical or metallurgical defects in the carrier’s equipment, from the negligence of third parties, from latent defects in the highways and *460streets, and from all of the other hazards not generally disclosed or guarded against by reasonable care, prudence and foresight. Hauling gasoline in great quantities as freight, we think, is an activity that calls for the application of principles of strict liability.

The case is therefore reversed and remanded to the trial court for trial to the jury on the sole issue of damages.

Hamilton, C.J., Finley, Rosellini, and Hunter, JJ., and Ryan, J. Pro Tem., concur.

Rosellini, J.

(concurring)—I agree with the majority that the transporting of highly volatile and flammable substances upon the public highways in commercial quantities and for commercial purposes is an activity which carries with it such a great risk of harm to defenseless users of the highway, if it is not kept contained, that the common-law principles of strict liability should apply. In my opinion, a good reason to apply these principles, which is not mentioned in the majority opinion, is that the commercial transporter can spread the loss among his customers—who benefit from this1 extrahazardous use of the highways. Also, if the defect which caused the substance to escape was one of manufacture, the owner is in the best position to hold the manufacturer to account.

I think the opinion should make clear, however, that the owner of the vehicle will be held strictly liable only for damages caused when the flammable or explosive substance is allowed to escape without the apparent intervention of any outside force beyond the control of the manufacturer, the owner, or the operator of the vehicle hauling it. I do not think the majority means to suggest that if another vehicle, negligently driven, collided with the truck in question, the truck owner would be held liable for the damage. But where, as here, there was no outside force which caused the trailer to become detached from the truck, the rule of strict liability should apply.

It also is my opinion that the legislature has expressed an intent that owners and operators of vehicles carrying trail*461ers should be required to keep them under control, and that intent can be found in the statutes cited in the majority opinion. Thus the application of the common-law principles of strict liability is in accord with the manifest legislative view of the matter.

It also should be remarked, I think, that there was in this case no evidence that the alleged negligence of the deceased, in driving faster than the posted speed, was in any sense a proximate cause of the tragedy which befell her. There was no showing that, had she been proceeding at the legal rate of speed, she could have stopped her vehicle in time to avoid being enveloped in the flames or that the gasoline would not have ignited. Thus we are not confronted in this case with a question whether contributory negligence might under some circumstances be a defense to an action of this kind. It should be understood that the court does not pass upon that question at this time.

Hamilton, C.J., Finley, J., and Ryan, J. Pro Tern., concur with Rosellini, J.

Neill, J.

(dissenting)—The application of the doctrine of strict liability to the facts of this case is warranted, at least as the applicability is qualified by the concurring opinion of Justice Rosellini. However, to decide this case on that theory violates our established rules of appellate review. National Indem. Co. v. Smith-Gandy, Inc., 50 Wn.2d 124, 309 P.2d 742 (1957); State v. McDonald, 74 Wn.2d 474, 445 P.2d 345 (1968).

Plaintiff seeks money redress for the death of an exemplary young woman whose life was horribly terminated in a tragic accident. A jury absolved the defendants from culpability. Irrespective of our sympathy, that jury verdict must stand unless error was committed at the trial. On appeal, the Court of Appeals affirmed the verdict and judgment. Siegler v. Kuhlman, 3 Wn. App. 231, 473 P.2d 445 (1970). We granted review. 78 Wn.2d 991 (1970).

The only issue brought to this court by the appeal is the procedural effect of res ipsa loquitur. Before discussing that *462issue, I will address other portions of the majority and concurring opinions with which I am in disagreement.

The injection of the issue of the applicability and construction of RCW 46.44.070 is improper. The issue was not raised at trial, nor in the Court of Appeals. Following the granting of a petition for review, this court, sua sponte, requested counsel to submit supplemental briefs as to the statute. This is an appellate procedure to which I have previously expressed my dissent. Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 625, 465 P.2d 657 (1970).2 My disagreement with such judicial usurpation of an adversary function is even stronger here, where the meaning ascribed to the statute in focus depends upon an interpretation which that statute has not heretofore received. The majority opinion assumes that the language of RCW 46.44.070 requiring the trailer “connection . . . [to] be of sufficient strength to hold the weight of the towed vehicle on any grade where operated” applies to situations where the trailer breaks away to the side of the towing vehicle. Whether or not that interpretation should be applied to the statute is a question that should await a case where the issue is timely and properly presented.

Further, RCW 46.44.070, even as read by the majority, cannot be applied here without first assuming as fact that the connection was not secure. In this case that assumption is an inappropriate trespass on the jury’s function. As the majority notes, the question of whether the connection came loose because improperly secured is raised by circumstantial evidence. In fact, much of the trial was directed to expert testimony as to whether the trailer connection first came loose or whether the breaking of a supporting spring caused the ultimate separation of the connection. Thus any answer to that question is properly the subject of the jury’s *463consideration from the evidence and reasonable inference from the circumstantial evidence. Unless we are prepared to hold that the statute makes the operator of a truck and tractor rig a guarantor of the security of the connection under all circumstances, we cannot state that the answer is a matter of certitude.

The jury was instructed on contributory negligence. No exception was taken nor has error been assigned to the instruction. Yet, the concurring opinion, sua sponte, questions the giving of the instruction. It has been my understanding that an instruction to which error is not assigned becomes the law of the case. E.g., Kindelspire v. Lawrence, 44 Wn.2d 722, 270 P.2d 477 (1954); Ralston v. Vessey, 43 Wn.2d 76, 260 P.2d 324 (1953). I think it beyond the proper scope of appellate review to “try the case” for the parties.

I turn to the sole and only assignment of error presented to us: that the jury should have been given one of two res ipsa loquitur instructions proposed by plaintiff. The applicability of that doctrine to the facts of this case is not contested and is not in issue here. The question is the procedural effect to be given that doctrine in the case at hand. I disagree with the treatment that the majority has given to this question and adhere to the lead opinion in Zukowsky v. Brown, 79 Wn.2d 586, 488 P.2d 269 (1971). First, the majority opinion chooses to ignore, rather than grapple with, the serious' and difficult problems associated with the question of the procedural effect to be given res ipsa loquitur. See Zukowsky v. Brown, supra, and authorities therein cited. Also see Siegler v. Kuhlman, 3 Wn. App. 231, 473 P.2d 445 (1970). In consequence, the majority decision, as to this point, contributes nothing to the body of law, and yields only a sui generis result. Having refused to meet the problem, the majority cannot be read as either enhancing, diminishing, or altering answers arrived at in cases where the issue has been met.3

*464In addition, plaintiff’s proposed instructions on res ipsa were defective. Each proposed instruction contains language criticized in Clark v. Icicle Irrigation Dist., 72 Wn.2d 201, 203, 432 P.2d 541 (1967):

We particularly disagree with the statement that “the happening of the accident alone affords reasonable evidence . . . that the accident arose from the want of reasonable care.” We have been at some pains to make it clear that the happening does not afford “reasonable evidence”; that it does no more than permit the jury to infer, •though it is not required to so infer, that the defendant or its agents were at some point negligent.

See recent discussion in Pederson v. Dumouchel, [72 Wn.2d 73], 431 P.2d 973 (1967).

Plaintiff’s first assignment of error is the trial court’s failure to give a requested instruction stating:

You are instructed that when a thing which causes an injury to another is shown to be under the management and control of the person charged with negligence in operation or maintenance of such thing, or in the failure to keep it in a reasonably safe condition, and if it is shown that an accident happened, which in the ordinary course of things, does not happen if those in charge of the management and maintenance of thing exercised reasonable care, then the happening of the accident alone affords reasonable evidence in the absence of explanation by the person charged with negligence that the accident arose from want of reasonable care on the part of such persons.

(Italics mine.)

Plaintiff’s second, and only other, assignment of error is the failure to give an instruction stating:

You are instructed that when an object which causes an injury to another is shown to be under the management and control of a person charged with negligence in the operation of such thing, or in the failure to keep it in a reasonably safe condition and if it is shown that the incident happened which in the ordinary course of things does not happen, if those in charge of this management and control exercise reasonable care, then the happening of said occurrence affords reasonable evidence, in the *465absence of an explanation by the person charged with negligence, that the occurrence arose from the want of reasonable care on the part of such person.

(Italics mine.)

Thus plaintiff’s proposed res ipsa instructions were defective by including the “affords reasonable evidence” language criticized in Clark 4 A trial court need not give an erroneous instruction. State v. Wilson, 26 Wn.2d 468, 174 P.2d 553 (1946).

I would affirm the trial court and the Court of Appeals.

Stafford, J., concurs with Neill, J.

Petition for rehearing denied January 4, 1973.

Dolliver, J.

Plaintiff Mark Brown, while attempting to light an oil stove on December 31, 1978, unwittingly ignited natural gas which was leaking from a damaged gas line several blocks away. The natural gas, unable to permeate the frozen ground, traveled laterally entering the drain field which serviced Brown's residence. The leak allegedly was caused 7 years earlier when Cable Way, Inc. (Cable Way), while laying underground telephone cable for Pacific Northwest Bell (PNB), damaged a 2-inch gas transmission line owned by Washington Water Power Company (WWP). The subsequent explosion seriously injured Brown and destroyed the residence he rented from New Meadows Holding Company (New Meadows).

Plaintiff New Meadows sued WWP, PNB, and Cable Way. WWP answered and sought indemnity by cross claim from PNB and Cable Way. PNB brought separate summary judgment motions for dismissal against New Meadows and WWP asserting the claim and cross claim were barred by the statutes of limitation in RCW 4.16.300-.320. New Meadows failed to appear and did not contest the motion. WWP appeared and resisted the motion. Both motions for dismissal were granted. New Meadows and WWP appealed.

Subsequently, Brown and New Meadows sued WWP alleging liability based upon negligence and strict liability. They then filed a motion for summary judgment against WWP on the issue of strict liability. This motion was granted.

Court of Appeals, Division Three, granted discretionary *498review of the summary judgment order holding WWP strictly liable. This case and the appeals of New Meadows and WWP from the orders dismissing their actions against PNB were placed on a parallel perfection schedule and decided in a single opinion.

In New Meadows Holding Co. v. Washington Water Power Co., 34 Wn. App. 25, 659 P.2d 1113 (1983), Division Three held RCW 4.16.300-.320 did not apply to claims for damages to adjacent property and therefore reversed PNB's summary judgment on WWP's cross claim. The court, however, affirmed PNB's summary judgment against New Meadows, finding its failure to contest the motion amounted to waiver. Additionally, the court held the transmission of natural gas through underground lines was not an abnormally dangerous activity. Therefore, the summary judgment against WWP on the issue of strict liability was reversed. Plaintiffs' petition for discretionary review was granted.

I

Initially, we must determine whether the failure of New Meadows to contest PNB's motion for summary judgment waived its right to appeal. Failure to raise an issue before the trial court generally precludes a party from raising it on appeal. Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983). This rule affords the trial court an opportunity to rule correctly upon a matter before it can be presented on appeal. Lake Air, Inc. v. Duffy, 42 Wn.2d 478, 482, 256 P.2d 301 (1953). However, this rule does not apply when the question raised affects the right to maintain the action. Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 621, 465 P.2d 657 (1970).

Since to deem New Meadows' failure to appear as a waiver affects its right to maintain the action, New Meadows' claim falls squarely under the exception to the general rule. Moreover, the trial court was not deprived of an opportunity to rule on the applicability of RCW 4.16.300-.320 to this case. PNB's motions for summary judgment, *499based on these statutory provisions, were adequately briefed and argued by PNB and WWP. New Meadows and WWP had identical interests. Thus, New Meadows' argument was not raised for the first time on appeal. We reverse the lower court's summary judgment dismissal of New Meadows' claim.

II

Next, at issue is whether New Meadows' claim and WWP's cross claim against PNB are barred by RCW 4.16-.300-320. RCW 4.16.300-.320 apply to all claims or causes of action arising from construction, alteration, or repair of any improvement upon real property. RCW 4.16.310 states such claims

shall accrue, and the applicable statute of limitation shall begin to run only during the period within six years after substantial completion of construction . . . Any cause of action which has not accrued within six years . . . shall be barred: Provided, That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues.

The Court of Appeals, relying on Vern J. Oja & Assocs. v. Washington Park Towers, Inc., 89 Wn.2d 72, 569 P.2d 1141 (1977), held the statute did not apply to claims for damages to adjacent property. We disagree. Oja held, under the 3-year statute of limitation in RCW 4.16.080(1), the discovery rule determines when a cause of action accrues in cases involving damage to real property arising out of construction on adjacent property.

This holding has no impact on the absolute limitation on actions defined in RCW 4.16.310. Gazija v. Nicholas Jems Co., 86 Wn.2d 215, 222 n.2, 543 P.2d 338 (1975); Hudesman v. Meriwether Leachman Assocs., Inc., 35 Wn. App. 318, 320-23, 666 P.2d 937 (1983). This statute begins to run upon substantial completion of a project, not upon the accrual of a claim. In fact, the statute runs against the accrual of any claim arising from the project. Consequently, for a claim to be heard, it must accrue within 6 *500years. Additionally, RCW 4.16.310 applies to all claims of causes of action arising from the activities covered. The focus is upon the cause of the damage, not its location. We conclude, therefore, the statute applies equally to claims arising from adjacent property.

The proviso of RCW 4.16.310, however, which prohibits an owner, tenant, or other person in possession and control of the improvement from asserting the limitation as a defense, removes PNB from the terms of the statute. PNB, as owner of the telephone cable, falls within the proviso. The claims of New Meadows and WWP are not barred by RCW 4.16.300-.320.

Ill

Washington, as well as all other jurisdictions in the United States, applies a negligence standard to the underground piping of gas. See Richey & Gilbert Co. v. Northwestern Natural Gas Corp., 16 Wn.2d 631, 134 P.2d 444 (1943); Senske v. Washington Gas & Elec. Co., 165 Wash. 1, 4 P.2d 523 (1931); Annot., Liability of Gas Company for Personal Injury or Property Damage Caused by Gas Escaping From Mains in Street, 96 A.L.R.2d 1007 (1964 & Supp. 1983). Plaintiffs urge us to reexamine this doctrine and adopt the rule that the transmission of natural gas through underground lines is an abnormally dangerous activity upon which strict liability should be imposed.

Strict liability is imposed when the conditions of Restatement (Second) of Torts §§ 519, 520 (1977) are met. Pacific Northwest Bell Tel. Co. v. Port of Seattle, 80 Wn.2d 59, 64, 491 P.2d 1037 (1971) (holding underground water mains do not constitute an abnormal condition warranting strict liability). Section 519 provides for the imposition of strict liability upon those who are carrying on an "abnormally dangerous activity". Whether an activity is abnormally dangerous is a question of law for the court to decide. Langan v. Valicopters, Inc., 88 Wn.2d 855, 861, 567 P.2d 218 (1977).

Section 520 lists the factors to be considered when deter*501mining what constitutes an abnormally dangerous activity:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

An examination of these factors as they apply to the facts persuades us, as it did the Court of Appeals, that strict liability should not be imposed in this case.

It is conceded with regard to factors (a) and (b), that the volatile and highly explosive nature of natural gas potentially presents a high degree of risk of great harm. The invisibility of natural gas increases the risk of injury in that it decreases the likelihood escaping gas will be detected. As to factor (c), the phrase "the risk" plainly refers to the "high degree of risk" mentioned in factor (a). Thus, factor (c) addresses itself to the question of whether, through the exercise of ordinary care, the risk inherent in an activity can be reduced to the point where it can no longer be characterized as a "high degree of risk".

Some degree of risk of natural gas pipeline leaks will always be present. This does not mean, however, that the "high degree of risk" with which section 520 is concerned cannot be eliminated by the use of reasonable care with regard to the dangerous character of the commodity. See, e.g., Fields v. Western Ky. Gas Co., 478 S.W.2d 20, 22-23 (Ky. 1972); Bubrick v. Northern Ill. Gas Co., 130 Ill. App. 2d 99, 107-08, 264 N.E.2d 560 (1970). Gas companies are subject to strict federal and state safety regulations. 15 U.S.C. §§ 717, 719; 49 U.S.C. §§ 1671-1686; 49 C.F.R. § 192 (1983); WAC 480-93. Programs for corrosion control, pipeline testing, gas leak investigation, and awareness of con*502struction work near gas company facilities must be maintained. WAC 480-93-110, -170, -185, -190. Odorizers are placed in the gas itself to increase the likelihood of detection in those rare instances when natural gas does escape. In light of all this, we believe the high degree of risk involved in the transmission of natural gas through underground lines can be eliminated by the use of reasonable care and legislative safeguards.

Factors (d), (e), and (f) clearly weigh against imposition of strict liability. The underground transmission of gas is a matter of common usage which is appropriate to the place where it is carried on. In their brief, amici curiae on behalf of the American Gas Association estimate approximately 160 million people use gas for residential needs. About 35 percent of the total energy used by industry is provided by natural gas, United States Dep't of Energy Information Admin., Monthly Energy Review 23 (December 18, 1981); and 720,900 miles of distribution pipelines crisscross communities in every state and the District of Columbia, including 10,062 miles in Washington state. American Gas Ass'n, Gas Facts, 1982 Data 61, 63 (1983). Hence, it is entirely appropriate and necessary for communities to have gas lines placed underground.

New Meadows relies upon Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972), cert. denied, 411 U.S. 983 (1973) (strict liability imposed on hauling gasoline in commercial quantities as freight upon public highways). Siegler, however, is easily distinguishable. The court in Siegler stated:

Stored in commercial quantities, gasoline has been recognized to be a substance of such dangerous characteristics that it invites a rule of strict liability — even where the hazard is contamination to underground water supply and not its more dangerous properties such as its explosiveness and flammability. It is even more appropriate, therefore, to apply this principle to the more highly hazardous act of transporting it as freight upon the freeways and public thoroughfares.

(Citation omitted.) Siegler, at 457. The underground transmission of natural gas presents a significant contrast to the *503activity at issue in Siegler. Natural gas flows through a small (2-inch) pipe which is buried underground, away from the dangers of the surface world. There are no careless drivers, faulty brakes, or slippery roads with which to contend. The heightened danger resulting from the storage of a highly volatile substance in large commercial quantities, rolling at high speed on a well traveled highway, is also absent.

Furthermore, where there is the intervention of an "outside force beyond the control of the manufacturer, the owner, or the operator of the vehicle hauling [the gasoline]", the rule of strict liability should not apply. Siegler, at 460 (Rosellini, J., concurring). Here, the gas leak was allegedly caused when a contractor laying underground telephone cable for Pacific Northwest Bell damaged a 2-inch gas transmission line owned by defendant. Neither in its facts nor in its law does Siegler apply to this case.

We affirm the holding of the Court of Appeals that the transmission of natural gas through underground lines is not an "abnormally dangerous activity" upon which strict liability should be imposed, and reverse New Meadows' summary judgment against Washington Water Power on that issue. The case is remanded for trial on the issue of whether Washington Water Power exercised a degree of care commensurate to the danger involved in transmitting natural gas.

Utter, Brachtenbach, and Dimmick, JJ., and Morgan, J. Pro Tern., concur.

Pearson, J.

(concurring) — I concur with the majority. Strict liability may not be imposed under the Restatement (Second) of Torts § 520 (1977) on the basis of factors (a) and (b) alone.

Regarding factor (c), I agree with the majority that it is not present in this case. However, even if factor (c) were present, I would not impose strict liability under section 520. Comment h to section 520 states, in pertinent part:

*504A combination of the factors stated in Clauses (a), (b) and (c), or sometimes any one of them alone, is commonly expressed by saying that the activity is "ultraha-zardous," or "extra-hazardous." Liability for abnormally dangerous activities is not, however, a matter of these three factors alone, and those stated in Clauses (d), (e), and (f) must still be taken into account.

(Italics mine.) Thus, strict liability for abnormally dangerous activities may not be imposed absent the presence of at least one of the factors stated in clauses (d), (e) and (f). None of those three factors justify the imposition of strict liability in this case.

Rosellini, J.

(dissenting) — The majority today departs from the analysis of strict liability contained in Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972), cert. denied, 411 U.S. 983 (1973). In so doing, the majority forecloses recovery to a seriously injured individual who— indisputably — bears no responsibility for the accident. With this result I cannot agree.

As pointed out by the majority, the Restatement (Second) of Torts § 520 (1977) sets out six factors to be considered. Section 520 states:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

Comment f to section 520 states that all six factors should be considered; while it is not necessary that all elements be present, ordinarily several are required for strict liability.

*505Here, the majority opinion acknowledges that the first two elements are present; natural gas creates a high degree of risk, and there is a likelihood of great harm should gas escape from gas lines. The majority holds, however, that the final four elements of section 520 are missing, and therefore strict liability should not be applied. The majority's analysis misapplies the Restatement section by ignoring the similarity between transportation of gasoline on the highway and the transport of natural gas, and rejects sound policy reasons for applying strict liability to the facts of this case.

To begin with, the majority misapplies section 520 of the Restatement by concluding that factor (c), the inability to eliminate the risk by the exercise of reasonable care, does not apply to the transport of natural gas. I believe it does.

The transmission of natural gas is analogous to the transportation of gasoline. Natural gas, like gasoline, remains relatively safe if contained in its proper place, i.e., gas lines, storage tanks or even automobiles. Once natural gas or gasoline escapes, however, the exercise of ordinary or even extraordinary care frequently is incapable of averting an explosion. See Siegler v. Kuhlman, supra. In Siegler, we found this factor weighed heavily in favor of imposing strict liability. In the same way, the hazards associated with escaped natural gas demand imposition of strict liability.

The majority ignores this similarity by observing that the transport of natural gas involves no negligent drivers, slippery roads or faulty brakes. This distinction neglects the risks that may occur, such as negligent excavators, faulty digging equipment or vandals who may remove or damage warning signs.

Moreover, unlike the majority here, the court in Siegler did not feel compelled to slavishly total the number of factors in favor of imposition against those that did not. Instead, the court recognized the extreme hazard involved with the handling of this product and concluded sound policy dictated imposition of strict liability. In the same way, sound policy considerations dictate imposition of strict *506liability here.

First, principles of risk allocation support the premise that between two innocent parties, the one benefiting from an activity should bear the risk of loss. Having received a benefit, that party is then in a position to spread the risk of loss to consumers of the products.

Furthermore, where the abnormally dangerous activity involves high risk of explosions, the one engaged in that activity has a better opportunity to determine the cause of the incident and can therefore seek indemnification. The injured plaintiff can prove negligence as to a third party only with great difficulty.

Finally, the imposition of strict liability here will spur the natural gas companies to greater safety precautions, such as periodic inspections and supervision of excavating activities within the vicinity of their lines.

For these reasons and those discussed above, I believe strict liability should be imposed. I therefore dissent.

Williams, C.J., and Dore, J., concur with Rosellini, J.

*553PRATT, Justice.

This is an appeal from a decree of the lower court sustaining a general demurrer to appellant’s amended complaint and entering judgment for the respondent.

The facts, as alleged in the amended complaint, are as follows: Appellant owns the Madsen Mink Farm in Sandy, Utah, using said farm to breed and raise mink for sale. The farm is located 100 yards north of respondent’s irrigation canal and, on May 5, 1941, respondent, in repairing its canal, blasted with explosives, causing vibrations and noises which frightened the mother mink and caused 108 of them to kill 230 of their “kittens” (offspring). The appellant further alleges that, by nature, habit and disposition all mink, when with and attending their young, are highly excitable and, when disturbed, will become terrified and kill their young. Appellant places a value of $25 each on said “kittens” and seeks to recover $5,750 as damages.

Respondent filed a general demurrer to the amended complaint, which demurrer was sustained and appellant given five days in which to amend.

Appellant failed to amend and judgment was entered for the respondent. It is from such judgment that this appeal is taken.

Respondent, in his brief, contends that, because the injury in the present case was consequential rather than immediate, the amended complaint does not state facts sufficient to constitute a cause of action in trespass. He further contends that the amended complaint did not state facts sufficient to constitute a cause of action in case.

It is conceded that the rule of absolute liability prevails when one uses explosives and the blasting of said explosives results in hurling of rock, earth or debris which causes injury to another. 22 Am. Jur., Explosions, Page 179, Paragraph 53; 25 C. J. 192. The weight of authority sustains the position that there is no distinction in liability for damage in nonconcussion and concussion cases. *554This majority rule, led by California, prevails in 14 jurisdictions.

The minority rule, led by New York, holds that negligence must be alleged in concussion cases. These jurisdictions do not concede liability in blasting cases where damage is caused by shock or air vibrations rather than the hurling of rock, earth or debris. This distinction is based upon the historical differences between the common-law actions of trespass and case. There is no practical difference between liability occasioned by blasting which projects rocks on another’s property or by creating a sudden vacuum and resultant concussion. 92 A. L. R. 742. Had the concussion in the instant case killed the kittens directly, without the intervention of the mother minks, the majority rule of liability in concussion cases would have been applicable, but the case at bar presents the additional element of the mother minks’ independent acts, threby raising a question of proximate causation. Query: Did the mother minks’ intervention break the chain of causation and therefore require an allegation of negligence?

Many years ago (1896) a Maine court held that the intervening act of an animal broke the chain of causation to such extent that blasting could not be considered the proximate cause of injury and negligence on the part of the blaster had to be proved. Wadsworth v. Marshall, 88 Me. 263, 34 A. 30, 32 L. R. A. 588. In the Wadsworth case, the plaintiff was riding along a public highway near which defendant was operating a quarry. He exploded a blast which frightened plaintiff’s horse and she (plaintiff) was injured. There was a Maine statute requiring persons engaged in blasting to give reasonable notice of their intention to blast to all persons in the vicinity of the blast. The trial court excluded testimony as to the viciousness and nervousness of plaintiff’s horse, proceeding upon the ground that defendant violated the statute by failing to give the required notice and therefore he was liable regardless of the character of the horse or any negligence of the plaintiff. The ap*555pellate court reversed the lower court’s decision, holding that it would be a harsh construction of the statute to hold that the negligence of the quarry-man in not giving notice subjected him to liability for damages largely, if not wholly, resulting from the negligence of the traveler in riding an unsuitable horse. The court ruled that “the established doctrine of contributory negligence, as a defense, applies to this class of actions.”

While the above ruling interjects an element — contributory negligence — which is absent in the present case, it impresses one with the thought that he who fires explosives is not liable for every occurrence following the explosion which has a semblance of connection to it. Jake’s horse might become so excited that he would run next door and kick a few ribs out of Cy’s jersey cow, but is such a thing to be anticipated from an explosion? Whether the cases are concussion or nonconcussion, the results chargeable to the nonnegligent user of explosives are those things ordinarily resulting from an explosion. Shock, air vibrations, thrown missiles are all illustrative of the anticipated results of explosives; they are physical as distinguished from mental in character. The famous Squib case does not mitigate what has been said in the preceding lines. That was a case where the mental reaction was to be anticipated as an instinctive matter of self-preservation. In the instant case, the killing of their kittens was not an act of self-preservation on the part of the mother mink but a peculiarity of disposition which was not within the realm of matters to be anticipated. Had a squib been thrown and suddenly picked up by a dog, in fun, and carried near another, it is ventured that we would not have had a famous Squib case, as such a result would not have been within the realm of anticipation.

We are of the opinion that the lower court properly sustained the demurrer.

Judgment affirmed. Costs to respondent.

*556MOFFAT, C. J., and LARSON and McDONOUGH, JJ., concur.

WOLFE, Justice

(concurring).

I concur. If actual tangible matter is projected by the blast on the property of another, it is held to be a trespass. One can sympathize with the view that if property is immediately injured by a force caused by a blast transmitted by concussion of air it is still a trespass. As stated in the opinion, there is a division of authority on that matter.

In the case of O’Neill v. San Pedro, Los Angeles & Salt Lake Railroad Company, 38 Utah 475, 114 P. 127, it was held that damage due to repeated vibrations over a long period of time must be chargeable in case, and negligence proved. Unless distinction can be made between a result caused by a series of recurring similar events and a result caused by one event, it would seem that the O’Neill case has committed this court to the view that a vibration transmitted through a solid medium acting on a building is not a trespass but calls for an action of trespass on the case. It would follow, therefore, that a force transmitted by a rarer medium would also call for action of trespass on the case. Realistically, there is a difference between a damage caused by continued vibrations of trains which are performing a necessary public service, and a damage caused by a single blast set off on the private property of another. It is such differences which make law not mainly the product of logic, but of experience, social necessity and distribution of the cost of consequences. Our common existence may require the law to hold that damage to property caused by unavoidable vibrations of passing trains is damnum absque injuria whilst to permit one owner, by a blast on his own property to shake down the house of another, requires a rule which recognizes that however free from negligence the first may be the second innocent person should not suffer. The very essence of fairness seems to suggest that if one, in order to obtain a certain type of use or enjoyment of his own *557property, is compelled to blast, he must, as part of the cost of such use or enjoyment, pay the damages he causes to his innocent neighbor. Logically a series of imperceptible injuries to a dwelling due to the periodic vibiration of trains over a long period of time is but the accumulated injuries inflicted by each of a series of trespasses. Law not following logic may say:

“The vibration of a train in itself is not dangerous like a blast from an explosion. Its single influence is imperceptible but the accumulated results may be injurious, but only if it can be shown that the accumulated results were the result of negligent construction or operation •can we give damages. Otherwise, the property owner must submit to the greater needs of society.”

Be that as it may, jurisdictions which hold that trespass lies where damage is directly and immediately caused by concussion arising from a blast on neighboring property cannot be said to hold that trespass lies for ultimate damage caused by an animal or a human who is affected by the ■concussions.

Scott v. Shephard, 1 Smith Leading Cases 337, 2 W. Bl. 892, 3 Wils. 403 (Squib Case), is not to the contrary. That was treated as a ricochetting Squib, the transfer by human hands being automatic. Distinctions based on the nature of the mental reaction may, in some cases, be too refined to be of practical use. We may say at least that where the reaction is purely reflex and automatic according to the Squib case the person so acting is as if an inanimate link in the chain of causation and the action lies in trespass. Where the animal or person commits an injury concededly acting in response to certain stimuli, but not purely automatically, which were the result of forces set in motion by the defendant, the action, if any, lies in case.

Being an action in case, negligence must be alleged and proved. We do not need to determine whether if negligence had been alleged a cause of action would have been stated under the circumstances of this case. A discussion of the “range of apprehension” as expressed in Palsgraf v. Long *558 Island R. Co., 248 N. Y. 339, 162, N. E. 99, 100, 59 A. L. R. 1253, is contained in Barrus v. Western Union Telegraph Co., 90 Utah 391, 62 P. 2d 113. I conceive of the intermediation of the reflexes of the mother mink as serving in legal concept a dual purpose. Even where it is held that injury due to concussion transmitted by air is a trespass where the injury is direct or immediate, a result arrived at through the concussion action on the mind of the mother mink would not be trespass; hence, negligence would have to be alleged. If alleged it would then be time to determine whether it. was within the range of apprehensibility.

Boyle, J.

Today we are asked to consider which theories of liability are appropriate for an action against one in temporary possession of a domestic animal that inflicts injuries while in such possession. The Court of Appeals allowed the plaintiffs’ common-law strict liability and negligence claims against a temporary caretaker of a dog to survive the caretaker’s motion for summary disposition. Because we hold that the temporary caretaker in this case did not possess the dog with the requisite proprietary control to be deemed the dog’s owner or keeper, we reverse that portion of the Court of Appeals opinion allowing a common-law strict liability cause of action. However, a negligence cause of action may be maintained against a person in temporary possession of a domestic animal, as long as there is a genuine issue of fact regarding the requisite elements of such a claim. We therefore affirm the Court of Appeals decision to allow the plaintiff’s action to go forward under this theory.

i

Most of the facts of this case are not in dispute. On May 1, 1988, Robert Thor went to the home of his son and daughter-in-law, Thomas and Patricia Thor. Robert Thor owned the property, which he rented to his son and his family, and had come to visit his grandchildren and supervise some grading in the backyard that afternoon. When Robert Thor arrived, two neighbor children, Rachael and Nicole Trager, were playing in the Thor’s backyard with Thomas and Patricia Thor’s children and the Thor’s English sheepdog, Chadwick.

*98Shortly after his arrival, Robert Thor agreed to supervise the home while Thomas and Patricia Thor left to do some shopping. Before leaving, Thomas and Patricia placed Chadwick in the house. When the workman arrived to begin grading the backyard, Robert Thor put the dog in a bedroom and shut the door before going outside. This was done as a precaution against Chadwick escaping through the front door and running loose in the neighborhood. At this point there are disputed facts with regard to whether the Trager children were asked to go home or if Rachael Trager was given permission by Robert Thor to use the bathroom in the Thor residence. What is not disputed, however, is that Rachael Trager ended up in the Thor house, where she was bitten and scratched by Chadwick.

During discovery, Robert Thor indicated that he had knowledge of an incident before that in question where Chadwick had bitten a child. It was Mr. Thor’s opinion that the dog had been antagonized and provoked in that instance.

Randy Trager, as next friend of Rachael, and Randy and Brenda Trager, Rachael’s parents, individually, filed suit against Thomas and Patricia Thor and Robert Thor to hold them liable for the injuries inflicted by Chadwick.1 The Court of Appeals having reversed the trial court’s summary disposition of the claims against Robert Thor, the issues presented are whether the plaintiffs state a claim upon which the relief sought can be granted on a theory of strict liability or negligence.2_

*99ii

There has long existed at common law a cause of action against possessors of certain domestic animals3 for harm caused by those animals, regardless of fault. This common-law theory of strict liability4 is accurately stated in 3 Restatement Torts, 2d, § 509, p 15, as follows:

(1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.

(2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know.

Strict liability attaches for harm done by a domestic animal where three elements are present: (1) one is the possessor of the animal, (2) one has scienter of the animal’s abnormal dangerous propensities, and (3) the harm results from the dangerous propensity that was known or should have been known. It is the first of these elements that is at issue in the present case.

*100A "possessor” of a domestic animal has been interpreted to encompass an "owner” or "keeper.” Knowles v Mulder, 74 Mich 202; 41 NW 896 (1889); Kennett v Engle, 105 Mich 693; 63 NW 1009 (1895). However, plaintiffs do not here claim that Robert Thor is Chadwick’s owner, and that characterization clearly cannot be drawn simply from the status of temporary caretaker.5 Thus the focus of the present inquiry regarding strict liability is whether the temporary caretaker of a domestic animal can be considered a "keeper” as a matter of law.

In defining the term "keeper,” it is instructive to examine the rationale for imposing strict liability for harm done by domestic animals. Liability is not imposed because of a failure to restrain the animal, since the utmost care in that regard is not a defense to liability. Knowles, supra, p 206. Therefore, negligence analysis in this instance, even regarding the keeping of an abnormally dangerous animal, is improper. The burden of the loss under the common-law rule is instead allocated on an equitable basis to the party who has introduced the potential danger into the community, and either knows of the animal’s abnormal propensity or has had the animal long enough to be chargeable with notice of its dangerous habits. 3 Harper, James & Gray, Torts (2d ed), § 14.11, p 269; Prosser & Keeton, Torts (5th ed), § 76, pp 541-543. The liable party is deemed to have chosen to expose those around him to the abnormal danger posed by the animal he chooses to keep and must, as a consequence, shoulder any costs resulting from that danger.

*101In order for such allocation to be equitable, the liable party must have sufficient custody and sufficient control of the animal to assess whether a risk is presented by an abnormal propensity and to decide whether an animal should be brought into or remain in the community. It is this proprietary control, akin to ownership, that we hold must be present to deem a party a keeper, and potentially liable, under the common-law strict liability principle.

The thread of proprietary control can be found in Michigan cases that have assessed which parties were keepers under former dog bite statutes. While these statutes imposed liability on both owners and keepers without regard to whether the owner or keeper knew of the animal’s propensities,6 they provide useful guidance regarding the level of control necessary to impose the responsibilities of keeper status.

In Burnham v Strother, 66 Mich 519; 33 NW 410 (1887), the defendant, while acknowledging he was the owner of a dog, was held not to be its keeper because the dog had been enticed away from the defendant and kept by the plaintiff’s father. Id., p 520. The Court approved an instruction that liability for an injury inflicted by the dog was to be imposed on the basis of where the dog "really lived.” Id., p 521. The charge distinguished between visits by a dog and the situation in which the dog was living at the home of a person who had undertaken to control its actions.7 The *102plaintiff’s father had chosen to bring the animal to his property and expose the plaintiff to any danger the dog might pose. The father, therefore, became the keeper to whom the cost of the injury was to be fairly allocated.

Similarly, in Wetzel v Bolster, 169 Mich 43; 134 NW 1099 (1912), it was held to be proper to instruct the jury that the owner of a dog was not its keeper where the dog had been given to a third party to keep approximately six weeks before the plaintiff’s injury. It was the third party who was the keeper of the dog in this case because he had brought the animal to his premises and exposed those in his community to potential injury.

Finally, in Jenkinson v Coggins, 123 Mich 7; 81 NW 974 (1900), the defendant was found to be the keeper of a dog owned by her son where the son and dog lived on property that was under the defendant’s absolute control. This control of the premises where the dog lived was clear evidence that the defendant possessed a proprietary status akin to ownership necessary to be found a keeper.

We do not mean to suggest by our analysis that ownership of the property where the animal resides is dispositive in the determination of keeper status. A person may have sufficient control of a domestic animal that is cared for on the owner’s property to be subject to liability as a keeper.8

*103Possession of an animal sufficient to be found a keeper, however, "cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession.” Hancock v Finch, 126 Conn 121, 123; 9 A2d 811 (1939) (interpreting "keeper” under a statutory definition encompassing an owner, harborer, or party in possession of any dog). Thus, in McEvoy v Brown, 17 Ill App 2d 470; 150 NE2d 652 (1958), a grandmother who had fed and watered a puppy brought to her house by her grandsons, whom the grandmother had agreed to watch for the afternoon, was held not to be the animal’s keeper. The court affirmed that such a perfunctory act would not constitute keeping of the puppy, even though it was performed at the grandmother’s home. It was the responsibility of watching the grandchildren, and not the puppy, to which the grandmother had agreed. As a result, the grandmother was not barred, under Illinois’ dog bite statute, from recovery for injuries suffered in a fall caused by the puppy running between her legs.

We agree that the situation of Mr. Thor as a babysitter or temporary caretaker is most aptly characterized as akin to that of the grandmother in McEvoy. A babysitter does not "undertake] to control” the activities of an animal that may be present, in contrast to the father in Burnham, but rather agrees to supervise the home for a limited period of time. Temporary caretakers have no *104choice regarding whether the dangers an animal may present will be introduced into the community, nor have they agreed to shoulder responsibility for injuries it might inflict. They should therefore not be held strictly liable because the equitable basis for allocation of the cost of injury is absent in these circumstances.

We conclude that the temporary supervisory responsibility of the defendant in the present case did not provide him with sufficient proprietary control to attain keeper status. There is evidence to indicate that Mr. Thor had agreed to temporarily watch the children and manage the home, including supervising the family pet. However, given that one in the position of temporary caretaker normally has no control over the ultimate question whether keeping the animal is worth the risk of exposing the community to any abnormal danger, it would be inequitable to subject him to the common-law strict liability claim.

hi

The conclusion that there is no cause of action against a temporary caretaker of a domestic animal under a common-law strict liability theory does not preclude a negligence claim. 3 Harper, James & Gray, supra, § 14.11, pp 265-276; 3 Lee & Lindahl, Modern Tort Law (rev ed), § 37.06, p 326. The Restatement, § 518(b), subjects the possessor or harborer of a domestic animal with no scienter9 of a dangerous propensity to "liability for harm done by the animal if, but only if, he is negligent in failing to prevent the harm.” Other jurisdictions, citing the Restatement, have allowed negli*105gence actions to go forward in domestic animal injury cases. Medlyn v Armstrong, 49 Or App 829, 832; 621 P2d 81 (1980); Arnold v Laird, 94 Wash 2d 867, 871; 621 P2d 138 (1980).

Negligence actions in domestic animal injury cases have been recognized by the Court of Appeals, usually as an alternative theory of liability to a strict liability claim when scienter cannot be shown. Rickrode v Wistinghausen, 128 Mich App 240, 247-248; 340 NW2d 83 (1983); Papke v Tribbey, 68 Mich App 130, 135-136; 242 NW2d 38 (1976).10 We agree, and can find no reason why such a cause of action should not also be available when the defendant’s possession is of such a temporary nature that he cannot be held strictly liable as a keeper. The danger of misallocation of loss, as was presented by extending strict liability to the temporary caretaker, is not present. The factfinder is instead judging the action of the caretaker in light of the totality of the circumstances.

In assessing whether duty exists in a negligence action of this type, it is necessary to keep in mind the normal characteristics of the animal that caused the injury, as well as any abnormally dangerous characteristics of which the defendant has knowledge. It is the province of the court to determine if duty exists. Buczkowski v McKay, 441 Mich 96; 490 NW2d 330 (1992), Prosser & Keeton, supra, § 37, pp 235-238. Dogs, and some other domestic animals,11 are generally regarded as so *106unlikely to do substantial harm that their possessors have no duty to keep them under constant control.12 Consequently, a mere failure to do so would not constitute breach of any duty of care. 3 Restatement Torts, 2d, § 518, comments g and j, pp 31, 32. However, if the possessor of such an animal, including one in temporary possession, has knowledge of some dangerous propensity unique to the particular animal, or is aware that the animal is in such a situation that a danger of foreseeable harm might arise, the possessor has a legally recognized duty to control the animal to an extent reasonable to guard against that foreseeable danger. Id., comment k, pp 32-33. We therefore adopt the following rule from Arnold, supra, p 871, and hold that in a domestic animal injury case:

[A] negligence cause of action arises when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from the negligence. The amount of control required is that which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen.

Applying these principles to the instant case, viewed in a light most favorable to the plaintiffs, Blake v Brama, 343 Mich 27, 29; 72 NW2d 10 *107(1955), we find sufficient allegations from which a trier of fact could find Robert Thor negligent in fulfilling his duty of care in supervising Chadwick. The facts indicate that Robert Thor took temporary possession of Chadwick when he agreed to supervise the home while his son and daughter-in-law went shopping. As a result, Mr. Thor is subject to liability for harm done by Chadwick if he failed to exercise ordinary care to prevent any foreseeable harm, and such failure proximately caused the injury. The defendant would ordinarily be under no duty to constantly control Chadwick; however, plaintiffs have presented evidence that Robert Thor knew Chadwick had bitten a child before this incident. Such evidence may lead the trier of fact to find that Robert Thor had a duty and should have exercised greater control over Chadwick in order to satisfy his requisite standard of care. The factfinder, however, might also determine that putting Chadwick in the back bedroom fulfilled the defendant’s duty, even if he had scienter, or that the earlier incident provided no notice of dangerous propensities, because Chadwick had been provoked. Such questions are for the trier of fact, and cannot be resolved on motion for summary disposition.13

IV

In sum, we hold that the temporary caretaker of a domestic animal is not the animal’s owner or keeper, as a matter of law. We decline to extend the common-law strict liability claim to such a caretaker. However, one in temporary possession *108of a domestic animal may be liable for injuries caused by the animal under a negligence claim.

We reverse the decision of the Court of Appeals allowing the claim for strict liability, affirm the decision allowing the negligence claim, and remand to the trial court for proceedings consistent with this opinion.

Cavanagh, C.J., and Levin, Brickley, Riley, Griffin, and Mallett, JJ., concurred with Boyle, J.

VOIGT, Justice.

[T1] This is an appeal from an order granting summary judgment to the defendants in a dog bite case. The district court concluded that there were no genuine issues of material fact, that the defendants had no prior knowledge that their dog was vicious or possessed other dangerous propensities, and that the defendants, therefore, owed no duty to the plaintiff.

[¶2] We reverse.

ISSUES

2. Were the appellees entitled to summary judgment as a matter of law?

3. Should the "one free bite" rule be abrogated?

STANDARD OF REVIEW

[T3] Summary judgment motions are governed by W.R.C.P. 56. We review summary judgments under the following standard:

1. Was summary judgment improper because of the existence of genuine issues of material fact?

Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to judgment as a matter of law. Matlack v. Mountain West Farm Bureau Mutual Insurance Company, 2002 WY 60, ¶6, 44 P.3d 73, 16 (Wyo.2002). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. Id. We examine the record from the vantage point most favorable to the party who op*265posed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the ree-ord. Id. We evaluate the propriety of a summary judgment using the same standards and materials as the lower court used. Id. We do not accord deference to the district court's decisions on issues of law. Id.

TM. ex rel. Cox v. Executive Risk Indem., Inc., 2002 WY 179, ¶7, 59 P.3d 721, 724 (Wyo.2002).

FACTS

[T4] Clayton Voss and Mitsy Voss do business as Lazy TX Outfitters. Collective, ly, they are the appellees in this case. As part of their business, the Vosses had established the "Down's Fork" camp in the Wind River Mountains. Jim Borns (Borns) was employed by the Vosses. At the time of the incident that gave rise to this case, Borns had been camping with his children, Carmen and Sam, at Down's Fork for a week or two. Carmen, who was seven years old at the time, is the appellant herein.

[¶5] On July 18, 1999, the Vosses, along with their male Red Heeler dog, Tramp, arrived in camp. They were accompanied by another employee, Ron Penny (Penny). Clayton Voss testified that he had been in and out of the camp several times in the preceding days.1 Both of the Vosses testified that on at least two prior occasions in the camp, they had seen Carmen mistreating Tramp. Clayton Voss testified that twice he had seen Carmen hitting Tramp on the back, at least once with a stick, and that on both occasions he had told her "not to do that." Mitsy Voss testified that she had seen Carmen both kick the dog "in the rear end" and hit him on the face, and that she had told Carmen "that was not something we do." Penny testified similarly, indicating that on five or six occasions he had seen Carmen slap the dog and "tell him no." He further testified that, while he had said something to Carmen at least onee about her conduct, he doubted that he had mentioned the incidents to the Vosses.

[¶6] As proof that the Vosses had prior knowledge of Tramp's dangerous propensities, Carmen submitted the affidavit of her father, who described both an initial warning about Tramp from Clayton Voss and a later experience he had with Tramp:

3. That shortly after becoming employed by the defendants, Clayton Voss warned me to be careful around his dog, Tramp. Mr. Voss indicated that it might take his dog some time to become aceus-tomed to me. I understood my conversation with Mr. Voss to mean that I should be careful around his dog until I get acquainted with the dog. It was also my understanding that until the dog became accustomed to me, there was a chance that the dog might act aggressively toward me.

4. That about August 1998, I was attempting to unload some gear from the bed of Clayton Voss' pickup truck. The defendants' dog was standing on my gear in the bed of the truck. When I attempted to move the dog so that I could retrieve my gear, the dog spun around toward me and tried to bite my hand. Fortunately, after my conversation with Mr. Voss, I was prepared for such an event and I was able to move my hand before the dog could bite me. Mr. Voss was present at the time this happened.

[T7] Witness accounts of the biting incident, itself, differ. Carmen testified that she was standing at Tramp's side and was leaning down and petting him. She had just told Tramp that he could not go into the cook's tent when he suddenly growled, lunged at her, and bit her on the face. Carmen's father had to pry Tramp's jaws open to release his grip on her face. Penny testified that he saw the kids playing with a Frisbee and saw Tramp trying to play with them.2 Carmen was slapping Tramp on the head and telling him no when Tramp bit her. A third witness, Marette Nagel, who was also employed by the Vosses, testified that she saw Carmen scolding or reprimanding Tramp for about two full minutes before Tramp bit Carmen. Nagel described watching Carmen lean down *266and shake her finger in Tramp's face, but she did not see Carmen hit Tramp.

WYOMING'S DOG BITE LAW

[¶8] This Court has applied Wyoming's dog bite law several times in the past. In doing so, we have recognized three distinct theories of recovery: (1) the common law theory of strict liability of an owner who keeps an animal knowing of its dangerous propensities as articulated in Restatement (Second) Torts § 509 (1977);3 (2) the common law theory of negligence in the care and control of a domestic animal; and (8) a theory of negligence based on the violation of a duty created by statute or ordinance not to allow a domestic animal to run at large. Williams v. Johnson, 781 P.2d 922, 9283 (Wyo.1989): Because we have not always been careful to maintain the distinctions among these causes of action, especially as to the scienter element, and because we are being asked to modify the existing law, we will address each major case, so that we may first establish what the existing law is.

[¶9] In McCarthy v. Croker, 549 P.2d 323, 325 (Wyo.1976), dismissal was granted at the end of the plaintiff's case on the ground that the defendant's knowledge that his dog had nipped at a neighbor's horse did not create an inference that the plaintiff knew the dog had a propensity to bite humans. The allegation in the complaint had been that the defendant " 'wrongfully kept a dog, well knowing him to be of a ferocious, vicious and mischievous disposition and accustomed to attach [sic] and bite man kind [sic]! " Id. at 324. In affirming the dismissal, this Court agreed with the statement that " [the determinative factor in the present case is knowledge of vicious propensities. ...'" Id. While we did not, in support of that statement, specify the particular cause of action to which it applied, it is clear that the theory to which it applies is strict liability. In discussing the knowledge or scienter requirement, we cited to Prosser, Torts, § 76 at 501 (4th ed.1971), which contains a discussion of animals within a chapter entitled "Strict Liability." McCarthy, 549 P.2d at 325. In that discussion, Professor Prosser clearly states the difference between the two torts in this context: "And scienter is of course not required where any negligence can be shown in the keeping or control of the animal." Prosser, Torts, supra, § 76 at 502.

[¶10] A second case in the 1970'8, if not read carefully, may seem to blur the line between the strict liability and negligence causes of action. The plaintiff in Endresen v. Allen, 574 P.2d 1219, 1220-21 (Wyo.1978), was injured when his motorcycle struck the defendants' dog while the dog chased the motorcycle down the street. The plaintiff sought to recover under theories of common-law negligence and violation of an ordinance forbidding dogs running at large. The opinion reversing summary judgment in favor of the defendants was based on the negligence theory, but a discussion of the defendants prior knowledge of their dog's propensity to escape from their yard sounds much like a discussion of the sctenter element under striet lability. Id. at 1221-224.4 Indeed, the defendants cited McCarthy in support of their argument, causing us to comment that this "misses the point that we are not concerned with the vicious propensities of the dog but only whether defendants" could have foreseen the plaintiffs injury. Endresen, 574 P.2d at 1222. Unfortunately, the confusion among causes of action is heightened by the fact that, while later discussing whether both defendants could be liable when only one of them left the dog untied, we did state that "the common-law duty to protect against harmful propensities of the animal is one that is imposed upon the owners or keepers of the animal without regard to negligence except *267that there must be knowledge of the propensities." Id. at 1226. That, of course, is a statement of the strict liability cause of action. Since that cause of action was not raised in Endresen, the statement is, at most, obiter dictum.

[T11] Three years after Endresen, we decided Larsen v. City of Cheyenne, 626 P.2d 558 (Wyo.1981). The primary issue in Larsen was whether a city dog pound should be liable for releasing a dog known to be vicious. The action was founded in negligence, based upon the alleged violation of certain city ordinances. Id. at 560. Our affirmance of the summary judgment entered in favor of the defendant city was based upon the conclusion that the particular ordinances had not created a duty on the part of the city. Id. at 560-61. In reaching that conclusion, however, we noted that a duty on the part of the city to conduct the pound activities in a manner that would protect the general public was not just inferable from the ordinances, but could arise under a standard negligence theory:

Appellant's argument also pertains to a contention that there was a failure on the part of appellees to act reasonably under the circumstances. The question of reasonableness comes into play in a negligence action in connection with the violation of a duty. If there is no duty, the proposition is not reached. The elements of a negligence action are: a duty on the part of the defendant, failure to perform the duty, proximately causing damage to plaintiff. Danculovich v. Brown, Wyo., 593 P.2d 187 (1979).

Larsen, 626 P.2d at 560 n. 2. Finally, in a brief analysis of the strict liability theory of recovery, we also found that the city was neither the owner nor the keeper of the dog at the time of the biting incident. Id. at 560. As with Endresen, this interposing of a discussion of strict liability in the midst of a case brought in negligence did not help to keep the causes of action distinct.

[¶12] In Abelseth v. City of Gillette, 752 P.2d 4830, 481 (Wyo.1988), the plaintiff was bitten by a police dog and sued the city. This Court clearly indicated that strict Hability and negligence are separate theories of recovery in dog bite cases, and that an allegation of harboring a dog known to be dangerous is a claim under the former theory. Id. 'at 481-34. The plaintiffs negligence claim against the city was allowed to proceed, while dismissal of the strict liability claim under the Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-101 through 1-39-120 (Michie 1987), was affirmed. We held that use of the phrase "strict Hability" is not determinative of the nature of a claim; rather, the question is whether the complaint raises the elements of a cause of action under Restatement (Second) Torts, supra, § 509. Abelseth, 752 P.2d at 484.

[118] We previously herein cited Williams, 781 P.2d at 923, as recognizing the three distinet theories of recovery in dog bite cases in Wyoming. Unfortunately, rather than clarifying those theories of recovery, Williams continued to muddy the waters. The plaintiff in Williams was a mailman who was attacked by the defendants' dogs on a neighbor's porch. He was not bitten, but he injured his knee in trying to escape from the attack. Id. His complaint generally alleged liability but did not rely upon any particular theory of recovery. Id. That omission led to this Court's analysis of the three separate causes of action. To the extent that part of that analysis was wrong, it must now be overturned.

[¶14] In Williams, we correctly identified the two common law causes of action-strict lability and negligence.5 Id. However, we then went on to make the following mistaken statement as to the law:

Common to both of these causes of action are certain facts which must be put in issue to defeat defendant's summary judgment motion, ie., (1) the owner, (2) of an animal with a propensity for potentially harmful behavior, (8) must know of that propensity, and (4) such behavior must be the proximate cause of injury to the plaintiff. In this ease, appellees denied knowl*268edge of harmful propensities. Appellant claimed knowledge of dangerous propensities was unnecessary to a common law cause of action. Appellant therefore failed to assert facts, by affidavit or otherwise, which would place in issue appellees' knowledge of the- vicious nature of their dogs. This was fatal to his maintaining a cause of action under these common law theories. His suit was premised on these theories, and the district court, therefore, correctly granted appellees summary judgment motion.

Id. at 924. As pointed out by Justice Urbig-kit in his dissenting opinion in Williams, this formulation of the law is incorrect because "the requirement of knowledge of propensity is confined to a strict liability basis for asserted recovery." Id. at 927 (Urbigkit, J., dissenting). This is consistent with Professor Prosser's view of these torts, as cited above. The majority's requirement of the scienter element in the negligence claim was contrary to law.

[T15] The 1997 case of Turcq v. Shanahan, 950 P.2d 47 (Wyo.1997), once again clearly recognized the three separate causes of action. In Turcq, the plaintiff was an animal control officer who was severely bitten by the defendant's dog when she responded to a barking dog complaint. She had previously responded five times to similar complaints involving the same dog. Id. at 49-50. ' A strict liability claim was dismissed via summary judgment, and the case went to trial strictly as a negligence case. Id. at 50. For our present purposes, the most significant feature of Tureq is its application of standard negligence law:

By our decisions, the elements of a negligence claim are firmly. established as: 1) a duty owed by the defendant to the plaintiff; 2) a breach of that duty by the defendant; 3) the breach is the proximate cause; 4) of injuries to the plaintiff. Vasquez By and Through Vasquez v. Wal-Mart Stores, Inc., 918 P.2d 441, 448 (Wyo.1996); Downen v. Sinclair Oil Corp., 887 P.2d 515, 520 (Wyo.1994). f

Turcq, 950 P.2d at 51. Clearly, common law negligence in a dog bite case is no different than in any other case. In Turcq, as in Endresen, the key issue was the foreseeability of injury. Specifically, the issue was whether the defendant's failure to prevent her dog from barking was a proximate cause of the plaintiff's injuries. Turcq, 950 P.2d at 52. We must reiterate that it is important to distinguish between the analysis of knowledge of a dangerous propensity, which applies to strict liability cases, and the analysis of foreseeability of harm, which applies to negligence cases.

[T16] Our most recent precedent involving a dog bite is Roberts v. Klinkosh, 986 P.2d 158 (Wyo.1999). In Roberts, a tenant's social guest sued the tenant's landlord after the guest was bitten by another tenant's Pit Bull, Id. at 155. The plaintiff raised both strict liability and negligence claims. The defendant obtained summary judgment on the grounds that he had no duty toward the plaintiff because he had no knowledge of the dog's dangerousness, and because the attack took place at the tenant's doorstep, an area not under the landlord's control. Id. We affirmed the summary judgment as to the negligence claim through the application of standard landlord-tenant law. As to the strict lability claim, we concluded that neither the landlord's knowledge that the dog had previously growled at one person nor his knowledge that Pit Bulls, as a breed, are dangerous, was sufficient to create a duty in him to protect the social guest. Id. at 157.

[T17] Roberts is of limited precedential value for our present purposes because its holdings are stated in the context of landlord-tenant liability rather than in the context of an owner or keeper of a dog. Specifically, the discussion in Roberts about knowledge of a dangerous propensity focuses upon what a landlord must know about a tenant's dog before the landlord's failure to have the dog removed from the premises becomes a breach of a duty owed to a social guest. Furthermore, as with some of our earlier cases, neither the parties nor this Court maintained a clear line between the strict liability and negligence theories. Id. at 157. To the extent that Roberts may suggest that knowledge of dangerous propensities is an element that must be proved *269in a common law negligence case, it is in error and must be overruled.

[118] Before we attempt to discuss the parties' factual and legal contentions in the present case, it is necessary that we now summarize existing dog bite law in Wyoming. There are three theories of recovery: (1) common law negligence; (2) common law strict liability as articulated in Restatement (Second) Torts, supra, § 509; and (8) negligence based upon violation of a duty created by statute or ordinance. The elements of the common law negligence cause of action are the same as the elements of a standard negligence claim; that is, duty, breach, cause and resulting damage. This theory has often been described as negligence in the care and control of a domestic animal. Tureq, 950 P.2d at 52; Williams, 781 P.2d at 928. The nature of the duty is as follows:

Even in the absence of any known viciousness in a domestic animal, its owner is obliged to exercise over it a certain degree of care depending upon the kind and character of the particular animal concerned, the cireumstances in which it is placed, and the purposes for which it is employed or kept. The owner or keeper of a domestic animal is charged with knowledge of the natural propensities of animals of the particular class to which this animal belongs, and, if these propensities are of the kind that might cause injury he must exercise the care necessary to prevent such injuries as may be anticipated.

4 Am.Jur.2d Animals § 102 at 489 (1995). A concise statement of this duty is found in Restatement (Second) Torts, supra, § 518:

Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if,

(a) he intentionally causes the animal to do the harm, or

(b) he is negligent in failing to prevent the harm.

As in other negligence actions, the degree of care required is that which is reasonable under the cireumstances. Larsen, 626 P.2d at 560 n. 2; Slack v. Villari, 59 Md.App. 462, 476 A.2d 227, 281, cert. denied, 301 Md. 177, 482 A.2d 502 (1984).

[119] The distinguishing feature of strict liability is that a possessor of a domestic animal that he knows or has reason to know has a dangerous propensity is liable for harm done by the animal that results from that dangerous propensity, even if negligence cannot be proven. And the distinguishing feature of negligence based upon violation of a statute or ordinance is simply that the duty allegedly breached is a legislatively created duty rather than a duty recognized at common law. Williams, 781 P.2d at 923.

DISCUSSION

[¶20] We have concluded that the summary judgment granted to the Vosses in this case must be reversed. To begin with, the Vosses are wrong about the law, as is evidenced by three contentions in their appellate brief. First, the Vosses state that "be-ecause Appellées had no prior knowledge that their dog might react to Appellant's mistreatment, they were charged with no legal duty to protect Appellant from this unknown risk." Next, the Vosses contend that "[ble-cause Appellees possessed no scienter of Tramp's viciousness or propensity to cause harm, it was wholly unforeseeable that their dog would bite any human being, and consequently Appellees had no legal duty to protect Appellant Carmen Borns." Third, the Vosses contend that "[what Appellant fails to understand is that, under the common law negligence standard, a dog owner is not charged with a duty until he possesses scienter of his dog's dangerous propensity to cause harm." The first statement erroneously says, in effect, that if strict liability does not apply, there can be no negligence claim. The second statement fails to recognize the Endresen and Turcq distinction between knowledge of dangerous propensities under strict liability and foreseeability under negli-genee. And the third statement completely negates any distinction between negligence and strict liability. The summary judgment should not have been granted because it is based on these same erroneous conclusions.

*270[121] The second reason that this summary judgment must be reversed is that there are genuine issues of material fact related to both claims. As to the strict liability claim, the affidavit of Jim Borns sufficiently places at issue the question of whether Clayton Voss was or was not aware of Tramp's alleged "attack" upon Borns, especially because Borns testified that Voss specifically warned him about Tramp. The facts necessary to defeat summary judgment do not have to be conclusive or unopposed; it is enough that they are competent and material and there are sufficient specific facts to indicate the presence of a genuine issue of material fact. Blackmore v. Davis Oil Co., 671 P.2d 334, 386 (Wyo.1988); Cantonwine v. Fehling, 582 P.2d 592, 598 (Wyo.1978). As to the negligence claim, the evidence viewed in the light most favorable to Carmen suggests that the Vosses were aware of Tramp's unfriendly disposition, were aware of Carmen's repeated inappropriate interaction with Tramp, were aware that Carmen was in camp when Tramp was brought into camp, and were aware at the time of the attack that Carmen was at that moment mistreating Tramp, yet they did nothing to prevent Tramp from biting Carmen.

[122] The primary difficulty with the Vosses' position is their belief that the "one free bite rule" creates immunity from any liability for their dog's behavior absent knowledge of that first bite. In truth, the appellation "one free bite" is quite a misnomer, inasmuch as it-being the scienter element of the strict Hability cause of action-actually creates lability where it would not otherwise exist. The "one free bite" rule takes nothing away from the common law negligence theory of recovery. Consequent ly; if Carmen can prove that, under all the cireumstances, the Vosses violated their duty to her of reasonable care in the control of Tramp, liability may result even if they had no knowledge of Tramp's propensity to bite people, or indeed, even if Tramp had no such propensity.6 In the instant case, a jury could find that the Vosses did not do enough to control Tramp to prevent injury to Carmen. Summary judgments are not favored in negligence actions where the question is whether the defendant's conduct violated the required duty. Bancroft v. Jagusch, 611 P.2d 819, 821 (Wyo.1980).

[¥28] We have determined that this case must be reversed because summary judgment was improper. Genuine issues of material fact exist and the Vosses were not entitled to judgment as a matter of law. That leaves only the third issue presented-whether the "one free bite" rule should be abrogated. We will begin to answer that question by again quoting Professor Prosser:

[TThe often repeated statement that "every dog is entitled to one bite" is not and never has been the law. It is enough that the dog has manifested a vicious disposition, and a desire to attack or annoy people or other animals.

Prosser, Torts, supra, § 76 at 501-02 (footnote omitted). "One free bite" has simply become shorthand for the proposition that strict lability does not arise until the animal's owner has knowledge of a dangerous propensity in the animal. In other words, what we are really talking about when we talk about abrogating the "one free bite" rule is abrogating the scienter element of the strict liability cause of action. Such abrogation would result in true strict lHability-the owner of any dog that bit would be liable for the damage. Needless to say, such a change would fundamentally alter the gist of the tort, which presently is "the keeping of a thing known to be dangerous ...." Id. at 502.

This Court repeatedly has stated that the common law is dynamic, rather than static, and that it may be modified by judicial decision to meet the changing needs of society. Weaver v. Mitchell, 715 P.2d 1861, 1868 (Wyo.1986); McClellan v. Tottenhoff, 666 P.2d 408, 410-11 (Wyo.1988); Collins v. Memorial Hosp. of Sheridan County, 521 P.2d *2711339, 1341 (Wyo.1974). Modification of the common law, however, runs counter to the doctrine of stare decisis "Stare decisis" is Latin for "to stand by things decided." Black's Law Dictionary 1414 (Ith ed.1999). That eoncept is the basis of Anglo-American common law. Stare decisis is implemented through reliance on "precedent," the latter term referring to "[a] decided case that furnishes a basis for determining later cases involving similar facts or issues." Black's Law Dictionary, supra, at 1195.

[¶25] This Court has previously considered the tension between stare decisis and the needs of a changing society:

" 'Today's decision is supported, though not compelled, by the important doctrine of stare decisis, the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. That doctrine permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. While stare decisis is not an inexorable command, the carefal observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged "to bring its opinions into agreement with experience and with facts newly ascertained." ' "

State v. Carter, 714 P.2d 1217, 1228 (Wyo.1986) (Urbigkit, J., dissenting, with which Cardine, J. joined) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 398, 412, 52 S.Ct. 448, 449, 76 L.Ed. 815 (1982) (Brandeis, dissenting) and Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 624-25, 88 L.Ed.2d 598 (1986)). Similarly, in Worthington v. State, 598 P.2d 796, 804 (Wyo.1979), we declared that exercise of judicial restraint in this area, the law would lose its stability and certainty, which is the basis of a well-ordered society and the keystone of a stable and orderly system." In recent years, we have often cited Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991), for the proposition that stare decisis "furthers the ¢ "evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." ' "_ State ex rel. Wyoming Workers' Compensation Div. v. Barker, 978 P.2d 1156, 1161 (Wyo.1999) (quoting Goodrich v. Stobbe, 908 P.2d 416, 420 (Wyo.1995) and Cook v. State, 841 P.2d 1845, 1358 (Wyo.1992)).

[¶26] We have not, however, adhered blindly to the principles of stare decisis and applied precedent. We have also recognized the need for the common law to keep pace with the times:

" 'That court best serves the law which recognizes that the rules of law which grew up in a remote generation may in the fullness of experience be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary. Change of this character should not be left to the Legislature." "

Jivelekas v. City of Worland, 546 P.2d 419, 428 (Wyo.1976) (quoting Dwy v. Connecticut Co., 89 Conn. 74, 99, 92 A. 888, 891 (1915)). As often as we have cited Payne, we have also said that stare decisis is not a law, but a policy, and we should depart from precedent when necessary " ' "to vindicate plain, obvious principles of law and remedy continued injustice ...." ' " Barker, 978 P.2d at 1161 (quoting Goodrich, 908 P.2d at 420 and Jones v. State, 902 P.2d 686, 692-98 (Wyo.1995)); Dunnegan v. Laramie County Com'rs, 852 P.2d 1138, 1140 (Wyo.1993); Cook, 841 P.2d at 1858. Simply stated,

"Iwle can agree that a rule of law which is merely the product of judicial decision, born of the necessities of particular circumstance, is subject to judicial repudiation when the reasons which gave rise to *272its judicial adoption have failed or no longer exist ...."

JSivelekas, 546 P.2d at 431 (quoting Maffei v. Incorporated Town of Kemmerer, 80 Wyo. 33, 338 P.2d 808, 816 (1959), overruled on other grounds by Collins, 521 P.2d at 1844)).

[T27] Not surprisingly, Carmen urges us now to take the expansive view that we espoused in Weaver:

"* * * The main characteristic of the common law is its dynamism. It does not remain static. The common law is not a thing of chiseled marble to be left unchanged for centuries.

" 'Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from supplying principles of common law to new situations as the need arose. If this were not so, we must suceumb to a rule that a judge should let others "long dead and unaware of the problems of the age in which he lives, do his thinking for him." ...'"

Weaver, 715 P.2d at 1868 (quoting Lewis v. Wolf, 122 Ariz. 567, 596 P.2d 705, 706 (1979), overruled on other grounds by Ontiveros v. Borak, 186 Ariz. 500, 667 P.2d 200, 208 (1983)). Also not surprisingly, the Vosses argue to the contrary the important role of stare decisis, as set forth in Adkins v. Sky Blue, Inc., 701 P.2d 549, 551 (Wyo.1985):

The common law has served us well because it is flexible, able to grow and meet the requirements of changing conditions and a different society. There are times when change is necessary; but the doctrine of stare decisis is also important «in an organized society. Change, therefore, should occur slowly, deliberately after much experience, and if possible so as not to affect vested rights or things in the past.

[¶28] Several states have repudiated the scienter element in dog bite law. See, for example, Mulcahy v. Damron, 169 Ariz. 11, 816 P.2d 270 (1991); Stroop v. Day, 271 Mont. 314, 896 P.2d 489 (1995); Nickell v. Summer, 1997 OK 101, 948 P.2d 625 (Okla.1997) S.H. By and Through Robinson v. Bistryski, 923 P.2d 18376 (Utah 1996); State v. Bash, 180 Wash.2d 594, 925 P.2d 978 (1996); and Ward Miller, Annotation, Modern Status of Rule of Absolute or Strict Liability for Dogbite, 51 A.L.R.Ath 446, §§ 4, 7-10 (1987). While it is true that these states have abandoned the scienter element and have adopted a "pure" form of strict lability, it is also true that they did so by statute, and not by court decision. See, 4 Am.Jur.2d Animals, supra, § 101 at 438-89. Oklahoma's statute is a typical example of such a statute:

The owner or owners of any dog shall be liable for damages to the full amount of any damages sustained when his dog, without provocation, bites or injures any person while such person is in or on a place where he has a lawful right to be.

4 0.8.1991 § 42.1 (cited in Nickell, 948 P.2d at 627). Other statutes pointedly reject the scienter requirement:

Every person owning or keeping a dog shall be liable in damages for injury committed by such dog, and it shall not be necessary in any action brought therefor to allege or prove that such dog was of a vicious or mischievous disposition or that the owner or keeper thereof knew that it was vicious or mischievous ....

Utah Code Ann. § 18-1-1 (cited in S.H. By and Through Robinson, 923 P.2d at 1380); see also Mulcahy, 816 P.2d at 272 and Stroop, 896 P.2d at 441.

[¶29] Statistics indicate that 4.7 million people are bitten by dogs annually in this country, and that 800,000 of those victims require medical attention. Mary Randolph, Dog Law § 11/1 (4th ed.2001). In Larsen, 626 P.2d at 561, we acknowledged our awareness of the serious injuries and even death caused by dogs. Nevertheless, we concluded that "correctional action is a legislative matter," and we noted that in 1979 the state legislature had passed Wyo. Stat. Ann. § 11-31-801 (Cum.Supp.1980), which provided as follows:

"(e) Any dog attacking any person in a vicious manner may be destroyed and the *273owner or custodian of the dog may be fined not more than two hundred dollars ($200.00). Proof of the fact that the dog has bitten or attacked any person at any place where a person is legally entitled to be is evidence that the dog is vicious within the meaning of this act."

Larsen, 626 P.2d at 561 n. 8. This language remains in the statute today. Wyo. Stat. Ann. § 11-81-3801 (LexisNexis 2001). Clearly, the legislature has not seen fit to create a tort duty of pure strict liability beyond the common law rule. As we recognized in Larsen, one of the considerations when a court is asked to modify the common law is whether the constitutional separation of powers doe-trine requires that the matter be left to the legislature where the legislature has taken action. Worthington, 598 P.2d at 804.

[T30] In an appropriate case, the common law may be judicially modified to create a new tort duty. Andersen v. Two Dot Ranch, Inc., 2002 WY 105, ¶¶ 11-12, 44-45, 49 P.3d 1011, 1014, 1024-27 (Wyo.2002); Gates v. Richardson, 719 P.2d 193, 195-96 (Wyo.1986) " ' "Duty" is not sacrosanct in (Wyo.1986). ; 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' " Amdersen, 2002 WY 105, % 44, 49 P.3d at 1024 (quoting Gates, 719 P.2d at 195). Whether a duty exists is a question of law. Davis v. Black Hills Trucking, Inc., 929 P.2d 582, 534 (Wyo.1996). A duty may arise by contract, statute, common law, "or when the relationship of the parties is such that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff." Hamilton v. Natrona County Educ. Ass'n, 901 P.2d 381, 384 (Wyo.1995). The legal question to be answered by the court is

" * "Iwlhether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other-or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court." ...'"

Thomas By Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1803, 1807 (Wyo.1985) (quoting Prosser, Law of Torts, § 87 at 206 (4th ed.1971) and Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276, 1280 (Wyo.1983)).

[131] In deciding whether to adopt a particular tort duty, a court's focus must be much broader than just the case at hand:

"[Thhe courts have merely 'reacted to the situation in the way in which the great mass of mankind customarily react, and that as our ideas of human relations change the law as to duties changes with them. Various factors undoubtedly have been given conscious or unconscious weight, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and many others. Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists." Prosser & Keaton on Torts, § 58, pp. 357-859 (5th ed.1984).

"* * * The judge's function in a duty determination involves complex considerations of legal and social policies which will directly affect the essential determination of the limits to government protection. Consequently, * * * the imposition and seope of a legal duty is dependent not only on the factor of foreseeability ([Cunis v. Brennan ] 56 Ill.2d 872, 375, 308 N.E.2d 617) but involves other considerations, including the magnitude of the risk involved in defendant's conduct, the burden of requiring defendant to guard against that risk, and the consequences of placing that burden upon the defendant. [Citations.]" Nelson by Tatum v. Commonwealth Edison Company, 124 Ill.App.3d 655, 662, 80 Ill.Dec. 401, 465 N.E.2d 518, 519 (1984).

Mostert v. CBL & Assoc., 741 P.2d 1090, 1098 (Wyo.1987). In Gates, 719 P.2d at 196, we further detailed the factors to be considered:

*274Some of the key policy factors to be considered. are: (1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant's conduct and the injury suffered, (8) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved. Tarasoff v. Regents of University of California, 17 Cal.3d 425, 181 Cal.Rptr. 14, 551 P.2d 384, 342, 88 AL.R.3d 1166 (1976).

[T32] These discussions of duty have been in the context of a negligence cause of action, but we see no reason that the same principles would not apply to a cause of action for strict liability. In adopting strict products liability, this Court considered similar policy factors and found, in particular, that the risk of harm should fall on the person best able to prevent that harm. Ogle v. Caterpillar Tractor Co., 716 P.2d 834, 342-44 (Wyo.1986). Other factors, such as the extent of the burden on the defendant, the policy of preventing future harm, the magnitude of the risk, and the availability of insurance are equally applicable to strict Hability.

[¶33] According to one authority, twenty states have statutorily adopted some form of dog bite strict liability.7 To the contrary, only one state appears to have judicially abandoned the scienter element of the strict liability cause of action. In Hosseniopp By and Through Hossenlopp v. Cannon, 285 S.C. 367, 829 S.E.2d 488, 441 (1985), the Supreme Court of South Carolina stated the following rationale for its holding:

In 1978 in the case of McQuaig v. Brown, [270 S.C. 512, 242 S.E.2d 688 (1978)], the court alerted the bench and bar to the fact that the dog-bite law in this state was antiquated. See dissent in McQuatig.

The dog-bite law is of common law origin. It may be changed by common law mandate. The time has come when our rule must give way to the more commonly accepted rule of law indicated in other states by both case law and by statute.

When a child, as in this case, has been injured by the dog of another, the burden of damages, medical expenses, hospital, ete. must be paid by either the owner of the dog or the parents of the child. It is common knowledge that dogs have a tendency to bite. The owners know this and should be made to respond in damages when the dogs they keep do injuries to others regardless of whether the injury is a result of the first bite, the second or other bite.

Having made those pronouncements, the court adopted the following statement of law, which statement had its origin in a statutorily-based California jury instruction:

[The owner of any dog which bites a person while such person is on or in a public place or is lawfully on or in a private place, including the property of the owner of such dog, is liable for such damages as may be suffered by the person bitten regardless of whether or not the dog previously had been vicious, regardless of the owner's knowledge or lack of knowledge of any such viciousness, and regardless of whether or not the owner has been negligent in respect to the dog, provided, however, that if a person knowingly and voluntarily invites attack upon himself [herself], or if, when on the property of the dog owner, a person voluntarily, knowingly, and without reasonable necessity, exposes himself [herself] to the danger, the owner of the dog is not liable for the consequences....

Hossenlopp By and Through Hossenlopp, 329 S.E.2d at 441. Two of the five justices on the South Carolina Supreme Court concurred in the result in Hossenlopp, but disagreed with adoption of the California law. One justice argued that existing law should *275remain in effect "until the General Assembly sees fit to liberalize it." Id. at 442 (Harwell, J., concurring). The second justice contended that "[this case is not the proper vehicle for such a far-reaching change in the law." Id. (Gregory, J., concurring). Apparently, the South Carolina legislature agreed with Justice Harwell. In 1986, it passed S.C.Code Ann. § 47-3-110 (1987), which is a detailed strict liability statute.8 See Elmore v. Ramos, 827 S.C. 507, 489 S.E.2d 668, 664-65 (1997).9

[T{34] For several reasons, we conclude that, at least for this particular case at this particular time, the correct position is that taken by the dissenting justices in Hossen-lopp. We decline to abrogate the scienter element of common law strict liability in dog bite cases. To begin with, we continue to believe that it would be better for the matter to be addressed by the legislature, just as it has been in many other states. The legislature is a deliberative representative body, designed for policy debates, and designed for constituent input. As is evidenced by the cases and statutes cited herein, there are many ways to fashion a dog bite law. In some states, for instance, the statute applies only in cities and towns. See Stroop, 896 P.2d at 441 and Nickell, 948 P.2d at 627. Given Wyoming's vast rural areas and its numerous working ranch dogs, that is a feature our legislature might want to contemplate.

[¶35] The second reason that we have determined in this case not to create judicially a pure form of strict liability is that this is not a situation where the appellant is left without any remedy. There are three existing theories of recovery in dog bite cases and this case will be remanded for trial on two of those theories. The appellant will have her day in court.

[¶36] Finally, although both sides in this case have mentioned and discussed to some extent the Gates factors, we do not feel that there has been sufficient factual development concerning many of those factors. We do not know how many dogs there are in Wyoming. We do not know how many of those dogs are kept in cities and towns or how many of them are kept in rural areas. We do not know how many dog bites there are each year in Wyoming. We do not know the nature and extent of the injuries caused by dog bites in Wyoming. We do not know whether liability insurance is available, whether it covers both negligence and strict liability, or what it costs.

[¶37] We are not insensitive to the plight of dog bite victims who cannot prove negli-genee on the part of the dog's owner and who cannot prove the owner's prior knowledge of the dog's dangerousness. We are also mindful of the fact that the common law may be judicially modified under appropriate ciream-stances. But for all the reasons set forth above, we will not in this case abrogate the scienter element of strict liability.

CONCLUSION

[¶38] The summary judgment entered in this case must be reversed because there are *276genuine issues of material fact in regard to both causes of action and because the Vosses were not entitled to judgment as a matter of law.

[¶39] Reversed and remanded for further proceedings consistent with this opinion.

Mr. Chief Justice Day

delivered the opinion of the Court.

The parties appear here as in the trial court and will be so referred to or by name.

The plaintiff was a four-year-old child who, through his mother as next friend, brought suit against the de*490fendants. He alleged defendants owned and wrongfully harbored a coyote, a wild animal of vicious propensities, and that on May 22, 1960, the child was attacked and bitten by the coyote and seriously injured.

Trial to a jury resulted in a verdict and judgment for defendants, from which the plaintiff seeks reversal by writ of error.

In the trial of the case the testimony was not in any material aspect disputed. The Ottos admitted ownership of the animal for a period of about two years. They had fitted it with a collar and kept it on a chain about 15 ft. long. At the time of the attack on plaintiff, the coyote had recently been delivered of a litter and some of her puppies were still with her. Mr. Otto admitted that he gave one of the puppies to David to pet in the presence of the coyote.

Although the Ottos denied that they knew the coyote was vicious, they both testified that it was their custom not to let children approach it to pet it unless in their presence. Mrs. Otto testified that all of the neighborhood children had been warned not to go close to the coyote unless she or her husband were present. Mrs. Otto further testified that she worried about it and kept a very strong chain on the animal, and she did not tell the children that the coyote might hurt them but just warned the children to stay away unless she or her husband were present. Both were in the house and knew that David had been over for lunch with the Otto children and that all of the children were in the backyard and that David had a puppy to pet.

That the coyote attacked the boy is not disputed. An eye witness testified as to the viciousness of the attack, and the medical testimony established that lacerations of the forehead, eyelid, face, ears, and back of head were the result of the bites of the coyote. The injuries were quite extensive, leaving scars requiring at least two operations by a plastic surgeon.

The Ottos defended on the theory of the contributory *491negligence of this four-year-old. child and on the basis that they had no prior knowledge of the viciousness of the animal.

A motion by plaintiff for a directed verdict in his favor was denied, the court ruling that the question of negligence of defendants in keeping the wild animal was a question for the jury. The court also ruled that the matter of contributory negligence was a legitimate defense to be submited to the jury, and gave an instruction thereon.

Several grounds are assigned by plaintiff for reversal, but in view of our conclusion only one need be considered: Whether the denial of plaintiff’s motion for directed verdict and refusal to submit the cause to the jury on the question of damages alone was error.

The law is virtually universal that one who harbors a wild animal, which by its very nature is vicious and unpredictable, does so at his peril, and liability for injuries inflicted by such animal is absolute. The rule is well stated in 2 Am. Jur. 689, at page 725, as follows:

§43. In General. — The owner of animals ferae naturae or of beasts of a dangerous or vicious class or species, such as lions, tigers, or bears, is, as a general rule, liable under all circumstances for injuries done by them. This rule of liability is predicated upon the wrongful and unjustifiable conduct of the owner in keeping an animal of a vicious, and therefore dangerous nature, and it is not necessary to prove that he had knowledge of the vicious nature of a wild animal causing injury, as he is conclusively presumed to have had such knowledge. Although the owner had no particular notice that such an animal ever did any such mischief before the injury complained of, he is liable. If such an animal is not securely confined, it is plainly a public nuisance, and security must be assured under all circumstances. Since the gravamen of the action, in such cases, is the keeping of the animal, negligence is not, strictly speaking, an element of the owner’s liability. However, there is, perhaps, a pre*492sumption juris et de jure of negligence based upon the keeping, and in that sense only an action would rest upon negligence. Therefore, while any person has an undoubted right to keep a wild animal, and no one has a right to interfere with him in so doing, as a result thereof, he assumes the obligations of an insurer with respect thereto to the public generally. A person who keeps an animal ferae naturae keeps it at his peril; and if he loses control of it and it does damage, he is responsible.” (Emphasis supplied.)

In Colorado, by C.R.S. ’53, 62-6-2, a coyote has been defined as a predatory animal. There is little doubt that it is in fact a wild animal and that it has vicious propensities. The court recognized the rule of law by instructing the jury that the coyote “is a wild animal, under the law, and presumed to be vicious and that proof of knowledge on the part of the defendants was not required.” This is the law and is for the court, and there was nothing for the jury to determine except damages.

One of the defendants, Christeen Edstrom, was made a defendant because she was the landlord from whom the Ottos rented the premises in which they lived. Under what theory she may be held to be responsible is not apparent. The court dismissed the action as to her and that judgment was correct and is affirmed.

The judgment as to the Ottos is reversed and the cause remanded to the trial court with directions to grant a new trial on the issue of damages only.

Matthew M. Levy, J.

The plaintiffs are daughter and parent. The infant plaintiff with her father, the other plaintiff, were in attendance as paying patrons- at a performance at the Palace Theatre, operated by the defendant. One of the acts on stage was “ Bandy’s Greyhounds & Monkeys”. During the course of the performance, one of Bandy’s monkeys, riding on a greyhound, suddenly left his perch, went beyond the proscenium arch, and attacked the infant plaintiff, sitting in an orchestra loge. The plaintiffs sue for damages for the resulting personal injuries and medical expense. The relevant substantive allegations of the complaint are the defendant’s failure to take reasonable precautions to protect the plaintiff as a guest of the defendant at its theatre (negligence) and the harboring of a wild animal on the defendant’s premises without restraint (absolute liability).

The plaintiffs have moved before me for summary judgment (Rules Civ. Prac., rule 113). In opposition, the defendant in its answer has denied that the monkey involved was a wild animal, and submits affidavits setting forth the maimer in which the animals in the act were carefully trained and domesticated, that several of these shows had theretofore been given at the Palace Theatre — indeed, during a period of three years — and that nothing occurred which would acquaint the defendant or Bandy, as the proprietor of the act, with the fact that this monkey (of the rhesus variety common throughout India) had any vicious propensity, and, further, the care that was used during the performance in keeping the monkey securely on leash, and how surprising to the performing personnel and to the defendant’s staff was the monkey’s sudden and unexpected departure from the stage onto the loge, and the unforeseen attack upon the plaintiff.

These facts are set forth by the defendant at great length and would, of course, constitute the creation of a triable issue if the monkey in question is considered that kind of animal concerning which it is necessary for the plaintiff to establish scienter. On the other hand, all of these facts and circumstances would be *602legally immaterial if scienter is not a factor, in that the animal involved here is a wild animal, and it is on the latter contention that the plaintiffs proceed on this application to strike the defendant’s answer and for summary judgment directing a hearing solely for the assessment of damages. In aid of their motion, the plaintiffs do nothing more than to state and rely upon the undisputed fact that the incident occurred. They argue that if, as they contend, a monkey is inherently and unchangeably a wild animal, then the defendant had the monkey at the theatre at the defendant’s peril and, without proof of more, is liable to the plaintiff as an invitee (3 Restatement, Torts, § 507).

The plaintiffs’ insistence that the monkey is and cannot be aught else but a wild animal is supported solely by a reference to a professor of law for authority: “ A distinction has been made between animals which, by reason of their species, are by nature ferocious, mischievous or intractable, and those of a species normally harmless. In the first category are lions and tigers, bears, elephants, wolves and monkeys, and other similar animals. No individual of such a species, however domesticated, can ever be regarded as safe, and liability does not rest upon any experience with the particular animal. In the second class are cattle, sheep, horses, dogs and cats, and other creatures regarded as usually harmless. As to these, it must be shown that the defendant knew, or had reason to know, of a dangerous propensity in the one animal in question.” (Prosser, Law of Torts [2d ed.], § 57, p. 323.) On the other hand, the defendant urges, with equal vehemence, that, unlike a tiger and a wolf, a monkey is not impervious to being domesticated, and in support of its case, the defendant cites as authority a compendium of the law which states that “ an animal, although classed as ferae naturae, is susceptible of substantial domestication, as the bee, deer, and monkey ” and that, “ the owner is not liable in the absence of proof of negligence in the manner of keeping it, or of proof that it was of a vicious disposition, and was kept after the owner had knowledge thereof” (3 C. J., Animals, § 317, p. 88; see 3 C. J. S., Animals, § 144, p. 1246).

In Spring Co. v. Edgar (99 U. S. 645), a case arising in New York State, the court stated (p. 653) that certain wild animals may be domesticated so as to be classed in respect to the liability of the owner with the class known as tame or domestic animals. In that case a male deer was involved, but the point is well taken if, as a matter of fact, the monkey is classifiable as an animal capable of being domesticated to the indicated degree. That, it seems to me, has not yet risen — at least in the State of New York — to an irrefragable presumption.

*603It lias not been suggested by the plaintiffs in so many words that I take judicial notice of the claimed vicious and refractory habits of the monkey (cf. Mangrelli v. Italian Line, 208 Misc. 685, 688). But that is what, in substance, its submission on this application comes down to. In any case, were I to assume to endeavor to proceed upon the doctrine of judicial notice, I could not say that the propensities of the monkey are of such “ generalized knowledge as are so notorious as not to be the subject of reasonable dispute ” (Model Code of Evidence, rule 801). No scientific data were presented to support the taking of judicial notice, one way or the other. As I have said, legal authorities alone have been submitted — and they are in disagreement. In my view, judicial notice of such a matter must be bottomed upon more universal acceptance and based upon sterner stuff.

‘ ‘ Courts are found noticing, from time to time, a varied array of unquestionable facts, ranging throughout the data of commerce, industry, history and natural science. It is unprofitable, as well as impracticable, to seek to connect these rulings by generalities and distinctions; for the notoriousness of a truth varies much with differences of period and of place. It is even erroneous, in many if not in most instances, to regard them as precedents.” (9 Wigmore, Evidence [3d ed.], § 2580, pp. 571-572.) In any event, in view of the absence of legal precedent in this State — and, indeed, adequate judicial authority elsewhere — I am of the opinion that the testimony of an expert in the science of zoology would be more helpful in resolving the issue of fact than the citations of texts and digests on the law, however valuable these may be in other respects.

I hold that whether a monkey of the rhesus species imported from India is a wild animal or a mild one, and if the former, whether it may be trained to tameness is a question of fact. This is sufficient, on the defendant’s behalf, to present the issue requiring a trial as to liability. And I hold, too, that it is a question arising upon the present complaint, although the defendant — mistakenly, in my view — urges that the plaintiffs did not allege that the animal was savage, mischievous or ferocious. For, in paragraph 8 of the complaint, it is stated that the animal in question is a monkey, and in paragraph 9 the phrase used, “ a wild animal ”, is referable to the monkey. This is sufficient, on the plaintiffs’ behalf, to present the issue as to absolute liability.

The plaintiffs’ motion for summary judgment is denied, and an order to that effect has been signed and entered.