4 Negligence: the Elements of a Prima Facie Case 4 Negligence: the Elements of a Prima Facie Case

4.1 A Prima Facie Case 4.1 A Prima Facie Case

4.1.1 Pastuszek v. Murphy Plywood Corp. ("The Prima Facie Case, Case") 4.1.1 Pastuszek v. Murphy Plywood Corp. ("The Prima Facie Case, Case")

How does a plaintiff prove a prima facie case of negligence? What happens if she doesn't?

Superior Court of Pennsylvania

219 Pa. Super. 59

Appeal, No. 233

1971-06-22

Pastuszek, Appellant, v. Murphy Plywood Corp.

*60Argued March 19,1971.

Before Wright, P. J., Watkins, Montgomery, Jacobs, Spaulding, and Cercone, JJ.' (Hoeeman, J., absent).

Michael M. Goss, with him Weinstein <£• Bobrin, for appellant.

Albert L. BrichUn, Roger S. Wolfe, David J. Griffith and Edward B. Joseph, with them E. Dyson Her-ting, Bennett, BrichUn <& SaUtsburg, Liebert, Harvey, Herting, Short é Lavin, and KaUner and Joseph, for appellees.

*61June 22, 1971:

Opinion by

Watkins, J.,

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

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

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

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

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

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

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

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

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

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

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

Order reversed and a new trial is granted.

4.2 Duty to Meet the Standard of a Reasonable Person 4.2 Duty to Meet the Standard of a Reasonable Person

4.2.1 Analyzing the Standard of a Reasonable Person 4.2.1 Analyzing the Standard of a Reasonable Person

4.2.1.1 Vaughn v. Menlove ("The Hayrick Case") 4.2.1.1 Vaughn v. Menlove ("The Hayrick Case")

Does the standard of reasonable care require different things of different people, depending on how careful or how intelligent they are?

Vaughan v. Menlove

[] 132 Eng. Rep. 490

VAUGHAN

MENLOVE.

Jan. 23, 1837.

[S. C. 4 Scott, 244; 3 Hodges, 51; 6 L.J. C.P. 92; 1 Jur. 215: at Nisi Prius, 7 Car. & P. 525.]

An action lies against a party for so negligently constructing a hay-rick on the extremity of his land, that in consequence of its spontaneous ignition, his neighbour's house is burnt down.—And upon pleas of not guilty, and that there was no negligence, held, that it was properly left to the jury to say whether the Defendant had been guilty of gross negligence, viewing his conduct with reference to the caution that a prudent man would have observed.

The declaration stated, that before and at the time of the grievance and injury, hereinafter mentioned, certain premises, to wit, two cottages with the appurtenances situate in the county of Salop, were respectively in the respective possessions and occupations of certain persons as tenants thereof to the Plaintiff, to wit, one thereof in the possession and occupation of one Thomas Ruscoe as tenant thereof to the Plaintiff, the reversion of and in the same with the appurtenances then belonging to the Plaintiff, and the other thereof in the possession and occupation of one Thomas Bickley as tenant thereof to the Plaintiff, the reversion of and in the same with the appurtenances then belonging to the Plaintiff: that the Defendant was then possessed of a certain close near to the said cottages, and of certain buildings of wood and thatch, [132 Eng. Rep. 491] also near to the said cottages; and that the Defendant was then also possessed of a certain rick or stack of hay before then heaped, stacked, or put together, and then standing, and being in and upon the said close of the Defendant. That on the 1st of August 1835, while the said cottages so were in the occupation of the said tenants, and while the reversion thereof respectively so belonged to the Plaintiff' as aforesaid, the said rick or stack of hay of the Defendant was liable and likely to ignite, take fire, and break out into a flame, and there had appeared, and were just grounds to apprehend and believe that the same would ignite, take fire, and break out into a flame; and by reason of such liability, and of the state and condition of the said rick or stack of hay, the same then was and continued dangerous to the said cottages; of which said several pre [3 Bing (N. C.) 469] mises the Defendant then had notice: yet the Defendant well knowing the premises, but not regarding his duty in that behalf, on, &c., and from thence until and upon a certain day, to wit, on, &c. wrongfully negligently, and improperly, kept and continued the said rick or stack of hay, so likely and liable to ignite and take fire, and in a state and condition dangerous to the said cottages, although he could, and might, and ought to have remove and altered the same, so as to prevent the same from being and continuing so dangerous as aforesaid; and by reason thereof the said cottages for a long time, to wit, during all the time aforesaid, were in great danger of being consumed by fire. That by reason of the premises, and of the carelessness, negligence, and improper conduct of the Defendant, in so keeping and continuing the said rick or stack, in a state or condition so dangerous as aforesaid, and so liable and likely to ignite and take fire and break out into flame, on, &c., and while the said cottages so were occupied as aforesaid, and the reversion thereof respectively so belonged to the Plaintiff; the said rick or stack of hay of the Defendant, standing in the close of the Defendant, and near the said c: ottages, did ignite, take fire, and break out into flame, and by fire and flame thence issuing and arising, the said standing of the Defendant so being of wood and thatch as aforesaid, and so being near to the said rick or stack as aforesaid, were set on fire; and thereby and by reason of the carelessness, negligence, and improper conduct of the Defendant, in so keeping and continuing the said rick or stack in such condition as aforesaid, fire and flame so, occasioned as aforesaid by the igniting and breaking out into flame, of the said rick or stack, was thereupon then communicated unto the said cottages in which the Plaintiff was interested as aforesaid, which were thereby then respectively set on fire, and then, to wit on, &c., by reason of such [3 Bing (N. C.) 470] carelessness, negligence, and improper conduct of the Defendent in so continuing the said rick or stack in such a dangerous condition as aforesaid, in manner aforesaid, were consumed, damaged, and wholly destroyed, the cottages being of great value, to wit, the value of 5001. And by means of the premises, the Plaintiff was greatly and permanently injured in his said reversionary estate and interest of and in each of them; to the Plaintiff's damage of 5001.

The Defendant pleaded, first, not guilty. Secondly, that the said rick or stack of hay was not likely to ignite, take fire, and break out into flame; nor was the same by reason of such liability, and of the state or condition of the said rick and stack of hay, dangerous to the said cottages; nor had the Defendant notice of the said premises, in manner and form as the Plaintiff had in and by his declaration in that behalf alleged. Thirdly, that the Defendant did not, well knowing the premises in the declaration in that behalf mentioned, wrongfully, negligently, or improperly, keep or continue the said rick or stack of hay, in a state and condition dangerous to the said cottages. Fourthly, that the said rick or stack of hay, did not by reason of the carelessness, negligence and improper conduct of the Defendant in that behalf, ignite, take fire, and break out in flame. And fifthly, that the said cottages were not consumed, damaged, and destroyed by reason of the carelessness, negligence, and improper conduct of the Defendant.

[] At the trial it appeared that the rick in question had been made by the Defendant near the boundary of his own premises; that the hay was in such and state when put together, as to give rise to discussions on the probability of fire: that though there were conflicting opinions on the subject, yetduring a period of five weeks, the Defendant was repeatedly warned of his [3 Bing (N. C.) 471]peril; that his stock was insured; and that upon one Occasion, being advised to take the rick down to avoid all danger, he said “he would chance it.” He made an aperture or chimney through the rick; but in spite, or perhaps in consequence of this precaution, the rick at length burst into flames from the spontaneous heating of its materials; the flames communicated to [132 Eng. Rep. 492] the Defendant's barn and stables, and thence to the Plaintiff's cottages, which were entirely destroyed.

Patteson J. before whom the cause was tried, told the jury that the question for them to consider, was, whether the fire had been occasioned by gross negligence on the part of the Defendant; adding, that he was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances.

A verdict having been found for the Plaintiff, a rule [“Rule nisi” is a court order that has no force until a particular condition has been met. In Vaughan, the order for a new trial was conditioned upon a “showing of cause”; an explanation by the moving party which would justify the need for a new trial. Cause was shown by the defendant’s argument that he was entitled to a bona fide standard.] nisi for a new trial was obtained, on the ground that the jury should have been directed to consider, not, whether the Defendant had been guilty of gross negligence with reference to the standard of ordinary prudence, a standard too uncertain to afford any criterion; but whether he had acted bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest order of intelligence. The action under such circumstances, was of the first impression.

Talfourd Serjt. and Whately, shewed cause.

The pleas having expressly raised issues on the negligence of the Defendant, the learned Judge could not do otherwise than leave that question to the jury. The declaration alleges that the Defendant knew of the dangerous state of the rick, and yet negligently and improperly allowed it to stand. The plea of not guilty, therefore, puts in issue the scienter, it being of the sub [Bing (N. C.) 472] stance of the issue; Thomas v. Morgan (2 Cr. M. & U. 496). And the action, though new in specie, is founded on a principle fully established, that a man must so use his own property as not to injure that of others. On the same circuit a defendant was sued a few years ago, for burning weeds so near the extremity of his own land as to set fire to and destroy his neighbors’ wood. The plaintiff recovered damages, and no motion was made to set aside the verdict. Then, there were no means of estimating the defendant's negligence, except by taking as a standard, the conduct of a man of ordinary prudence: that has been the rule always laid clown, and there is no other that would not be open to much greater uncertainties.

R V. Richards, in support of the rule.

First, there was no duty imposed on the Defendant, as there is on carriers or other bailees, under an implied contract, to be responsible for the exercise of any given degree of prudence: the Defendant had a right to place his stack as near to the extremity of his own land as he pleased; Wyatt v. Harrison (3 B. & Adol. 871): under that right, and subject to no contract, he can only be called on to act bona fide to the best of his judgment: if he has clone that, it is a contradiction in terms, to inquire whether or not he has been guilty of gross negligence. At all events what would have been gross negligence ought to be estimated by the faculties of the individual, and not by those of other men. The measure of prudence varies so with the varying faculties of men, that it is impossible to say what is gross negligence with reference to the standard of what is called ordinary prudence. In Crook v. Jadis (5 B. & Adol. 910), Patteson J. says, "I never could understand [Bing (N. C.) 473]what is meant by parties taking a bill under circumstances which ought to have excited the suspicion of a prudent man:" and Taunton J., “I cannot estimate the degree of care which a prudent man should take.”

In Foster v. Pearson too, (1 C. M. & H. 855) it appears that the rule which called on persons taking negotiable instruments to act with the circumspection of a prudent man, has at length been abandoned. There, the judge left it to the jury to say whether the holder of bills took them with due care and caution in the ordinary course of business; and upon a motion to set aside a verdict for the plaintiff, the Court said: “Of the mode in which the question was left, the defendant has certainly no right to complain; but, if the verdict had been in his favour, it would have become necessary to consider whether the learned Judge was correct in adopting the rule first laid down by the Court of Common Pleas, in the case of Snow v. Peacock (3 Bingh. 406), and which was founded upon the dicta, rather than the decision, of the judges of the King's Bench in the case of Gill v. Cubitt (5 D. & R. 324. 3 B. & C. 466); more especially since the opinion of the latter court has been so strongly intimated in the late cases of Crook v. Jadis (3 N. & M. 257) and Backhouse v. Harrison (ibid. 188). The rule of law was long considered as being firmly established, that the holder of bills of exchange indorsed in blank or other negotiable securities transferable by delivery, could give a title which he himself did not possess to a bona fide holder for value; and it may well be questioned whether it has been wisely departed from in the case to which reference has been made, and other subsequent cases in which care and caution in the taker of [132 Eng. Rep. 493] such securities has been treated as essential to the validity of his title, besides, and independently of, honesty of purpose.”

[] [Bing (N. C.) 474] TINDAL C.J.

I agree that this is a case primæ impressionis; but I feel no difficulty in applying to it the principles of law as laid down in other cases of a similar kind. [] Undoubtedly this is not a case of contract, such as abailment or the like where the bailee is responsible in consequence of the remuneration he is to receive: but there is a rule of law which says you must so enjoy your own property as not to injure that of another; and according to that rule the Defendant is liable for the consequence of his own neglect: and though the Defendant did not himself light the fire, yet mediately, he is as much the cause of it as if he had himself put a candle to the rick ; for it is well known that hay will ferment and take fire if it be not carefully stacked. It has been decided that if an occupier burns weeds so near the boundary of his own land that damage ensues to the property of his neighbour, he is liable to an action for the amount of injury done, unless the accident were occasioned by a sudden blast which he could not forsee: Turbervill v. Stamp (1 Salk. 13). But [] put the case of a chemist making experiments with ingredients, singly innocent, but when combined, liable to ignite; if he leaves them together, and injury is t hereby occasioned to the property of his neighbour, can anyone doubt that an action on the case would lie?

It is contended, however, that the learned Judge was wrong in leaving this to the jury as a case of gross negligence, and that the question of negligence was so mixed up with reference to what would be the conduct of a man of ordinary prudence that the jury might have thought the latter the rule by which they were to decide; that such a rule would he too uncertain to act upon; and that the question ought to have been whether the Defendant had acted honestly and bona fide to the best of his own judgment. That, [Bing (N. C.) 475]however, would leave so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various: and though it has been urged that the care which a prudent man would take, is not an intelligible proposition as a rule of law , yet such has always been the rule adopted in cases of bailment, as laid down in Coggs. v. Bernard (2 Ld. Raym. 909). Though in some cases a greater degree of care is exacted than in others, yet in “the second sort of bailment, viz. commodatum or lending gratis, the borrower is bound to the strictest care and diligence to keep the goods so as to restore them hack again to the lender; because the bailee has a benefit by the use of them, so as if the bailee he guilty of the least neglect he will be answerable; as if a man should lend another a horse to go westward, or for a month; if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him: but if he or his servant leave the house or stable doors open and the thieves take the opportunity of that, and steal the horse, he will be chargeable, because the neglect gave the thieves the occasion to steal the horse.” [] The care taken by a prudent man has always been the rule laid down; and as to the supposed difficulty of applying it, a jury has always been able to say, whether, taking that rule as their guide, there has been negligence on the occasion in question.

Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe. [Bing (N. C.) 476] That was in substance the criterion presented to the jury in this case, and therefore the present rule must be discharged.

PARK J.

I entirely concur in what has fallen from his Lordship. Although the facts in this case are new in specie, they fall within a principle long established, that a man must so use his own property as not to injure that of others. In Tubervill v. Stamp (1 Salk. 13), which was “an action on the case upon the custom of the realm, quare negligenter custodivit ignem suum in clauso suo, ita quod per flammas blade Quer. in quodam clauso ipsius Quer. combusta fuerunt; after verdict pro Quer. it was objected that the custom extended only to fire in his house, or curtilage (like goods of guests) which were in his power: Non alloc. For the fire in his field was his fire as well as that in his house; he made it, and must see that it did no harm, and must answer the damage if he did. Every man must use his own so as not to hurt another: but if a sudden storm had risen which he could not stop, it was matter of evidence, and he should have shewn it. And Holt, and Rokesby, and Eyre were against the [132 Eng. Rep.494] opinion of Turton, who went upon the difference between fire in a house which was in a man's custody and power, and fire in a field which was not properly so; and that it would discourage husbandry, it being usual for farmers to burn stubble, &c. But the Plaintiff had judgment according to the opinion of the other three." That case, in its principles, applies closely to the present.

As to the direction of the learned Judge, it was perfectly correct. Under the circumstances of the case it was proper to leave it to the jury whether with reference to the caution which would have been observed by [Bing (N. C.) 477]a man of ordinary prudence, the Defendant had not been guilty of gross negligence. After he had been warned repeatedly during five weeks as to the consequences likely to happen, there is no colour for altering the verdict, unless it were to increase the damages.

[] GASELEE J. concurred in discharging the rule.

VAUGHAN J.

The principle on which this action proceeds, is by no means new. It has been urged that the Defendant in such a case takes no duty on himself; but I do not agree in that position: every one takes upon himself the duty of so dealing with his own property as not to injure the property of others. It was, if any thing, too favourable to the Defendant to leave it to the jury whether he had been guilty of gross negligence; for when the Defendant upon being warned as to the consequences likely to ensue from the condition of the rick, said, "he would chance it," it was manifest he adverted to his interest in the insurance office. The conduct of a prudent man has always been the criterion for the jury in such cases: but it is by no means confined to them. In insurance cases, where a captain has sold his vessel after damage too extensive for repairs, the question has always been, whether he had pursued the course which a prudent man would have pursued under the same circumstance. Here, there was not a single witness whose testimony did not go to establish gross negligence in the Defendant. He had repeated warnings of what was likely to occur, and the whole calamity was occasioned by his procrastination.

[] Rule discharged.

4.2.1.2 Stewart v. Motts ("The Gasoline Pouring Case") 4.2.1.2 Stewart v. Motts ("The Gasoline Pouring Case")

Supreme Court of Pennsylvania

539 Pa. 596, 654 A.2d 535

1995-02-15

654 A.2d 535

Jonathon STEWART, Appellant, v. Martin MOTTS, II, t/d/b/a Mott’s Radiator, Appellee.

Supreme Court of Pennsylvania.

Argued Dec. 8, 1994.

Decided Feb. 15, 1995.

*599Ronald K. Mishkin, for J. Stewart.

William G. Ross, G. Christopher Parrish, Marvin O. Schwartz, for M. Motts.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

MONTEMURO, Justice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. at 158-59.

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

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

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

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

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

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

ZAPPALA, J., concurs in the result.

MONTEMURO, J., is sitting by designation.

. We also note that language suggesting a standard of "extraordinary care" can be found in Matulevich v. Matulevich, 345 Pa.Super. 507, 498 A.2d 939 (1985). In Matulevich, the Superior Court held, "[w]e agree with the lower court that the handling of firearms ... is an activity ■ requiring extraordinary care." Id. at 511, 498 A.2d at 941. However, the issue before the court in Matulevich was whether the trial court erred in not instructing the jury that a possessor of a gun was strictly liable for any injury he caused. The Superior Court rejected the argument that the law of strict liability applied and affirmed the trial court's instruction that the standard was one of “extraordinary care." Thus, the issue of whether the proper standard was reasonable care or extraordinary care was not argued before the court nor questioned by any of the parties. Therefore, this case properly stands for the proposition that accidents involving firearms are to be governed not by strict liability principles, but by negligence principles. This case did not establish "extraordinary care” as the proper standard. Rather, it merely accepted arguendo the standard applied by the trial court and unquestioned by the parties as the correct standard.

4.2.1.3 Myhaver v. Knutson ("The Emergency Swerve Case") 4.2.1.3 Myhaver v. Knutson ("The Emergency Swerve Case")

What is the sudden emergency doctrine/instruction? When does this court think it should be given (look for the elements), and what are the risks of giving it?

942 P.2d 445

Bruce P. MYHAVER and Barbara A. Myhaver, husband and wife, Plaintiffs/Appellants/Cross-Appellees. v. Elmo G. KNUTSON and Lois Knutson, husband and wife, Defendants/Ap-pellees/Cross-Appellants.

No. CV-96-0400-PR.

Supreme Court of Arizona, En Banc.

July 15, 1997.

David Brnilovich, and Treon, Strick, Lucia & Aguirre, P.A. by Arthur G. Newman, Jr., Pheonix, for Plaintiffs/Appellants/Cross-Ap-pellees.

Steven J. Wells & Associates by Edwin R. Roberts William F. Begley, Tempe, for Defendants/Appellees/Cross-Appellants.

Bury, Moeller, Humphrey & O’Meara by Andrew J. Petersen, Tucson, for Amicus Curiae Arizona Association of Defense Counsel.

*287OPINION

FELDMAN, Justice.

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

FACTS AND PROCEDURAL HISTORY

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

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

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

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

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

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

RAJI (Civil) 2d Negligence 6.

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

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

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

DISCUSSION

A. The sudden emergency doctrine

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Resolution

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

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

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

CONCLUSION

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

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

ZLAKET, Chief Justice,

specially concurring.

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

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

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

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

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

4.2.1.4 Salem v. Saleh ("The Drag Race Shootout Case") 4.2.1.4 Salem v. Saleh ("The Drag Race Shootout Case")

What does this court and the trial court agree on? What do they disagree on? How is this case different than Mayhaver v. Knutson?

2014 WL 5151953

Only the Westlaw citation is currently available.

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

UNPUBLISHED

Court of Appeals of Michigan.

Hasem SALEM, Plaintiff–Appellant,

Saleh SALEH, Defendant–Appellee.

Docket No. 316464.

Oct. 14, 2014.

Wayne Circuit Court; LC No. 11–012076–NI.

Before: OWENS, P.J., and JANSEN and O'CONNELL, JJ.

Opinion

PER CURIAM.

*1 In this automobile negligence action, plaintiff appeals by right the trial court's order granting summary disposition in favor of defendant. We reverse and remand for further proceedings consistent with this opinion.

This case arises out of injuries sustained by plaintiff, who was a backseat passenger in a car driven by defendant. Abdulfattah Saleh (Abdulfattah),¹ Amran Najy (the decedent),² and Fayez Mosed were also passengers in the car. As defendant's car was leaving a drag-racing area, a gunshot rang out. The decedent said, “I just got shot.” The group, collectively “freaking out” and “in a really big panic,” made the decision to drive directly to the hospital. By all accounts, defendant was vastly exceeding the speed limit. Estimates of the car's speed varied between 90 and 160 miles per hour. There was no traffic on the roads due to the early morning hour, but as defendant's car got within 300 feet of Henry Ford Hospital, it hit a pothole and rolled over “eight to 10 times.” The medical examiner determined that the cause of the decedent's death was the gunshot wound.

Plaintiff filed this action seeking damages for the injuries he sustained and his corresponding lost wages. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that any negligence he committed should be excused because he was confronted by a sudden emergency. In particular, defendant asserted that his conduct should be excused under the sudden-emergency doctrine because he was responding to a medical emergency and speeding to the hospital in an effort to save the decedent's life. In response, plaintiff argued that because defendant took time after the shooting to stop the car and assess the condition of the decedent, and because there was no longer any danger from the shooter, the sudden-emergency doctrine should not operate to bar defendant's liability. The trial court agreed with defendant, remarking, “[I]f there's any case, the poster child, if you will, for sudden emergency, it's this case.” The court granted defendant's motion for summary disposition on this ground.

On appeal, plaintiff argues that the trial court erred by granting defendant's motion for summary disposition and dismissing his negligence claim. Specifically, plaintiff contends that the court erroneously applied the sudden-emergency doctrine. We agree.

We review de novo the trial court's grant of summary disposition under MCR 2.116(C)(10). Spiek v. Dep't of Transportation, 456 Mich. 331, 337; 572 NW2d 201 (1998). A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Spiek, 456 Mich. at 337. “The pleadings, affidavits, depositions, admissions, and other admissible documentary evidence submitted by the parties must be considered in the light most favorable to the nonmoving party.” Kennedy v. Great Atlantic & Pacific Tea Co, 274 Mich.App 710, 712; 737 NW2d 179 (2007). “Summary disposition is proper under MCR 2.116(C)(10) if the affidavits and other documentary evidence show that there is no genuine issue concerning any material fact and that the moving party is entitled to judgment as a matter of law.” Kennedy, 274 Mich.App 712.

*2 Whether a particular defendant acted reasonably when faced with a sudden emergency is generally a question of fact for the jury. White v. Taylor Dist Co, Inc, 482 Mich. 136, 143; 753 NW2d 591 (2008); see also Wallace v. Kramer, 296 Mich. 680, 687–688; 296 NW 838 (1941); Soule v. Grimshaw, 266 Mich. 117, 120; 253 NW 237 (1934).

The sudden-emergency doctrine is a judicially created principle that excuses a defendant's negligent conduct because of an unexpected emergency that requires an immediate response and makes it impossible to take other reasonable action to avoid the danger.

Socony Vacuum Oil Co v. Marvin, 313 Mich. 528, 546; 21 NW2d 841 (1946). The doctrine does not apply when the sudden emergency was brought about by the defendant's own negligence. Id. Our Supreme Court has explained the rationale behind the sudden-emergency doctrine:

“One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.” [Id. (citation omitted).]

See also Vander Laan v. Miedema, 385 Mich. 226, 231–232; 188 NW2d 564 (1971); Vsetula v. Whitmyer, 187 Mich.App 675, 681; 468 NW2d 53 (1991). The sudden-emergency doctrine is an extension of the reasonably prudent person rule; therefore, the issue is whether the defendant acted as a reasonably prudent person would have acted under the same circumstances. Baker v. Alt, 374 Mich. 492, 496; 132 NW2d 614 (1965).

For the sudden-emergency doctrine to apply, the emergency must be “unusual” or “unsuspected.” Vander Laan, 385 Mich. at 232; Amick v. Baller, 102 Mich.App 339, 341–342; 301 NW2d 530 (1980). To be “unusual,” the circumstances of the emergency must vary from the “everyday traffic routine confronting the motorist.” Vander Laan, 385 Mich. at 232; see also Amick, 102 Mich.App at 341–342. For an emergency to be “unsuspected,” the danger must not have “been in clear view for any significant length of time” and must have been “totally unexpected.” Vander Laan, 385 Mich. at 232; see also Amick, 102 Mich.App at 341–342.

It is undisputed that, as defendant drove away in his car with plaintiff and three other friends after street racing in Detroit, a gunshot rang out. Almost immediately, the decedent said, “I've been shot.” Abdulfattah testified that he first thought the decedent was kidding, and told him to “stop joking” since “I didn't expect anybody to shoot at us, because [we] didn't do anything wrong to anybody.” Plaintiff and defendant both testified that defendant got out of the car momentarily to confirm that the decedent had actually been shot. Defendant then got back into the car, in defendant's words, to “get the hell out of there.” When plaintiff exclaimed, “[o]h, there's blood all over,” the group immediately realized that the event was an emergency. Plaintiff and defendant both described the ensuing moments as “chaotic,” and testified that all five occupants of the car were, to one degree or another, “panicking” and “freaking out.” We conclude that the unforeseeable and unexpected shooting of the decedent, the severity of the decedent's condition, and the need to transport him to the hospital immediately, all culminated to create a sudden emergency.

*3 Nevertheless, we also conclude that there remained a genuine issue of material fact concerning the applicability of the sudden-emergency doctrine in this case.

Plaintiff testified that, during the drive to the hospital, he was holding the decedent and putting pressure on the wound. Plaintiff did not tell defendant to slow down because “we were just trying to get [the decedent] to the hospital, that was [the] whole point.” Abdulfattah—who was himself injured in the resulting accident—testified that defendant “had no choice” but to exceed the speed limit and that “[a]nybody would have [been] speed[ing] trying to get to the hospital.” While the situation was undoubtedly serious, it is well-settled that the sudden-emergency doctrine does not create an invitation to behave in an unreasonably negligent manner. White v. Taylor Dist Co, Inc, 275 Mich.App 615, 623; 739 NW2d 132 (2007). Instead, when faced with a sudden emergency, the defendant must still act as a reasonably prudent person would act under the circumstances of that particular emergency. Szymborski v. Slatina, 386 Mich. 339, 341; 192 NW2d 213 (1971); see also White, 275 Mich.App at 622. And as noted earlier, whether a particular defendant acted reasonably when faced with a sudden emergency is typically a question of fact for the jury. White, 482 Mich. at 143.

The evidence presented in this case revealed that defendant was driving his car at a very high rate of speed, between 90 and 160 miles per hour, on Detroit city streets at nighttime. In fact, the proofs established that when defendant hit a pot hole, he lost control of his vehicle and rolled the car a number of times. This was clearly negligent behavior, and it was for the trier of fact to determine whether defendant acted reasonably under the circumstances of the particular emergency at issue. See id. We acknowledge that a rational jury could determine that defendant acted reasonably and prudently under the specific circumstances of the emergency. On the other hand, a rational jury could determine that despite being faced with a sudden emergency, defendant acted unreasonably by exceeding the speed limit to such a great extent, especially at nighttime with limited sight distances. We conclude that, under the facts of this case, there remained a question of fact concerning whether the sudden-emergency doctrine should be applied to bar defendant's liability for negligence. See Cox v. LaLonde, 101 Mich.App. 342, 349; 300 NW2d 564 (1980). We therefore reverse the trial court's order granting summary disposition in favor of defendant and remand for further proceedings.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff, as the prevailing party, may tax costs pursuant to MCR 7.219.

Dissent

Hide all concurrence and dissent visual indicators.

OWENS, P.J. (dissenting).

*3 I respectfully dissent from the majority opinion and would affirm the trial court's order granting defendant's motion for summary disposition.

*4 While the question whether a particular defendant acted reasonably when faced with a sudden emergency may be a question of fact for the jury, where a defendant moves for summary disposition pursuant to MCR 2.116(C)(10), this is only true where there is a genuine issue of material fact. See, e.g., White v. Taylor Distributing Co, Inc, 482 Mich. 136, 143, 140–141; 753 NW2d 591 (2008). In this case, even when viewing the evidence in the light most favorable to plaintiff, the nonmoving party, Joseph v. Auto Club Ins Ass'n, 491 Mich. 200, 206; 815 NW2d 412 (2012), I would conclude that there was no genuine issue of material fact whether defendant acted reasonably under the circumstances of the particular sudden emergency. After he learned decedent had been shot, defendant found his passenger “in danger,” and was required to act in the chaotic moments that ensued—with the encouragement of his companions, including plaintiff—without time to consider what, in hindsight, might have been better means to avoid the impending danger. The evidence supported a finding that defendant acted reasonably when confronted with a sudden emergency. Therefore, I would conclude that the trial court correctly applied the sudden-emergency doctrine to grant defendant summary disposition.

4.2.1.5 Particularizing the Reasonable Person 4.2.1.5 Particularizing the Reasonable Person

4.2.1.5.1 Children 4.2.1.5.1 Children

4.2.1.5.1.1 Restatement Second, Section 283A, on the negligence standard for children 4.2.1.5.1.1 Restatement Second, Section 283A, on the negligence standard for children

If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances.

See Reporter's Notes.

Comment:

a. Children. A child is a person of such immature years as to be incapable of exercising the judgment, intelligence, knowledge, experience, and prudence demanded by the standard of the reasonable man applicable to adults. The rule stated in this Section is commonly applied to children of tender years. In practice, it has seldom been applied to anyone over the age of sixteen, although situations may possibly arise where the rule might be applicable to persons above that age, and no definite line can be drawn. An analogy may be suggested to the rule stated in § 339 as to the immaturity and lack of judgment of children trespassing upon land. See the Comments to that Section.

Most of the cases which have applied the rule stated in this Section have involved the contributory negligence of children, where the reason for special protection of them is readily apparent; but the rule is equally applicable to child defendants.

b. Special standard for children. The special standard to be applied in the case of children arises out of the public interest in their welfare and protection, together with the fact that there is a wide basis of community experience upon which it is possible, as a practical matter, to determine what is to be expected of them.

A child of tender years is not required to conform to the standard of behavior which it is reasonable to expect of an adult. His conduct is to be judged by the standard of behavior to be expected of a child of like age, intelligence, and experience. A child may be so young as to be manifestly and utterly incapable of exercising any of those qualities of attention, perception, knowledge, experience, intelligence, and judgment which are necessary to enable him to perceive a risk and to realize its unreasonable character. On the other hand, it is obvious that a minor who has not yet attained his majority may be quite as capable as an adult of exercising such qualities. Some courts have endeavored to lay down fixed rules as to a minimum age below which the child is incapable of being negligent, and a maximum age above which he is to be treated like an adult. Usually these rules have been derived from the old rules of the criminal law, by which a child under the age of seven was considered incapable of crime, and one over fourteen was considered to be as capable as an adult. The prevailing view is that in tort cases no such arbitrary limits can be fixed. Undoubtedly there is a minimum age, probably somewhere in the vicinity of four years, below which negligence can never be found; but with the great variation in the capacities of children and the situations which may arise, it cannot be fixed definitely for all cases.

Between the two extremes there are children whose capacities are infinitely various. The standard of conduct required of the child is that which it is reasonable to expect of children of like age, intelligence, and experience. “Intelligence” includes other mental capacities, but does not include judgment, which is an exercise of capacity rather than the capacity itself. The fact that the child is mentally retarded, or that he is unusually bright for his years, is to be taken into account; but once such account is taken, the child is still required to exercise the judgment of a reasonable person of that intelligence. Likewise to be taken into account are the circumstances under which the child has lived, and his experience in encountering particular hazards, or the education he has received concerning them. If the child is of sufficient age, intelligence, and experience to understand the risks of a given situation, he is required to exercise such prudence in protecting himself, and such caution for the safety of others, as is common to children similarly qualified.

It is impossible to lay down definite rules as to whether any child, or any class of children, should be able to appreciate and cope with the dangers of many situations. A child of ten may in one situation have sufficient capacity to appreciate the risk involved in his conduct, and to realize its unreasonable character, but in another situation he may lack the necessary mental capacity or experience to do so; and in the case of another child of ten of different mental capacity or experience a different conclusion may be reached in the same situation.

Restatement (Second) of Torts § 283A (1965)

4.2.1.5.1.2 Restatement Third, Section 10, on the negligence standard of children 4.2.1.5.1.2 Restatement Third, Section 10, on the negligence standard of children

(a) A child's conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in Subsection (b) or (c).
(b) A child less than five years of age is incapable of negligence.
(c) The special rule in Subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

Restatement (Third) of Torts: Phys. & Emot. Harm § 10 (2010)

4.2.1.5.1.3 Dunn v. Teti ("The Swinging Stick Case") 4.2.1.5.1.3 Dunn v. Teti ("The Swinging Stick Case")

Does this court follow the second restatement? What does the dissent say?

421 A.2d 782

Vincent DUNN, a minor, by his parents and natural guardians, Edwin A. Dunn and Jacqueline Dunn, and by Edwin A. Dunn and Jacqueline Dunn, his wife, in their own right, Appellants, v. David TETI, a minor, by his parents and natural guardians, Ronald R. Teti and Margo Teti.

Superior Court of Pennsylvania.

Argued Nov. 12, 1979.

Filed Aug. 22, 1980.

Petitions for Allowance of Appeal Denied Dec. 18, 1980 and Feb. 3, 1981.

*401Robert D. Barozzini, Pittsburgh, for appellants.

Paul R. Marks, Pittsburgh, for appellees.

Before PRICE, CAVANAUGH and WATKINS, JJ.

PRICE, Judge:

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

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

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

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

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

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

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

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

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

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

Order affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

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

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

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

4.2.1.5.1.4 Exception: When are children held to an adult standard of care? 4.2.1.5.1.4 Exception: When are children held to an adult standard of care?

Courts agree that children may sometimes be held to an adult standard of care? But when? In addition to the third restatement language, there are two popular doctrines about when a child may be held to the ordinary, adult standard of reasonable care.

When engaged in adult activities, or in those activities that only adults engage in.

To give legal sanction to the operation of automobiles by teen-agers with less than ordinary care for the safety of others is impractical today, to say the least. We may take judicial notice of the hazards of automobile traffic, the frequency of accidents, the often catastrophic results of accidents, and the fact that immature individuals are no less prone to accidents than adults. While minors are entitled to be judged by standards commensurate with age, experience, and wisdom when engaged in activities appropriate to their age, experience, and wisdom, it would be unfair to the public to permit a minor in the operation of a motor vehicle to observe any other standards of care and conduct than those expected of all others. A person observing children at play with toys, throwing balls, operating tricycles or velocipedes, or engaged in other childhood activities may anticipate conduct that does not reach an adult standard of care or prudence.¹⁴ However, one cannot know whether the operator of an approaching automobile, airplane, or powerboat is a minor or an adult, and usually cannot protect himself against youthful imprudence even if warned. Accordingly, we hold that in the operation of an automobile, airplane, or powerboat, a minor is to be held to the same standard of care as an adult.

Undoubtedly there are problems attendant upon such a view. However, there are problems in any rule that may be adopted applicable *459 to this matter. They will have to be solved as they may present themselves in the setting of future cases. The latest tentative revision of the Restatement of Torts proposes an even broader rule that would hold a child to adult standards whenever he engages ‘in an activity which is normally undertaken only by adults, and for which adult qualifications are required.'¹⁵ However, it is unnecessary to this case to adopt a rule in such broad from, and, therefore, we expressly leave open the question whether or not that rule should be adopted in this state. For the present it is sufficient to say that no reasonable grounds for differentiating between automobiles, airplanes, and powerboats appears, and that a rule requiring a single standard of care in **864 the operation of such vehicles, regardless of the age of the operator, appears to us to be required by the circumstances of contemporary life.
Dellwo v. Pearson, 259 Minn. 452, 458–59, 107 N.W.2d 859, 863–64 (1961)

Or when engaged in a dangerous activity.

Courts in other jurisdictions have created an exception *413 to the special child standard because of the apparent injustice that would occur if a child who caused injury while engaged in certain dangerous activities were permitted to defend himself by saying that other children similarly situated would not have exercised a degree of care higher than his, and he is, therefore, not liable for his tort. Some courts have couched the exception in terms of children engaging in an activity which is normally one for adults only. See, e. g., Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859 (1961) (operation of a motorboat). We believe a better rationale is that when the activity a child engages in is inherently dangerous, as is the operation of powerful **394 mechanized vehicles, the child should be held to an adult standard of care.

Such a rule protects the need of children to be children but at the same time discourages immature individuals from engaging in inherently dangerous activities. Children will still be free to enjoy traditional childhood activities without being held to an adult standard of care. Although accidents sometimes occur as the result of such activities, they are not activities generally considered capable of resulting in “grave danger to others and to the minor himself if the care used in the course of the activity drops below that care which the reasonable and prudent adult would use . . .” Daniels v. Evans, 107 N.H. 407, 408, 224 A.2d 63, 64 (1966).
Robinson v. Lindsay, 92 Wash. 2d 410, 412–13, 598 P.2d 392, 393–94 (1979)

4.2.1.5.2 Those With Special Knowledge 4.2.1.5.2 Those With Special Knowledge

4.2.1.5.2.1 Heath v. Swift Wings, Inc. ("The Controlled Landing Case") 4.2.1.5.2.1 Heath v. Swift Wings, Inc. ("The Controlled Landing Case")

Why was a new trial required in this case? Is the reason that the reasonable person standard is not adequate in this case?

North Carolina Court of Appeals

40 N.C. App. 158

No. 7824SC367

1979-03-06

RICHARD EDWIN HEATH v. SWIFT WINGS, INC., THE BANK OF VIRGINIA TRUST COMPANY, FRANK W. KISH, RICHARD H. KISH and KERMIT ROCKETT

No. 7824SC367

(Filed 6 March 1979)

1. Aviation § 3.1— airplane crash —standard of care of pilot — erroneous instruction

In an action to recover for the deaths of two passengers in an airplane crash, the trial court erred in referring in the instructions to the “ordinary care and caution, which an ordinary prudent pilot having the same training as [the pilot in this case], would have used in the same or similar circumstances,” since such instruction permitted the iury to consider the pilot’s own particular experience and training in determining the standard of care required of him rather than applying a minimum standard generally applicable to all pilots.

2. Aviation § 3.1— deaths in airplane crash — instruction on emergency procedure-insufficient supporting evidence

In an action to recover for the deaths of two passengers in an airplane crash, testimony that a pilot is taught to switch magnetos when the airplane is experiencing engine roughness was insufficient to support the court’s instruction that switching magnetos constituted an emergency procedure.

3. Aviation § 3.1; Trial § 36.2— contentions of parties —expression of opinion

In an action to recover for the deaths of two passengers in an airplane crash, the trial court expressed an opinion on the evidence in violation of G.S. 1A-1, Rule 51(a) when, in summarizing the contentions of the parties, the court stated that “plaintiff would have [the pilot] adhere to a perfect standard of care whereas the standard is that of the ordinary prudent pilot.”

APPEAL by plaintiff from Howell, Judge. Judgment entered 7 November 1977 in Superior Court, WATAUGA County. Heard in the Court of Appeals 31 January 1979.

On 3 August 1975 a Piper 180 Arrow airplane crashed immediately after takeoff from the Boone-Blowing Rock Airport. Killed in the crash was the pilot, Fred Heath; his wife, Jonna; their son, Karl; and a family friend, Vance Smathers. Valerie Heath, a daughter of Fred and Jonna Heath, and sister of Karl, became the sole survivor of the Heath family. This action was instituted by Richard E. Heath as ancillary administrator of the estates of Jonna and Karl Heath a,gainst (1) Swift Wings, Inc., the corporate owner of the aircraft, on the grounds of agency; (2) the four shareholders of Swift Wings, Inc. —Fred Heath, Frank *159Kish, Richard Kish, and Kermit Rockett — alleging they actually constituted a de facto partnership, and (3) The Bank of Virginia Trust Company, Executor of the Estate of Frederick B. Heath, Jr.

The plaintiff’s complaint alleged several grounds of negligence: (1) operation of the aircraft in an overloaded condition beyond its performance capabilities, (2) failure to follow the operating manual with regard to takeoff distance for short and soft field takeoffs, (3) failure to take into account specific runway and weather conditions, (4) failure to take appropriate emergency steps including aborting takeoff, (5) flying below safe speed, (6) improper control after takeoff, and (7) violation of federal aircraft safety regulations.

Defendants answered, generally denying negligence, the existence of agency, and a de facto partnership.

Plaintiff’s evidence, except to the extent it is quoted from the record, is briefly summarized as follows: Mary Payne Smathers Curry, widow of Vance Smathers, observed the takeoff of the Piper aircraft shortly after 5:00 o’clock on 3 August 1975. She observed Fred Heath load and reload the passengers and luggage, apparently in an effort to improve the balance of the aircraft. He also “walked around [the airplane] and looked at everything . . . She remembers seeing him and thinking that he’s doublechecking it to be sure no one has slashed the tires.” The airplane engine started promptly and the plane was taxied to the end of the runway where it paused for approximately five minutes before takeoff. The airplane came very close to the end of the runway before takeoff. However, “[t]he engine sounded good the entire time, and she did not recall hearing the engine miss or pop or backfire.” After takeoff, the airplane “gained altitude but it didn’t go up very high” and then “leveled off pretty low”.

Joe Maples, the golf pro at Boone Golf and Country Club, was, at the time of the crash, in his pro shop which is located 600 to 800 yards from one end of the runway. He is a licensed pilot and operates on a voluntary basis a “Unicom” radio in the pro shop to issue aircraft traffic advisories. He heard the takeoff and testified that the engine sounded normal. He observed that his thermometer at the time of takeoff registered between 78° and 80° Fahrenheit. Later on that day, he also observed that the grass appeared to have grown to a height of five to six inches on *160parts of the runway, although it was worn somewhat in the middle. The soil was hard and flat. The crash occurred approximately one mile from the end of the runway. There is a gradual, unobstructed rise in the terrain to an altitude of about 200 feet within one mile from the end of the runway. Only crops, isolated trees, and drainage ditches lie on the terrain between the runway and the rise.

Joe Shuford testified that he resides in a house approximately 2,000 feet from the end of the runway from which the Piper aircraft took off. The house overlooks a cornfield which is beneath the path of aircraft departing the runway. He heard the aircraft taking off and “remarked to his wife that it seemed like it was taking a long time for the airplane to get down the runway.” When the plane came in sight it was “bobbing up and down like a ‘yo-yo’ just above the corn. He saw the plane touch into the corn twice.' The engine sounded like it was having a hard time flying.” The lánding gear was up. As the plane approached a set of power lines extending across the cornfield, it lifted several feet and he heard a loud “pop”. The aircraft then passed between two power poles, made a right bank, the left wing struck a tree, and the aircraft continued down the valley without gaining any altitude. The plane eventually crashed near a set of power lines with which the plane apparently collided on Holiday Hills Road.

Robert Bumgardner, a representative of the local electric membership corporation, testified that at the point where they were apparently struck by the plane, the power lines were close to 30 feet above the ground. One pole had been broken some distance above the ground, the cross arm on another had been broken, and one of four power lines had been snapped.

Richard G. Rodriquez, an investigator for the National Transportation Safety Board, testified that his investigation indicated that the grass runway was firm and essentially level. The landing gear was apparently down and locked at the time of the crash. The flaps were up. He testified that the fuel was flowing to all four cylinder injectors and that a test of each magneto indicated that they were functioning properly. He concluded, “Yes, my testimony would be that we found no evidence of preimpact malfunction.”

*161William B. Gough, Jr., a free-lance mechanical engineering consultant and pilot, testified concerning the operation and flight performance of the Piper 180 Arrow. He testified concerning the many factors affecting the takeoff capabilities of the Piper and the calculations to be made by the pilot before takeoff, utilizing flight performance charts. He testified that in his opinion, according to his calculations, the pilot should have used flaps to aid in the takeoff. Furthermore, he stated that in his opinion the reasonably prudent pilot should have made a controlled landing in the cornfield shortly after takeoff if he were experiencing difficulty attaining flight speed, and that if he had done so Jonna Heath and Karl Heath would have survived.

The defendant offered no testimony, but instead relied solely on testimony elicited on cross-examination which is briefly summarized below. Witness Joe Maples conceded that he did not hear the airplane’s -engine as it neared takeoff, because the takeoff was from the end of the runway fartherest from the pro shop. He also stated that he had utilized the airport on numerous occasions before he was ever aware of the power line obstructions in the cornfield. Joe Shuford testified with respect to the engine noise that, “Yes, sir, I have indicated that when I heard this ‘pop’ my first impression was that it was an engine backfiring.” Mrs. Curry admitted that, although she testified that the engine sounded good during takeoff, she would not recognize the sound of an engine that was unable to develop full power. Mr. Rodriquez conceded, under extensive cross-examination, that there were some malfunctions which his inspection may not have detected, and would not deny absolutely that malfunction could have caused the crash. Plaintiff’s expert Gough testified concerning several malfunction possibilities that could conceivably have caused power loss.

After the customary motions at the conclusion of all the evidence, the case was submitted to the jury upon voluminous instructions by the trial court. The jury returned a verdict answering the following issue as indicated: “1. Was Fred Heath, Jr., negligent in the operation of PA —28R ‘Arrow’ airplane on ■August 3, 1975 as alleged in the complaint?” Answer: “No”. Plaintiff appeals assigning error to the exclusion of certain evidence and to the charge to the jury. Defendants cross-appeal assigning *162error to the denial of the motions for a directed verdict by Swift Wings, Inc.

Adams and Jenkins, by W. Thad Adams, III, for plaintiff appellant.

Smith, Anderson, Blount and Mitchell, by James G. Billings, for defendant appellees.

MORRIS, Chief Judge.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New trial.

Judges MARTIN (Harry C.) and CARLTON concur.

4.2.1.5.2.2 Jackson v. Axelrad ("The Spider Man Meme Case") 4.2.1.5.2.2 Jackson v. Axelrad ("The Spider Man Meme Case")

Make sure you note the special circumstances of this case. The case involves comparative negligence, which is a doctrine that says that if the plaintiff acted negligently, they can lose, even if the defendant also acted negligently. In this case, the court is asking the standard of care that applies to the plaintiff. Would a reasonable person have done what this plaintiff did? Does that matter?

Supreme Court of Texas

221 S.W.3d 650

No. 04-0923

2007-04-20

Dr. Richard JACKSON, Petitioner, v. David and Carolyn AXELRAD, Respondents.

No. 04-0923.

Supreme Court of Texas.

Argued Feb. 16, 2006.

Decided April 20, 2007.

*651R. Brent Cooper, Diana L. Faust, Cooper & Scully, P.C., Dallas, Erin E. Lunce-ford, Joel Randal Sprott, Munisteri, Sprott, Rigby, Newsom & Robbins, P.C., Houston, for Petitioner.

Darrin M. Walker, Law Office of Darrin Walker, Kingwood, George Chandler, Michael Kirk Mathis, Chandler Law Offices, Lufkin, Walter Perry Zivley Jr., Law Offices of W. Perry Zivley Jr., Houston, for Respondents.

Justice BRISTER

delivered the opinion of the Court.

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

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

I. Background

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

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

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

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

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

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

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

II. Presumptions Concerning a Split Verdict

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

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

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

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

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

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

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

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

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

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

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

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

IV. Do Physicians As Patients Have a Different Duty?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Y. Other Points and Conclusion

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

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

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

4.2.1.5.3 Those With A Physical Disability 4.2.1.5.3 Those With A Physical Disability

4.2.1.5.3.1 Roberts v. State ex rel. Louisiana Health & Human Resources Administration ("The Cane-Less Operator Case") 4.2.1.5.3.1 Roberts v. State ex rel. Louisiana Health & Human Resources Administration ("The Cane-Less Operator Case")

What is the standard of care for someone who has a distinctive physical condition, such as being blind?

Note: This case uses the word "handicapped" which is not a respectful term. Nonetheless I present the case unedited.I have done that to preserve it as an illustration of contemporaneous attitudes and because I think it is a contrast to many cases that summarily conclude that someone who is blind must use a cane or other aid to avoid negligence.

Louisiana Court of Appeal

396 So. 2d 566

No. 8033

1981-03-11

William C. ROBERTS, Plaintiff-Appellant, v. STATE of Louisiana, THROUGH the LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION et al., Defendants-Appellees.

No. 8033.

Court of Appeal of Louisiana, Third Circuit.

March 11, 1981.

Writ Granted May 6,1981.

Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellant.

Steven R. Giglio, Baton Rouge, for defendants-appellees.

Before GUIDRY, CUTRER and LA-BORDE, JJ.

LABORDE, Judge.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When cross examined however, Jacobson testified:

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

A. Yes I do.

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

A. Yes I do.

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

A. Yes.

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

A. Right.

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

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

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

A. With instruction, yes.

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

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

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

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

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

AFFIRMED.

4.2.1.5.4 Those With a Mental Disability 4.2.1.5.4 Those With a Mental Disability

4.2.1.5.4.1 Restatement Third, Section 11, on the standard of care for non-physical impairments 4.2.1.5.4.1 Restatement Third, Section 11, on the standard of care for non-physical impairments

(a) The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability.
(b) The conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor.
(c) An actor's mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.

Comment:

a. Disabilities considered. The physical disabilities this Section takes into account generally need to be significant and objectively verifiable. For reasons relating to convenience of administration, it is not worthwhile to attempt to take into account disabilities that are minor or not susceptible to objective verification. Thus, a person's claim of being born clumsy would not be regarded as relevant.

b. Implications. Physical disability can both advantage and disadvantage actors at trial as the possible negligence of their past conduct is considered. It can advantage the actor by establishing that the actor neither knew nor should have known of dangers that would have been known by others. The blind person, for example, is unable to see dangers that would be readily observed by others. Physical disability can also advantage the actor at trial by showing that the actor was unable to adopt a precaution that would be feasible for most persons. The pedestrian with one leg, for example, is not able to run as a speeding car approaches, even though running is a convenient precaution for most pedestrians.

At the same time, persons with particular disabilities can appreciate that some conduct on their part will foreseeably entail a greater risk than the same conduct engaged in by able-bodied persons. Able to foresee this, an actor can be found negligent for not adopting special precautions that can reasonably reduce the special dangers that the actor's conduct involves. For example, it is considerably more dangerous for a blind person to walk over unfamiliar terrain than for a person free of disability. Thus, depending on the circumstances, a blind actor may be found negligent for walking over such terrain without a cane or some other form of assistance.

While it is sometimes said that an actor with a disability must adopt precautions that “compensate” for that disability, obviously complete compensation is often impracticable; what is required is the adoption of reasonable precautions such that their safety advantages outbalance their disadvantages and inconveniences. Yet even with those precautions adopted, there may be a level of risk associated with the activity that makes it negligent for an actor to engage in the activity at all. If, for example, an actor's vision is sufficiently impaired, it is negligent for that person to drive a car.

Under this Section, physical disability is neither a “justification” nor an “excuse” for what is otherwise negligent conduct. Rather, the Section recognizes that given the factors identified in § 3, an actor's significant physical disability should be taken into account in determining whether the actor's conduct lacks reasonable care. While those factors remain primary, they are evaluated in light of the individual's disability. Accordingly, the test is whether the individual has acted as a reasonably careful person with the particular disability. With physical disabilities, then—just as with childhood—tort law tailors the negligence standard to acknowledge the individual situation of the actor. To this extent, tort law employs what can be called a subjective rather than a fully objective standard of care. Of course, the weight to be attached to the subjective fact of disability depends on the contents of the particular claim of negligence. If, for example, a motorist is alleged to be negligent for failing to warn or signal before making a turn, the fact that the motorist has a hearing impairment ordinarily would not be relevant.

c. Old age. Old age, as such, is not taken into account in assessing the negligence of an actor's conduct. In many individual cases, however, old age is affiliated with particular physical disabilities. Under Subsection (a), those physical disabilities are taken into account. Thus, an 80-year-old actor who is no longer able to run will not be found negligent in failing to run as a hazard approaches. On the other hand, such an actor may be found negligent for engaging in an activity where running away from dangers is an important precaution.

d. Sudden incapacitation. Sudden incapacitation can be caused by a heart attack, a stroke, an epileptic seizure, diabetes, or other medical conditions. A typical case is sudden incapacitation that causes a driver to lose control of the car. This is distinctly dangerous and substandard driving which, absent the incapacitation, would easily merit a finding of negligence. Even so, when the incapacitation is itself unforeseeable, it follows that no reasonable precautions were available to the driver that could have avoided the risk of harm. The denial of negligence in these cases is hence consistent with § 3.

Sudden incapacitation is a defense against a claim of negligence in the sense that the burden of production rests on the party claiming incapacitation. The burden is so assigned largely because the facts relating to sudden incapacitation are, in general, peculiarly available to the afflicted party. For the same reason, the burden of production on the issue of the absence of reasonable foreseeability also rests on that party. If an actor has information indicating that an incident of incapacitation may be imminent or is likely to occur in the immediate future, the actor will obviously be unable to show unforeseeability and hence can be found negligent for the subsequent incident of substandard conduct. For that matter, if such an incident is foreseeable in the immediate future, the actor can be found negligent for proceeding to engage at all in a dangerous activity such as driving. For example, if an actor with a diabetic condition feels a hypoglycemic episode approaching, the actor is guilty of negligence in driving a car—or at least in failing to take medication to prevent the episode.

In many cases, however, it is clear that the immediate incident was one that the actor had no ability to foresee. Whether the reasonable-foreseeability standard is satisfied in such a case depends on what information was available to the actor indicating that at some uncertain point in the future the actor might suffer an instance of incapacitation while engaging in a potentially dangerous activity such as driving. Evidence bearing on reasonable foreseeability includes: the number and frequency of episodes of incapacitation in the past; the circumstances of those episodes, insofar as those circumstances bear on the likelihood of a recurrence; the extent to which medical treatment the actor is receiving can be expected to control the underlying medical problem; and whatever advice the actor's physician has provided. Whether the information is significant enough to render the instance of incapacitation reasonably foreseeable is commonly a question to be decided by the jury. In the assessment of reasonable foreseeability, a principal issue to be considered by the jury is whether the prospect of incapacitation is sufficiently foreseeable as to render the actor negligent for choosing to engage in a potentially dangerous activity such as driving.

e. Mental and emotional disability. When the actor is a child, the quite subjective rules concerning children set forth in § 10(a) apply, and any mental or emotional disability suffered by the child is taken into account in determining whether the child has behaved reasonably. For adults, however, such a disability is typically disregarded in considering whether the person has exercised reasonable care. This is the position taken by the Restatement Second of Torts § 283B, and the position is supported by a consistent line of modern cases. To be sure, modern society is increasingly inclined to treat physical disabilities and mental disabilities similarly, and this inclination is supported by the recognition that many mental disabilities have organic causes. Nevertheless, courts have advanced significant considerations in support of their position. It is useful to distinguish between limited or moderate mental disorders and those disorders that are the most serious, such as psychoses. The former are disregarded partly because they ordinarily are not especially important as an explanation for conduct and also because of the problems of administrability that would be encountered in attempting to identify them and assess their significance. The disregard of more serious mental disorders is also based in part on administrative considerations. The awkwardness experienced by the criminal-justice system in attempting to litigate the insanity defense is at least instructive. Similarly, it can be difficult in many cases to ascertain what the causal connection is between even a serious mental disorder and conduct that appears to be unreasonable. Furthermore, if a person is suffering from a mental disorder so serious as to make it likely that the person will engage in substandard conduct that threatens the safety of others, there can be doubts as to whether the person should be allowed to engage in the normal range of society's activities. While modern society has tended to resolve these doubts in favor of deinstitutionalization, there is nothing especially harsh in at least holding such a person responsible for those harms that the person's clearly substandard conduct causes. The theory of deinstitutionalization implies that even persons with severe mental disorders can adequately comply with society's norms; while reality may fall short of theory, deinstitutionalization becomes more socially acceptable if innocent victims are at least assured of opportunity for compensation when they suffer injury.

In addition, to recognize mental disability as a factor bearing on findings of negligence would be one-sided in a way that recognizing physical disability is not. Under Subsection (a), the physically disabled person, though relieved from doing what the disability prevents the person from doing, is expected to adopt extra precautions to respond to the extra level of risk that the person creates or incurs on account of the disability. Yet when the disability is mental or emotional, the disability directly affects the person's rationality and judgment; because of this, it frequently will be the case that the law cannot expect the person wisely and appropriately to moderate conduct choices so as to take the person's disability into account. Therefore, in mental-disability cases the law is often unable to implement the balanced approach that it applies to problems of physical disability.

Subsection (c) is applicable even when the actor's mental or emotional illness produces the type of sudden incapacitation that is otherwise covered by Subsection (b). When the illness that causes the incapacitation is mental or emotional, the assumptions underlying Subsection (b) are generally not present. Subsection (b) assumes that incidents of incapacitation can frequently occur without adequate foreknowledge to the individual; yet the actor who is vulnerable to incapacitating delusions is commonly aware of this vulnerability. Moreover, Subsection (b) assumes that before the incident occurs, the actor vulnerable to such incidents can make rational choices as to what activities to engage in. Yet the actor who is subject to psychotic episodes may well be one who is lacking in adequate rationality during other periods.

Just as the rules concerning children in § 10 and the physical-disability rules in this Section apply equally to the issues of negligence and contributory negligence, the rule in Subsection (c) that an actor's mental disabilities shall be disregarded applies in the context of the actor's contributory negligence as well as the context of the actor's negligence. Restatement Third, Torts: Apportionment of Liability § 3, Comment a, concludes that the “[s]tandard for plaintiff's negligence [is the] same as [the] standard for defendant's negligence.” The shift in tort doctrine from contributory negligence as a full defense to comparative responsibility as a partial defense weakens whatever arguments that otherwise might favor a dual standard that would treat the mentally disabled plaintiff more leniently than the mentally disabled defendant. Under comparative responsibility, that plaintiff, even if found contributorily negligent, may well encounter only a limited reduction in the award the plaintiff receives from the defendant found guilty of negligence. Moreover, even though the plaintiff's mental disability is ignored in considering whether the plaintiff is contributorily negligent at all, under Restatement Third, Torts: Apportionment of Liability § 8, Comment c, that disability can be considered in the course of the more open-ended process of apportioning percentages of responsibility between the plaintiff and the defendant. Accordingly, the plaintiff whose contributory negligence is in part explainable in terms of mental disability can be expected to receive an award that is larger than the awards received by other plaintiffs who engage in seemingly similar acts of contributory negligence. Indeed, if the evidence shows that the plaintiff is largely unable to appreciate risks or largely unable to control conduct in light of risk, the jury is likely to assign to the plaintiff only a small share of the overall responsibility. Here, as elsewhere, the flexibility of comparative negligence permits intermediate accommodations that were not available under the traditional all-or-nothing defense of contributory negligence.

There are, moreover, circumstances in addition to apportionment that warrant taking actor's emotional disorders into account. The reasoning that ordinarily justifies disregarding those disorders is largely designed to protect the interests and safety of innocent third parties, and to protect even negligent third parties from bearing excessive liabilities. When the plaintiff and the defendant are bound together in an ongoing economic relationship, this reasoning diminishes in force. Thus, if the plaintiff is a health-care professional who has been hired to take care of the person whose emotional disability makes the patient dangerous to others, the plaintiff cannot complain if injured by the very condition that gives rise to the plaintiff's employment. Similarly, if the emotionally ill plaintiff is a patient in a facility designed to treat such persons, and if that facility is arguably negligent in not adequately taking care of the plaintiff to prevent that person from exposing self to injury, the facility is in a weak position to allege the plaintiff's contributory negligence as a defense against its own liability. At the least, the plaintiff's emotional illness is taken into account in determining whether the patient has behaved as a reasonably prudent person; and some courts might further conclude that the facility's assumption of responsibility for the patient signifies that the patient's contributory negligence, even if found to exist, should not serve as any form of an affirmative defense.

Restatement (Third) of Torts: Phys. & Emot. Harm § 11 (2010)

4.2.1.5.4.2 Delahanty v. Hinckley ("A Case Illustrating Now Questionable Precedent and Past Attitudes") 4.2.1.5.4.2 Delahanty v. Hinckley ("A Case Illustrating Now Questionable Precedent and Past Attitudes")

Note! This case refers to those with mental disabilities as insane. This is not a respectful way to refer to people with mental disabilities, but I have included the unedited text of this opinion as an example of historical attitudes on this subject, as well as legal precedent. The content of the opinion, not just its language, is further evidence of those attitudes.

United States District Court for the District of Columbia

799 F. Supp. 184

Civ. A. Nos. 82-409, 82-549 and 82-866

1992-08-14

Thomas K. DELAHANTY, et al., Plaintiffs, v. John W. HINCKLEY, Jr., Defendant. James Scott BRADY, et al., Plaintiffs, v. John W. HINCKLEY, Jr., Defendant. Timothy John McCARTHY, Plaintiff, v. John W. HINCKLEY, Jr., Defendant.

Civ. A. Nos. 82-409, 82-549 and 82-866.

United States District Court, District of Columbia.

Aug. 14, 1992.

*185Robert Cadeaux, Cadeaux & Taglieri, Washington, D.C., for plaintiffs Jean Delahanty and Thomas Delahanty.

Jacob A. Stein, Stein, Mitchell & Mezines, Washington, D.C., for plaintiffs James Scott Brady and Sarah B.

Paul Douglas Kamenar, Daniel J. Popco and Nicholas E. Calió, Washington, D.C., for plaintiff Timothy John McCarthy.

Judith A. Miller, Williams & Connolly, Vincent John Fuller, Betty Jo and Theresa Jones, Washington, D.C., for defendant John W. Hinckley, Jr.

MEMORANDUM

JOHN GARRETT PENN, Chief Judge.

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

Arguments

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

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

Punitive Damages

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

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

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

Compensatory Damages

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

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

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

Conclusion

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

. At a settlement conference on March 31, 1992, counsel for the defendant stated that the Supreme Court's recent decision in Simon & Schuster Inc. v. Member of the New York State Crime Victims Bd., — U.S. —, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) has caused defendant to reconsider the previously agreed to settlement terms. The Supreme Court therein addressed New York's "Son of Sam" law. That statute required that when an accused or convicted criminal authored works describing his crime, any income derived must be deposited in an escrow account. Under the statute the funds from the escrow account were to be made available to the criminal’s victims and creditors. The Court held that this statute was presumptively inconsistent with the First Amendment in that it imposed a content based financial disincentive on speech. Id. — U.S. at —, 112 S.Ct. at 508-509.

The Court notes that Simon & Schuster is inapplicable to the instant action which in no way involves any governmental restraint on the defendant’s First Amendment rights and which does not preclude a private tort action against the defendant.

4.2.1.5.4.3 Colman v. Notre Dame Convalescent Home, Inc. ("The Caregiver Special Duty Rule Case") 4.2.1.5.4.3 Colman v. Notre Dame Convalescent Home, Inc. ("The Caregiver Special Duty Rule Case")

Note! This case refers to those with mental disabilities as insane. This is not a respectful way to refer to people with mental disabilities, but I have included the unedited text of this opinion as an example of historical attitudes on this subject, and because the opinion attempts to grapple with, and reshape precedent that makes those suffering from a mental disability liable in tort.

United States District Court for the District of Connecticut

968 F. Supp. 809

Civil Action No. 3:96 CV 0486(GLG)

1997-07-07

Corrine COLMAN, Plaintiff, v. NOTRE DAME CONVALESCENT HOME, INC. and Gail Kemp, Conservator of the Person of mary Denittis and Mary Denittis, Individually, Defendants.

Civil Action No. 3:96 CV 0486(GLG).

United States District Court, D. Connecticut.

July 7, 1997.

*810L. Douglas Shrader, R. Kelley Franco, Shrader & Knapp, Westport, CT, for Corrine Colman.

Carolyn Roberts Linsey, Owens, Schine, Nicola & Donahue, Trumbull, CT, for Notre Dame Convalescent Home, Inc.

Richard H. Raphael, Westport, CT, for Gail Kemp, Mary Denittis, I.

MEMORANDUM DECISION

GOETTEL, District Judge.

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

FACTS

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

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

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

DISCUSSION

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

Count Three: Battery

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

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

Count Two: Negligence

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

So Ordered.

. The cases cited by defendant in support of her argument are not to the contrary. Both Connecticut Supreme Court cases stand for the limited proposition that insanity may be a defense to negligence in the rare case where defendant is suddenly overcome without forewarning by a mental disability or disorder that incapacitates him from conforming his behavior to reasonable standards. See Bushnell v. Bushnell, 103 Conn. 583, 590, 131 A. 432 (1925) (individual who falls asleep at the wheel of a car is not liable for injuries resulting from a subsequent accident) and King v. Connecticut Co., 110 Conn. 615, 617, 149 A. 219 (1930) (individual who is struck by seizure and rendered temporarily paralyzed is not contributorily negligent for failing to move out of the path of a trolley car).

Plaintiff also cites to Fitzgerald v. Lawhorn, 29 Conn.Supp. 511, 294 A.2d 338 (1972). There, the Connecticut Superior Court recognized that ”[t]he majority view appears to be that an insane person should be liable for torts of negligence,” but refused to follow that rule, finding that “[tjhere are only a handful of decisions at best on this subject [and n]o Connecticut cases were found as authority." Id. at 511, 294 A.2d 338. However, subsequent Superior Courts have adopted the majority rule. See, e.g., Turner v. Caldwell, 36 Conn.Supp. 350, 351, 421 A.2d 876, 876-77 (1980) (recognizing majority rule and finding that "[t]he weight of authority is that insane persons are liable for their negligent acts.”). In any event, the Connecticut Supreme Court's decision in Polmatier v. Russ, 206 Conn. 229, 233 n. 4, 537 A.2d 468 (1988) — noting that the rule holding mentally deficient adults liable for their torts has been applied to negligence— would appear to impliedly overrule Fitzgerald v. Lawhorn, 29 Conn.Supp. 511, 294 A.2d 338 (1972).

4.2.2 Analyzing Whether the Defendant Is Under A Duty of Reasonable Care to the Plaintiff 4.2.2 Analyzing Whether the Defendant Is Under A Duty of Reasonable Care to the Plaintiff

4.2.2.1 Palsgraf v. Long Island Railroad ("THE tort case") 4.2.2.1 Palsgraf v. Long Island Railroad ("THE tort case")

Helen Palsgraf, Respondent, v. The Long Island Railroad Company, Appellant.

(Argued February 24, 1928;

decided May 29, 1928.)

*340 William McNamara and Joseph F. Keany for appellant.

Matthew W. Wood for respondent.

Cardozo, Ch. J.

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

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

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

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

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

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

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

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

Andrews, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The judgment appealed from should be affirmed, with costs.

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

Judgment reversed, etc.

4.2.2.2 Misfeasance or an Affirmative Act Compared to Nonfeasance or a Failure to Aid or Protect 4.2.2.2 Misfeasance or an Affirmative Act Compared to Nonfeasance or a Failure to Aid or Protect

Generally speaking, risking harm incurs a duty but the possibility of averting harm does not

4.2.2.2.1 Mellon Mortgage Co. v. Holder ("The Palsgraf Do-Over Case") 4.2.2.2.1 Mellon Mortgage Co. v. Holder ("The Palsgraf Do-Over Case")

How is this case like Palsgraf?

5 S.W.3d 654 (1999)

MELLON MORTGAGE COMPANY, Petitioner,
v.
Angela N. HOLDER, f/k/a Angela N. Hamilton, individually and a/n/f for Nicholas C. Laske, Respondent.

No. 97-1187.

Supreme Court of Texas.

Argued January 12, 1999.Decided September 9, 1999.Rehearing Overruled December 2, 1999.

Catherine B. Smith, Robert M. Schick, Kathleen A. Gallagher, Houston, for Petitioner.

Kenneth M. Morris, David A. Furlow, John S. Brannon, Gene L. Locke, Andrea Chan, Laura Anne Coats, Elizabeth M. Revere, Houston, for Respondent.

Justice ABBOTT delivered a plurality opinion, in which Justice HECHT and Justice OWEN join.

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

Holder sued Mellon and the City of Houston but did not sue her attacker. The trial court granted summary judgment for Mellon and the City on all of Holder's claims. The court of appeals affirmed the summary judgment in favor of the City on the basis of sovereign immunity. With regard to Holder's claims against Mellon, the court of appeals affirmed the summary judgment on Holder's negligence per se claim, but reversed on the negligence, gross negligence, and loss of consortium^[1] claims. On petition for review to this Court, Mellon claims, among other things, that it owed no legal duty to Holder. Because we hold that it was not foreseeable to Mellon that a person would be accosted several blocks from Mellon's 655 *655 garage and forced to drive to that garage where she would be sexually assaulted, Mellon owed no duty to Holder to prevent the attack. Accordingly, we reverse the court of appeals' judgment and render judgment that Holder take nothing.^[2]

I

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

We have repeatedly stated that "[f]oreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable." Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); see also Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 551 (Tex.1985). We have also frequently stated a two-prong test for foreseeability:

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

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

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

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

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

Although judges and scholars have long debated the relative merits of the two views, the gist of Chief Judge Cardozo's duty analysis has been widely embraced. Compare 3 HARPER ET AL., THE LAW OF TORTS § 18.2, at 654-55 (2d ed.1986); RESTATEMENT (SECOND) OF TORTS § 281 cmt. c (1965); Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L. REV. 1, 3-5 (1998); and Green, Proximate Cause in Texas Negligence Law, 28 TEX. L.Rev. 471, 472 (1950); with KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 43, at 287 (5th ed.1984). The Restatement (Second) of Torts states:

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

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

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

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

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

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

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

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

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

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

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

II

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

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

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

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

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

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

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

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

Justice ENOCH filed a concurring opinion.

Justice BAKER filed a concurring opinion.

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

Justice GONZALES did not participate in the decision.

Justice ENOCH concurring.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice BAKER, concurring.

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

I. THE PLURALITY

The plurality relies on Palsgraf v. Long Island Railroad, for its two-prong foreseeability test for duty. See Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928). But even the plurality's cited authorities recognize that, contrary to the opinion's claim, Palsgraf `s two-prong duty analysis has not been "widely embraced." 663 *663 5 S.W.3d 654, 655; see RESTATEMENT (SECOND) of Torts § 281 Reporter's Notes (1966) (noting that Palsgraf is "controversial" and that, as late as 1966, the decisions on facts that are at all analogous to Palsgraf's facts are "few and divided."); Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L.REV. 1, 3 (1998)("Leading scholars treat Palsgraf as a proximate cause case.... Cordozo's own reasoning in Palsgraf is typically ignored or derided."); see also Powers, Judge and Jury in the Texas Supreme Court, 75 TEX. L.REV. 1699, 1702-03 (1997) (explaining that Dean Keeton's approach to duty and proximate cause, in which questions about whether a defendant's liability extends to a particular type of plaintiff are questions of proximate cause and not duty, has prevailed in Texas). Further, as the plurality concedes, the Texas cases it cites for the two-prong foreseeability analysis discuss foreseeability only in the context of proximate cause, not duty. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549-50 (Tex.1985); Texas Cities Gas Co. v. Dickens, 140 Tex. 433, 168 S.W.2d 208, 212 (1943); Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849-50 (1939); San Antonio & A.P. Ry. v. Behne, 231 S.W. 354, 356 (Tex. 1921). Moving the determination of whether harm to a certain class of potential plaintiffs is foreseeable from the proximate cause analysis to the duty analysis changes Texas law in this type of case. It also changes the law in every negligence case that requires a duty analysis as a threshold issue. More importantly, it shifts the allocation of power in such cases. See Powers, Judge and Jury in the Texas Supreme Court, 75 TEX. L.REV. at 1703. Traditionally, duty is a threshold legal issue the court properly decides. See Walker, 924 S.W.2d at 377; Powers, Judge and Jury in the Texas Supreme Court, 75 TEX. L.REV. at 1703. Proximate cause is usually a jury issue. See Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.1970); City of Houston v. Jean, 517 S.W.2d 596, 599 (Tex.Civ. App.-Houston [1st Dist.] 1974, writ ref'd n.r.e.); see also Flores v. Sullivan, 112 S.W.2d 321, 323 (Tex.Civ.App.-San Antonio 1937), rev'd on other grounds, 134 Tex. 55, 132 S.W.2d 110 (Tex.1939); Powers, Judge and Jury in the Texas Supreme Court, 75 Tex. L.Rev. at 1703. Consequently, changing the duty analysis to include the traditional proximate cause foreseeability test allocates more power to trial judges, as well as appellate judges, to decide questions traditionally and properly reserved for the jury.

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

II. FORESEEABILITY

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

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

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

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

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

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

III. ANALYSIS

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

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

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

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

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

IV. THE DISSENT

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

V. CONCLUSION

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

Justice O'NEILL, dissenting, joined by Chief Justice PHILLIPS and Justice HANKINSON.

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

I

Foreseeability of Plaintiff

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

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

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

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

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

II

Foreseeability of Crime

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

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

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

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

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

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

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

To the extent Justice Baker bases his "similarity" distinction upon the manner in which Holder was assaulted, i.e., that she was lured into the garage from another location, it is immaterial, for we have long recognized that what must be foreseeable is not the exact sequence of events that produces the criminal conduct, but only the general danger. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Lofton v. Texas Brine Corp., 777 S.W.2d 384, 387 (Tex.1989). And to the extent his distinction is based upon the differing nature of other crimes in the area, I fail to see it. In the year Holder was assaulted, four sexual assaults, fifty-seven robberies, and twenty-seven aggravated assaults occurred in close proximity to the garage. Any distinction that might be drawn between Holder's assault and these prior violent crimes is inconsequential at best. Moreover, we stated in Timberwalk that "the frequency of previous crimes necessary to show foreseeability lessens as the similarity of the previous crimes to the incident at issue increases." See Timberwalk, 972 S.W.2d at 759. Conversely, the similarity of previous crimes necessary to show foreseeability should lessen, to a certain extent, as the frequency of the previous crimes increases. See Jardel Co., Inc. v. Hughes, 523 A.2d 518, 525 (Del.1987) (stating "the repetition of criminal activity, regardless of its mix, may be sufficient to place the property owners on notice of the likelihood that personal injury, not merely property loss, will result."). Here, any distinction that might be drawn between Holder's assault and the other violent crimes diminishes in light of their sheer number.

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

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

III

Holder's Status

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

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

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

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

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

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

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

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

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

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

PROSSER AND KEETON ON THE LAW OF TORTS § 60, at 413 (citations omitted).

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

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

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

Likewise, in City of El Paso v. Zarate, the plaintiff sued the City of El Paso after her two sons drowned in a muddy city pond. 917 S.W.2d 326, 329 (Tex.App.-El Paso 1996, no writ). The City claimed that the evidence was legally and factually insufficient to support the jury's finding that the boys were licensees and not trespassers. Id. at 330. The court of appeals disagreed, holding that the City gave its implied permission to use the premises because it failed to fence the area, put up barricades, or post warning signs, even though it knew people often entered the area to remove dirt and knew that four years earlier a child almost drowned in the pond. Id. at 331. Conversely, in Smither v. Texas Utilities Electric Company, the court classified the injured party as a trespasser, rather than a licensee, when the evidence showed that efforts were made to prevent access to the premises. 824 S.W.2d 693, 694-95 (Tex.App.-El Paso 1992, writ dism'd by agt.).

That is not to say that every tolerance of an intrusion will imply an owner's consent to enter the land. Instead, courts have articulated sound principles to determine the conditions under which consent may be inferred from the owner's tolerance of continued trespass. First, consent to enter is not implied unless the owner has actual knowledge that people have been entering the land. Cf. Hall v. Holton, 330 So.2d 81, 83 (Fla.Dist.Ct.App.1976); Gonzalez v. Broussard, 274 S.W.2d 737, 738 (Tex. App.-San Antonio 1954, writ ref'd n.r.e.). And implied consent may only be found when an owner with actual knowledge fails to take reasonable steps to prevent or discourage those persons from entering the land. Compare Zarate, 917 S.W.2d at 331-32 (upholding trial court's finding that plaintiff was a licensee and not a trespasser 673 *673 when defendant knew people used land but made no attempt to keep them out) with Longbottom v. Sim-Kar Lighting Fixture Co., 651 A.2d 621, 622-23 (Pa. Commw.Ct.1994) (holding that defendant school conclusively proved it did not consent to people climbing on roof when evidence showed school undertook various measures to prevent access). Finally, an owner need not take steps to evict known trespassers when doing so would be unduly burdensome or futile. See Boydston, 598 N.E.2d at 174 (quoting PROSSER AND KEETON ON THE LAW OF TORTS § 60, at 414: "[T]he mere toleration of continued intrusion where objection or interference would be burdensome or likely to be futile ... is not in itself and without more a manifestation of consent").

In the present case, the summary judgment evidence shows that Mellon knew people were using the garage on nights and weekends for drinking alcohol and sleeping, yet took no action to keep them away. There is some evidence that Mellon impliedly consented to public entry by failing to make any attempt to impede access to the garage or post no trespassing signs when it knew the public was in fact entering the garage and sleeping there. Mellon presented nothing to indicate that it would have been unduly burdensome or futile to attempt to keep the public from the garage, but rather stated only that the problem "wasn't noteworthy of any corrective action being taken." Based on this summary judgment record, I cannot conclude as a matter of law that Holder was a trespasser, rather than a licensee, on Mellon's premises. See Wiley v. National Garages, Inc., 22 Ohio App.3d 57, 488 N.E.2d 915, 923 (Ohio Ct.App.1984) (conferring licensee status on plaintiff who was assaulted after parking in defendant's parking garage on Sunday during "off hours" with owner's implied permission). Nor do I find any support for Justice Enoch's position that a license for the public to enter the garage on foot does not imply a license to enter by car.

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

a. the condition posed an unreasonable risk of harm;

b. defendant had actual knowledge of the danger;

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

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

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

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

[1] Holder sued for loss of consortium as next friend for her minor son.

[2] Holder did not request this Court to review the part of the court of appeals' judgment that was adverse to her. As a result, that portion of the court of appeals' judgment is undisturbed.

[3] This analysis is complementary, not contradictory, to the traditional premises liability categories. Therefore, this opinion should not be construed as supplanting the traditional premises liability analysis as it relates to a plaintiff's status.

[1] See Totten v. More Oakland Residential Housing, Inc., 63 Cal.App.3d 538, 134 Cal. Rptr. 29, 32 (1976).

[2] See, e.g., Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1074 (1941); Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S.W. 756, 757-58 (1888).

[3] See, e.g., Carlisle, 152 S.W.2d at 1075.

[4] See, e.g., Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302, 306 (1936).

[5] See, e.g., State v. Williams, 940 S.W.2d 583, 584 (Tex.1996); Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 603 (1954).

[6] 690 S.W.2d 546 (Tex.1985).

[7] See 675 S.W.2d 585, 587 (Tex.App.-Dallas 1984), rev'd, 690 S.W.2d 546 (Tex.1985).

[8] Nixon, 690 S.W.2d at 549 (emphasis added).

[9] Nixon v. Mr. Property Management Co., Inc., 675 S.W.2d 585, 586 (Tex.App.-Dallas 1984).

[10] Id.

[11] 5 S.W.3d at 672 (O'Neill, J., dissenting).

[12] See id. at 672.

[13] See id. at 672 (citing two Texas court of appeals cases that found that boys who swam frequently on property owned by governmental units were "gratuitous licensees" because the governmental units knew that boys were using the property for that purpose and took no steps to prevent it).

[14] See id.

[15] RESTATEMENT (SECOND) OF TORTS § 197(1) (1965).

[16] RESTATEMENT (SECOND) OF TORTS § 345(1).

[1] Although disclaiming an intent to supplant the traditional premises liability classifications, the plurality does just that by analyzing the case as one involving a negligent activity, as in Palsgraf, rather than a premises defect. Such an approach comes dangerously close to imposing a general negligence duty on landowners for premises defects. Far from espousing the dissent's position in Palsgraf, as the plurality charges, I follow well-established precedent that defines the duty of a landowner in the premises liability context.

[2] Substantial authority supports consideration of the nature and character of the premises as a factor in the foreseeability analysis. See Kendrick v. Allright Parking, 846 S.W.2d 453, 458 (Tex.App.-San Antonio 1992, writ denied) (recognizing the distinction between premises that are prone to attract criminal activity and those that are not); Castillo v. Sears, Roebuck & Co., 663 S.W.2d 60, 66 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.) (recognizing that to leave a washateria open and unattended all night may impose a duty on the business to provide some sort of security, a duty that may not apply to a department store in a mall with employees present); see also Isaacs v. Huntington Mem'l Hosp., 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653, 661 (1985) (stating that the "nature, condition and location of the defendant's premises" should be considered in the duty analysis); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 33, at 201 (5th ed.1984) (stating that the defendant has a heightened duty to protect the plaintiff from third party crimes when "an especial temptation and opportunity for criminal misconduct" exists); RESTATEMENT (SECOND) OF TORTS § 344 cmt. f (1965) (stating that "[i]f the place or character of [a] business ... is such that [the landowner] should reasonably anticipate careless or criminal conduct on the part of third persons," the landowner may have a duty to guard against it); id. § 302B, cmt. e, subcmt. G (1965) (noting that, when the defendant's property affords "a peculiar temptation or opportunity for intentional interference likely to cause harm," the defendant is required to guard against the intentional, or even criminal, conduct of others).

[3] In 1968, the Supreme Court of California abolished the traditional classifications and declared the ordinary negligence principles of foreseeable risk and reasonable care to be the standard for premises liability in California. See Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968), superseded in part by statute as explained in Calvillo-Silva v. Home Grocery, 19 Cal.4th 714, 80 Cal.Rptr.2d 506, 968 P.2d 65, 71-72 (1998). Courts in a number of jurisdictions later followed California in abandoning all classifications, including that of trespasser. See, e.g., Webb v. City and Borough of Sitka, 561 P.2d 731, 732-33 (Alaska 1977), superseded in part by statute as explained in Alaska v. Shanti, 835 P.2d 1225, 1227 (Alaska 1992); Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308, 311-15 (1971), superseded by statute as explained in Lakeview Assoc., Ltd. v. Maes, 907 P.2d 580, 582-83 (Colo.1995); Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 100 (D.C.Cir.1972), cert. denied, 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 399 (1973); Pickard v. City & County of Honolulu, 51 Haw. 134, 452 P.2d 445, 446 (1969); Keller v. Mols, 129 Ill.App.3d 208, 84 Ill.Dec. 411, 472 N.E.2d 161, 163 (Ill.1984) (abolishing distinctions only with regard to child entrants); Cates v. Beauregard Elec. Coop., Inc., 328 So.2d 367, 370-71 (La.1976), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976); Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491, 496 (1985) (construing statute to require duty of ordinary care to all); Moody v. Manny's Auto Repair, 110 Nev. 320, 871 P.2d 935, 942-43 (1994); Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631, 633-34 (1976); Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868, 871-72 (1976); Mariorenzi v. Joseph DiPonte, Inc., 114 R.I. 294, 333 A.2d 127, 130-33 (1975) (but see Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056, 1062 (R.I.1994) (restoring trespasser status)).

[4] By 1996, twenty-three jurisdictions had abolished some or all of the premises liability categories. See Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51, 54-55 (1996) (providing comprehensive analysis of how other jurisdictions have dealt with question of whether to abrogate traditional classifications). However, fourteen jurisdictions had expressly retained the categories, and another fourteen had continued to apply the common-law classifications without specifically addressing their continued validity. See id. at 55.

[5] At least fifteen jurisdictions have repudiated the licensee-invitee distinction while maintaining the limited-duty rule for trespassers. See Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882, 886-87 (1998) (abolishing licensee-invitee distinction but maintaining categories and citing the following cases as doing the same: Wood v. Camp, 284 So.2d 691 (Fla.1973); Jones v. Hansen, 254 Kan. 499, 867 P.2d 303 (1994); Poulin v. Colby College, 402 A.2d 846 (Me.1979); Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680, 705 A.2d 1144 (1998); Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973); Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972); Heins, 250 Neb. 750, 552 N.W.2d 51; Ford v. Bd. of County Comm'rs, 118 N.M. 134, 879 P.2d 766 (1994); O'Leary v. Coenen, 251 N.W.2d 746 (N.D.1977); Ragnone v. Portland Sch. Dist. No. 1J, 291 Or. 617, 633 P.2d 1287 (1981); Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056 (R.I.1994); Hudson v. Gaitan, 675 S.W.2d 699 (Tenn.1984); Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1 (1975); Clarke v. Beckwith, 858 P.2d 293 (Wyo.1993)). Six others have modified the common-law categories without abolishing them outright. Missouri and Kentucky, for example, recognize a duty of care to all entrants equal to that owed to invitees once the landowner is aware of the entrant's presence. See Heins, 552 N.W.2d at 54-55. Connecticut passed legislation modifying the common law status of a social guest from licensee to invitee. Id. at 55. Illinois eliminated the classifications by statute in 1984. Id. at 55 Indiana and Maine judicially altered the status of social guest from licensee to invitee. Id.

4.2.2.2.2 Lugtu v. California Highway Patrol ("The Pull-Over Case") 4.2.2.2.2 Lugtu v. California Highway Patrol ("The Pull-Over Case")

Why did the court find a duty to the plaintiff in this case?

110 Cal.Rptr.2d 528 (2001)26 Cal.4th 70328 P.3d 249

Cecelio LUGTU et al., Plaintiffs and Appellants,
v.
CALIFORNIA HIGHWAY PATROL et al., Defendants and Respondents.

No. S088116.

Supreme Court of California.

August 16, 2001.

529 *529 Law Office of Steven W. O'Reilly, Charles B. O'Reilly, Steven W. O'Reilly, Marina Del Rey; Haight, Brown & Bonesteel and Rita Gunasekaran, Santa Monica, for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Pamela Smith-Steward, Chief Assistant Attorney General, Margaret A. Rodda, Assistant Attorney General, Kristin G. Hogue and Karen 530 *530 M. Walter, Deputy Attorneys General, for Defendants and Respondents.

GEORGE, C.J.

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

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

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

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

I

On August 15, 1996, Richard Hedgecock, a CHP motorcycle patrol officer, was on 531 *531 duty in San Diego County on Highway 78, a limited access highway with three eastbound and three westbound lanes. The weather was dry, visibility was good, and traffic was moderate to fairly heavy. Shortly before 5:00 p.m., Hedgecock observed a Toyota Camry traveling westbound at an estimated speed of 85 miles per hour in the fast, or number one, lane. Hedgecock pulled his motorcycle along the right side of the Camry, sounded his siren to attract the attention of its driver, and motioned to the driver to stop in the center median area of the highway. As directed, the driver pulled the car over to the left and stopped the Camry in the center median of the highway. Hedgecock stopped 10 to 15 feet behind the Camry, close to a two-foot-high concrete barrier separating the westbound median area from traffic traveling in the eastbound direction, and turned off the motorcycle's lights.

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

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

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

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

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

In September 1998, after several depositions had been taken, defendants filed a motion for summary judgment, asserting that (1) Hedgecock did not owe a duty of reasonable care to plaintiffs, (2) as a matter of law, the accident was not foreseeable and Hedgecock's conduct was not a legal cause of plaintiffs' injuries, and (3) defendants 532 *532 were statutorily immune from liability. Defendants maintained that Hedgecock owed no duty of reasonable care to plaintiffs, because Hedgecock's alleged responsibility for plaintiffs' injuries arose merely from a failure to protect plaintiffs from injury (which defendants characterized as a negligent omission or nonfeasance), and because Hedgecock assertedly did not have the requisite special relationship with plaintiffs on which negligence liability for failure to provide such protection could be based. Defendants also contended that the undisputed facts established as a matter of law that Hedgecock was not negligent and that, in any event, his conduct was not a legal cause of plaintiffs' injuries. Finally, defendants argued that they were immune from liability under a number of statutory immunity provisions. (See Gov.Code, §§ 820.2, 821.6, 845.)

In support of their summary judgment motion, defendants submitted declarations of Hedgecock and Arnold Sidney, another CHP officer. Hedgecock stated in his declaration that he decided to stop the Camry in the 10-foot-wide, asphalt-surfaced center median because the distance that the Camry had to travel to the center median was considerably less than the distance to the right shoulder, and because he believed that stopping the vehicle in the center median posed a lesser hazard to him and to the Camry's occupants than stopping the vehicle on the right shoulder, which at that location was only approximately eight feet wide.^[2] Hedgecock indicated that at the time he directed the Camry's driver to pull into the center median, he was aware that there was traffic immediately behind him in the center lane and "quite a lot of traffic" in the righthand lane. Hedgecock also declared that CHP procedures gave him discretion whether to stop a traffic violator in the median area or on the right shoulder (the declaration stated that "[i]t is basically up to the officer to select a safe place to make a traffic stop"), and that he previously had stopped vehicles in that vicinity in both the center median and on the right shoulder. Finally, Hedgecock indicated that at the time he directed the Camry to pull into the center median, he had no knowledge of prior accidents having occurred within the center median in that vicinity.

In his separate declaration, Sidney stated that he had been a CHP officer since 1969, had been trained in CHP motorcycle patrol procedures, and had been instructed that a motorcycle patrol officer has discretion to make a traffic enforcement stop in the median area, particularly if the violator's vehicle is traveling in the fast lane. Sidney further stated that he subsequently had received specialized training and had become a certified motorcycle training officer, and that in 1991 he had trained Hedgecock in CHP motorcycle patrol procedures and had instructed Hedgecock that a traffic stop in the median area is appropriate if the violator is in the fast lane and if the officer believes a stop in the median area is safer. Sidney's declaration also explains in some detail why, in his opinion, a stop in the median area may be particularly appropriate when the stop is made by a motorcycle officer rather than by an officer in a patrol car.^[3] Finally, Sidney 533 *533 stated that based upon his review of Hedgecock's declaration, the accident report, photographs of the accident scene and involved vehicles, and the CHP Departmental Motorcycle Manual and CHP Officer Safety Manual, in his opinion Hedgecock had acted reasonably and with a proper exercise of discretion in directing Michael Lugtu to stop within the center median area of Highway 78.

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

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

Thompson stated in his declaration that he had been employed by the CHP from 1959 through 1982 both as a motorcycle and patrol car officer and as an accident investigator and supervisor, and in the latter capacity had been responsible for conducting more than 2,000 accident investigations. Thompson stated he was "extremely familiar" with the CHP Officer Safety Manual in effect at the time of the accident, and that the manual, and all CHP motorcycle and patrol car training, "mandate[s] that routine traffic enforcement stops on California freeways shall be made by directing all violators 534 *534 over to the right shoulder for purposes of violator and officer protection." Thompson further stated that "[s]topping a violator in the center median lane of a California freeway is not permitted by the [CHP] Officer Safety Manual as this creates a substantial risk of harm to the violator as well as the patrol officer due to the increased speed of vehicles in the inside/fast or number one lane of travel." Thompson's declaration further explained in this regard that "[t]he center median lane is for emergency vehicles only and users of the freeway do not expect to see a routine traffic stop being enforced in the center median lane. The sight of a traffic enforcement stop being conducted in the center median startles users of the freeway in the number one or fast lane of traffic causing them to lose control of their vehicles."

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

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

"3. ENFORCEMENT TECHNIQUES.

"a. Stopping the Violator.

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

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

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

"(a) The moment the violator looks and identifies the patrol unit, the officer should apply the brakes slightly. No matter how the fast the violator's reflexes are, the 535 *535 officer then has control of the situation and can slow down as necessary.

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

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

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

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

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

Defendants thereafter filed a reply to the opposition, attaching additional portions of the CHP Officer Safety Manual that defendants maintained (1) demonstrated that the manual should not be interpreted, as Thompson had suggested, as mandating that all traffic stops on a highway be made on the right shoulder rather than the center median, but rather should be interpreted to grant a CHP officer discretion in this matter, and (2) further supported their contention that Hedgecock's conduct was reasonable and not negligent.^[5] 536 *536 Defendants also submitted additional excerpts from Sidney's deposition, in which Sidney stated that when the CHP Officer Safety Manual uses the word "should" rather than "shall," the manual "is leaving the officer with an option and his best judgment to do what the situation may call [for]."

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

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

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

II

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

Under the provisions of the California Tort Claims Act, "a public employee is liable for injury caused by his act or omission to the same extent as a private person," except as otherwise specifically provided by statute. (Gov.Code, § 820, subd. (a), italics added.) In addition, the Tort Claims Act further provides that "[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would . . . have given rise to a cause of action against that employee," unless "the employee is immune from liability." (Gov. Code, § 815.2, subds.(a), (b), italics added.) Because it is undisputed that Hedgecock was acting within the scope of his employment when he engaged in the conduct at 537 *537 issue in this case, the initial question of duty, and defendants' potential liability for Hedgecock's conduct, turns on ordinary and general principles of tort law.

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

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

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

Consistent with the basic tort principle recognizing that the general duty of due care includes a duty not to expose others to an unreasonable risk of injury at the 538 *538 hands of third parties, past California cases uniformly hold that a police officer who exercises his or her authority to direct another person to proceed to—or to stop at—a particular location, owes such a person a duty to use reasonable care in giving that direction, so as not to place the person in danger or to expose the person to an unreasonable risk of harm. Thus, for example, in Williams v. State of California (1983) 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, this court recognized that although law enforcement officers, like other members of the public, generally do not have a legal duty to come to the aid of a person, in carrying out routine traffic enforcement duties or investigations, a duty of care does arise when an officer engages in "an affirmative act which places the person in peril or increases the risk of harm as in McCorkle v. Los Angeles (1969) 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453, where an officer investigating an accident directed the plaintiff to follow him into the middle of the intersection where the plaintiff was hit by another car." (34 Cal.3d at p. 24, 192 Cal.Rptr. 233, 664 P.2d 137, italics added.)

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

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

III

Although defendants argued in their summary judgment motion that a law enforcement officer in making a traffic stop on a highway owes no duty of care to the persons he or she stops, in their briefs before this court defendants have modified their position and now ask this court to adopt a rule that "the duty of a law enforcement officer who has made a traffic enforcement stop entirely off of the travel lanes of a freeway [does] not extend to 539 *539 liability for a traffic collision in which a third party's vehicle subsequently strikes the car stopped by the officer."

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

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

Moreover, defendants are unable to point to any legislative or administrative pronouncement accepting their claim that considerations of "public policy" support the rule they propose. Defendants' reliance upon this court's decision in Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, 25 Cal.Rptr.2d 97, 863 P.2d 167, is misplaced. In that case, we relied upon "the dense layer of state and federal statutes and regulations that control virtually all aspects of the marketing of [the defendant drug manufacturer's] products" (id. at p. 548, 25 Cal.Rptr.2d 97, 863 P.2d 167), as well as our assessment that "[d]efining the circumstances under which warnings or other information should be provided in a language other than English is a task for which legislative and administrative bodies are particularly well-suited" (id. at p. 550, 25 Cal.Rptr.2d 97, 863 P.2d 167), in concluding that a drug manufacturer satisfies its duty to warn of adverse side effects by providing such warnings in English, as 540 *540 required by the applicable federal and state regulations. In the present case, by contrast, no legislative, administrative, or other official pronouncement indicates that an officer fully satisfies his or her duty of due care in making a traffic stop so long as the officer stops the vehicle off the travel lane of a freeway, regardless of the configuration of the area in which the stop is made or the ready availability of alternative, safer sites in which the stop could have been made.^[9]

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

In considering the effect that the provisions of the CHP Officer Safety Manual should have in the present case, it is important to keep in mind the appropriate role that the provisions of such a safety manual may play in a negligence action under California law. Under Evidence Code section 669.1,^[10] the provisions of the CHP Officer Safety Manual may not properly be viewed as establishing the applicable standard of care, but they may be considered by the trier of fact in determining whether or not an officer was negligent in a particular case. The manual cannot be read to establish the standard of care, because there is no indication that the 541 *541 manual was adopted pursuant to the state (or federal) Administrative Procedure Act. Absent such adoption, Evidence Code section 669.1 forbids the use of the manual to establish the presumption of negligence that otherwise would arise under Evidence Code section 669. At the same time, Evidence Code section 669.1 specifies that this statute is not intended to affect the admissibility of such a manual into evidence, and thus it is clear that the manual may be considered as evidence on the question of negligence. (See, e.g., Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 809, 148 Cal.Rptr. 22, 582 P.2d 109.)^[11]

Because the relevant provisions of the CHP Officer Safety Manual submitted by plaintiffs indicate, at the least, a strong preference for stopping a vehicle on the right shoulder rather than in the center median, and advise officers to consider carefully whether to require a motorist to move the vehicle from the center median even when the driver stops on the center median on his or her own volition, we cannot accept defendants' assertion that considerations of public policy support the adoption of a standard of care under which a CHP officer never could be found to have violated the duty of care so long as he or she stops a vehicle off the travel lanes of a freeway, without regard to any other relevant factor that may affect the reasonableness of the officer's action. Instead, as in negligence cases generally, we believe that the applicable standard of care by which the officer's conduct must be measured in this context is simply that "of a reasonably prudent person under like circumstances." (Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, 546-547, 25 Cal.Rptr.2d 97, 863 P.2d 167, and cases cited.)

In arguing that considerations of public policy justify the adoption of the narrow standard of care that they propose, defendants apparently fear that the application of ordinary negligence principles in the present context will impair the ability of CHP officers to carry out their responsibilities and will result in an inordinate financial liability to the state, because juries will be too ready to second-guess police officers in the exercise of their discretion in making traffic stops. To the extent that past cases provide any guidance, this limited precedent does not support defendants' prediction. As noted above, in Whitton v. State of California, supra, 98 Cal.App.3d 235, 159 Cal.Rptr. 405—probably the closest California case on point—the jury returned a verdict against a plaintiff who had been injured by a drunk driver as she was stopped for a traffic violation. The jury found that the CHP officers who had stopped the plaintiff's car (on the right shoulder of the highway) and, after detecting alcohol on the plaintiff's breath, conducted a sobriety test on the plaintiff as she stood between her vehicle and the patrol car, were not negligent. As Whitton demonstrates, the various considerations 542 *542 that an officer is required to take into account in deciding when and where to make a traffic stop, and how to conduct an investigation after the stop, are not beyond the understanding or experience of most jurors, and there is little reason to suspect that juries in general will not grant an officer engaged in law enforcement duties appropriate leeway in assessing the reasonableness of the officer's conduct.

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

IV

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

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

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

First, the provisions of the CHP Officer Safety Manual constituted evidence from which a jury could find that stops in the center median, as a general matter, create a greater risk of injury than stops on the right shoulder, and that, absent unusual circumstances, an officer in the exercise of reasonable care ordinarily should stop a vehicle on the right shoulder. As discussed above, although under Evidence Code section 669.1 a jury determination that Hedgecock had violated the provisions of the CHP Officer Safety Manual would not raise a presumption of negligence, that statute does not preclude a 543 *543 jury from taking into account the provisions of the manual in determining whether Hedgecock was or was not negligent under the circumstances of this case.

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

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

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

544 *544 V

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

Defendants' contention lacks merit. It is well established that when a defendant's negligence is based upon his or her having exposed the plaintiff to an unreasonable risk of harm from the actions of others, the occurrence of the type of conduct against which the defendant had a duty to protect the plaintiff cannot properly constitute a superseding cause that completely relieves the defendant of any responsibility for the plaintiffs injuries. As the commentary to the Restatement Second of Torts explains: "The problem which is involved in determining whether a particular intervening force is or is not a superseding cause of the harm is in reality a problem of determining whether the intervention of the force was within the scope of the reasons imposing the duty upon the actor to refrain from negligent conduct. If the duty is designed, in part at least, to protect the other from the hazard of being harmed by the intervening force, or by the effect of the intervening force operating on the condition created by the negligent conduct, then that hazard is within the duty, and the intervening force is not a superseding cause." (Rest.2d Torts, § 281, com. h, p. 8; see, e.g., Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 769-770, 91 Cal.Rptr. 745, 478 P.2d 465; McEvoy v. American Pool Corp. (1948) 32 Cal.2d 295, 298-299, 195 P.2d 783.) As further explained in Soule v. General Motors (1994) 8 Cal.4th 548, 34 Cal.Rptr.2d 607, 882 P.2d 298, for an intervening act properly to be considered a superseding cause, the act must have produced "harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold 545 *545 him responsible." (Soule, at p. 573, fn. 9, 34 Cal.Rptr.2d 607, 882 P.2d 298.)

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

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

VI

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

KENNARD, J., WERDEGAR, J. and CHIN, J., concur.

Dissenting Opinion by BROWN, J.

I respectfully dissent.

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

Like the existence of a legal duty, the scope of that duty is a question of law for the court. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477, 110 Cal.Rptr.2d 370, 378, 28 P.3d 116, 123 (Merrill).) In discussing the scope of Officer Hedgecock's duty, the majority characterizes the issue as whether an officer "always satisfies" the duty of care by stopping a traffic violator "at any location off of the travel lanes of a highway." (Maj. opn., ante, 110 Cal. Rptr.2d at p. 539, 28 P.3d at p. 258.) 546 *546 Relying exclusively on Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 25 Cal.Rptr.2d 97, 863 P.2d 167 (Ramirez), the majority answers "no" because no legislative or administrative pronouncements support such a rule (maj. opn., ante, at pp. 539-541, 28 P.3d at pp. 258-259), and because the California Highway Patrol Officer Safety Manual (Safety Manual) indicates "a strong preference for stopping a vehicle on the right shoulder rather than in the center median" (maj. opn., ante, at p. 540, 28 P.3d at p. 257). The majority, however, engages in faulty analysis, and, in doing so, misstates the issue before the court. The issue is not whether an officer satisfies his duty of care in every case by stopping a traffic violator off the lanes of a highway. Rather, the issue is whether an officer satisfies his duty of care to the passengers of a car under the uncontested circumstances of this case when he stops their car in the median area. The answer should be "yes."

As an initial matter, the majority mistakenly assumes that the scope of a defendant's duty cannot depend on the particular facts of a case. "In most cases, courts have fixed no standard of care for tort liability more precise than that of a reasonably prudent person under like circumstances." (Ramirez, supra, 6 Cal.4th at p. 546, 25 Cal.Rptr.2d 97, 863 P.2d 167.) "[H]owever . . . in particular situations a more specific standard may be established by judicial decision, statute or ordinance." (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 824, 59 Cal.Rptr.2d 756, 927 P.2d 1260.) Thus, "`each case must be considered on its own facts to determine'" the scope of the legal duty owed by a defendant to a class of plaintiffs "`to refrain from subjecting them to'" a given risk. (Dillon v. Legg (1968) 68 Cal.2d 728, 742, 69 Cal.Rptr. 72, 441 P.2d 912 (Dillon), italics added, quoting Hergenrether v. East (1964) 61 Cal.2d 440, 445, 39 Cal.Rptr. 4, 393 P.2d 164.) Indeed, where the facts are undisputed, we have regularly affirmed summary judgment for a defendant even though the defendant owed a general duty of care to the plaintiff, because that general duty did not require the defendant to act any differently under the facts of the case. (See, e.g., Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1189-1199, 91 Cal.Rptr.2d 35, 989 P.2d 121 (Sharon P.); Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 477-483, 63 Cal.Rptr.2d 291, 936 P.2d 70 (Parsons); Thompson v. County of Alameda (1980) 27 Cal.3d 741, 753-758, 167 Cal.Rptr. 70, 614 P.2d 728 (Thompson); cf. Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 616, 76 Cal.Rptr.2d 479, 957 P.2d 1313 [affirming summary judgment because there was "no triable issue of fact concerning the scope of defendant's duty under Rest.2d Torts, § 324A].)

The majority's second mistake lies in its exclusive focus on legislative or administrative pronouncements in formulating the standard of care. When determining the scope of a defendant's legal duty under the particular facts of a case, courts do not always rely on legislative or administrative pronouncements, but weigh all relevant public policy considerations. (See Merrill, supra, 26 Cal.4th at p. 477, 110 Cal. Rptr.2d at 378, 379, 28 P.3d at 123, 124.) As part of the weighing process, "`foreseeability of risk [is] of . . . primary importance....'" (Dillon, supra, 68 Cal.2d at p. 739, 69 Cal.Rptr. 72, 441 P.2d 912, italics added, quoting Grafton v. Mollica (1965) 231 Cal.App.2d 860, 865, 42 Cal.Rptr. 306.) Foreseeability for purposes of the duty analysis, however, is different from foreseeability "in the fact-specific sense in which we allow juries to consider [the] question." (Parsons, supra, 15 Cal.4th at 547 *547 p. 476, 63 Cal.Rptr.2d 291, 936 P.2d 70.) "[A] court's task—in determining `duty'— is not to decide whether a particular plaintiffs injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed." (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

After determining the foreseeability of harm, courts typically balance foreseeability against other relevant policy considerations to determine the scope of a defendant's duty "within the factual context of a specific case." (Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 506, 238 Cal.Rptr. 436 (Lopez); see also Parsons, supra, 15 Cal.4th at p. 476, 63 Cal.Rptr.2d 291, 936 P.2d 70.) Relevant policy considerations include "the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.) "When public agencies are involved," courts may also consider "`the extent of [the agency's] powers, the role imposed upon it by law and the limitations imposed upon it by budget.'" (Thompson, supra, 27 Cal.3d at p. 750, 167 Cal.Rptr. 70, 614 P.2d 728, quoting Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8, 31 Cal.Rptr. 847.) This lengthy list of policy considerations, however, is neither exhaustive (Lopez, at p. 506, 238 Cal.Rptr. 436), nor mandatory (see, e.g., Sharon P., supra, 21 Cal.4th at pp. 1191-1199, 91 Cal. Rptr.2d 35, 989 P.2d 121 [analyzing legal duty without considering all the Rowland factors]; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678-680, 25 Cal.Rptr.2d 137, 863 P.2d 207 (Ann M.) [same]).

Thus, where the relevant facts are undisputed, a court may define a more specific standard of care than the reasonably prudent person standard if the public policy considerations warrant it. In such cases, the court may be able to decide the case on summary judgment because the definition of a more specific standard of care often resolves an interrelated issue: whether a defendant breached his legal duty of care. "`[T]he question whether an act or omission will be considered a breach of duty . . . necessarily depends upon the scope of the duty imposed. . . .'" (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1211, 69 Cal.Rptr.2d 370, quoting Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751, 33 Cal. Rptr.2d 732.) If a defendant's conduct satisfies the standard of care defined by the court as a matter of law under the undisputed facts of the case, then the defendant, by definition, has not breached any legal duty. Indeed, some of our early decisions rely on foreseeability of harm and other policy considerations to find no breach of a legal duty as a matter of law. (See, e.g., La Manna v. Stewart (1975) 13 Cal.3d 413, 428-429, 118 Cal.Rptr. 761, 530 P.2d 1073 [a pedestrian had no duty to continuously look "in the direction of potential oncoming traffic" under the facts and could not breach her legal duty because the imposition of such a duty would have placed her in even greater danger]; Schmitt v. Henderson (1969) 1 Cal.3d 460, 465-466, 82 Cal.Rptr. 502, 462 P.2d 30 [a pedestrian had no duty "to be alert to 548 *548 danger approaching him from behind" under the facts and could not breach his legal duty because there was no foreseeability of harm]; see also Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1077-1078, 91 Cal.Rptr. 319 [balancing "the likelihood of harm, and the gravity of the harm if it happens . . . against the burden of precaution which would be effective to avoid the harm" under the facts of the case may lead to a finding that the defendant did not breach his duty of care as a matter of law (italics omitted)].)

A survey of our more recent negligence cases further illustrates these principles at work. In Thompson, the County of Alameda released a juvenile offender into a neighborhood without warning police, other parents in the neighborhood or the juvenile's mother. The released offender later murdered the plaintiffs' son. (Thompson, supra, 27 Cal.3d at p. 746, 167 Cal.Rptr. 70, 614 P.2d 728.) Although we recognized that the county had a duty "to exercise reasonable care to protect all of its citizens" (id. at p. 753,167 Cal.Rptr. 70, 614 P.2d 728), we concluded that this duty did not include a duty to warn under the particular facts of the case (id. at pp. 756-758, 167 Cal.Rptr. 70, 614 P.2d 728). We reached this conclusion "based in part on policy considerations and in part upon an analysis of `foreseeability' within the context of this case." (Id. at p. 753, 167 Cal.Rptr. 70, 614 P.2d 728, italics added.) We further acknowledged that the county may have had a duty to warn under different facts, i.e., if there had been "a prior threat to a specific identifiable victim." (Id. at p. 758, 167 Cal.Rptr. 70, 614 P.2d 728.) Because the county lacked such a duty under the facts of this case and therefore could not, as a matter of law, breach its general duty of care, we dismissed the plaintiffs' negligence claim. (See ibid.)

More recently, we affirmed summary judgment for a defendant after defining a more specific standard of care under the particular facts of that case based on public policy considerations. In Parsons, the plaintiff claimed that the defendant's negligent operation of a garbage truck caused her to fall off her horse. (Parsons, supra, 15 Cal.4th at p. 463, 63 Cal.Rptr.2d 291, 936 P.2d 70.) Although we held that the defendant owed certain common law duties to the plaintiff, we concluded that these duties did not include a duty to guard against frightening horses under the circumstances presented. (Id. at p. 477, 63 Cal.Rptr.2d 291, 936 P.2d 70.) Thus, the defendant, as a matter of law, did not breach its duty of care to the plaintiff. (Id. at p. 485, 63 Cal.Rptr.2d 291, 936 P.2d 70.) We reached this conclusion by balancing the foreseeability of harm against relevant public policy considerations, including "the social utility of the defendant's conduct, and the consequences to the community of imposing a duty to guard against frightening [horses]." (Id. at p. 476, 63 Cal.Rptr.2d 291, 936 P.2d 70.) We, however, acknowledged that the defendant could have been negligent for failing to guard against frightening horses under different factual circumstances. (See id. at pp. 477-478, 63 Cal.Rptr.2d 291, 936 P.2d 70.)

We have also applied these same principles in affirming summary judgment for defendants in the premises liability context. In Sharon P., an assailant attacked the plaintiff in an underground parking garage. The plaintiff sued the owner of the premises and the operator of the parking garage, alleging, among other things, that the defendants negligently failed to provide adequate security. (Sharon P., supra, 21 Cal.4th at p. 1185, 91 Cal. Rptr.2d 35, 989 P.2d 121.) Although we acknowledged that the defendants had a duty to protect the plaintiff "`against foreseeable 549 *549 criminal acts of third parties'" (id. at p.1189, 91 Cal.Rptr.2d 35, 989 P.2d 121, quoting Ann. M., supra, 6 Cal.4th at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207), we affirmed summary judgment for the defendants (Sharon P., at p. 1199, 91 Cal. Rptr.2d 35, 989 P.2d 121). To reach this result, we balanced the foreseeability of the attack against the efficacy of additional security measures and the resulting burden on the defendants. (See id. at pp. 1189-1199, 91 Cal.Rptr.2d 35, 989 P.2d 121.) Based on this balancing, we concluded that the defendants had no duty to provide additional security measures under the undisputed facts. (Ibid.) Thus, the defendants, as a matter of law, did not breach their general duty of care to the plaintiff. (See id. at p. 1199, 91 Cal. Rptr.2d 35, 989 P.2d 121.) We, however, implicitly recognized that a legal duty to provide additional security measures might exist under different facts, i.e., if there had been "prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location." (Ibid.; see also Ann M., supra, 6 Cal.4th at pp. 679-680, 25 Cal.Rptr.2d 137, 863 P.2d 207 [the defendant had no duty to provide security guards absent notice of prior similar incidents].)

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

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

These principles establish that the foreseeability of harm created by Officer Hedgecock's decision to stop plaintiffs in the median area was minimal to nonexistent. The relevant facts are undisputed. The weather was dry and visibility was good. The car occupied by plaintiffs was parked well within the median area. The median area was wider than the right shoulder, and the right shoulder was adjacent to a downward slope. Contrary to the general pronouncements of plaintiffs' expert, no admissible evidence in the record even suggests that a car parked in this particular median area was in fact less visible than a car parked on the right shoulder or that the driver of the truck that hit plaintiffs was in fact distracted by the presence of a vehicle in the median area. Although 550 *550 plaintiffs' expert observed that traffic in the lane closest to the median generally travels faster than traffic in the lane closest to the right shoulder, the record establishes that traffic in the number one lane was travelling only minimally faster than traffic in the other two lanes. Moreover, traffic in all lanes was moderately heavy. Finally, Officer Hedgecock had stopped traffic violators in the median area on numerous occasions without incident, and there was no evidence that accidents were more likely in the median area than on the right shoulder. Under these facts, the risk of harm to plaintiffs was no different than the risk of harm inherent in any traffic stop. Indeed, stopping plaintiffs on the right shoulder as suggested by the Safety Manual arguably would have increased the likelihood of harm to plaintiffs because they would have had to cross two busy lanes of traffic to reach the right shoulder. Holding that Officer Hedgecock might have breached his legal duty to plaintiffs under these circumstances creates the type of "`Monday-morning quarterbacking'" that negligence law should avoid. (See Dutton v. City of Pacifica, supra, 35 Cal.App.4th at p. 1175, 41 Cal. Rptr.2d 816, quoting Williams v. State of California (1983) 34 Cal.3d 18, 30, 192 Cal.Rptr. 233, 664 P.2d 137 (conc. and dis. opn. of Mosk, J.).)

The countervailing policy considerations also strongly support such a conclusion. By enacting numerous statutes relating to traffic safety (see, e.g., Veh.Code, §§ 21000-23336), and by making police officers statutorily immune for their decision to stop a suspected traffic violator (Gov. Code, § 820.2; Sparks, supra, 64 Cal. App.3d at p. 596, 134 Cal.Rptr. 684), the Legislature has established a strong public policy in favor of enforcing the rules of the road. Indeed, rigorous enforcement of our traffic laws serves a vital public function by making "automobile driving less dangerous." (Breithaupt v. Abram (1957) 352 U.S. 432, 439, 77 S.Ct. 408, 1 L.Ed.2d 448.) Where, as here, the location of the stop was no more dangerous than any other available location, holding that an officer could breach his legal duty by stopping a traffic violator in one of those locations would create a "Catch-22" situation. No matter where the officer stopped the violator, he would arguably create a risk of harm and open himself and his employer to liability. Indeed, the majority carefully avoids any suggestion that Officer Hedgecock could have escaped liability by stopping plaintiffs on the right shoulder and offers no alternative location for the stop. If officers may incur liability no matter where they stop a traffic violator, they have less incentive to make stops, resulting in the reduced enforcement of our traffic laws. Rather than impede such police work, I would conclude that Officer Hedgecock, as a matter of law, satisfied his duty of care to plaintiffs under the circumstances presented here. (See Parsons, supra, 15 Cal.4th at p. 476, 63 Cal. Rptr.2d 291, 936 P.2d 70 [holding that the social utility of defendant's conduct overrode the foreseeability of harm].)

The Safety Manual does not dictate a contrary conclusion. Although the manual states a preference for stopping traffic violators on the right shoulder, it allows for officer discretion. For example, the manual's consistent use of the word "should"— rather than "shall"—implies that officers have discretion when deciding where to conduct a traffic enforcement stop. The manual also states that an officer, "if possible," should "ensure a violator does not . . . park in the median divider." Finally, the manual specifically addresses the situation where "a violator stops in the center divider" and states that the officer must decide whether the hazards of conducting the stop in the center median are greater than the hazards of moving the 551 *551 violator across multiple freeway lanes. Although this provision ostensibly covers situations where the violator stops in the median on his own volition, it implies that officers must do the same calculation when deciding where to stop a violator travelling in the lane farthest from the right shoulder. Because the manual does not conflict with my conclusions above, the admissibility of the manual as evidence of the standard of care (see Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 588, 86 Cal. Rptr. 465, 468 P.2d 825), does not preclude us from affirming summary judgment in defendants' favor on the uncontroverted facts.

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

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

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

BAXTER, J., concurs.

[1] The California Department of Transportation also was named as a defendant in a cause of action alleging a dangerous condition of public property, but plaintiffs later voluntarily dismissed the department as a defendant.

[2] Hedgecock's declaration further disclosed that the right shoulder was asphalt surfaced and 7.8 feet wide and was adjacent to a concrete dike, which was next to a downhill slope.

[3] Sidney's declaration states in this regard: "[M]otor vehicle drivers may not key in to the presence of the patrol motorcycle as well as drivers do to the presence of a patrol car; the throttle controlling speed of a patrol motorcycle is on the right handlebar grip; if the officer takes his or her right hand off the throttle to signal traffic behind the motorcycle and violator that the enforcement stop will take place on the right shoulder, the motorcycle will slow down, exposing the violator and the motorcycle patrol officer to potential danger from traffic behind them; although the vehicle immediately behind the motorcycle may slow in response to the slowing of the motorcycle, traffic further back may not see the motorcycle slowing, causing an accordion effect."

[4] As noted above, in addition to the declaration of Thompson and the passage from the CHP Officer Safety Manual, plaintiffs submitted a copy of the accident report and very brief excerpts of the depositions of Hedgecock and Sidney. In the excerpt from the Hedgecock deposition, Hedgecock acknowledged that after the incident there were discussions in his CHP office "concerning whether it was prudent to pull traffic over to the right versus left" and that someone in the discussion had indicated "something to the effect, `Oh man, you always have to go to the right, never to the left.'" In the excerpt from the Sidney deposition, Sidney agreed that the traffic enforcement technique provisions of chapter 10 of the CHP Officer Safety Manual are applicable both to patrol cars and motorcycles.

[5] The additional excerpts of the CHP Officer Safety Manual submitted with defendants' reply included the following passage:

"FOREWORD

"This manual was developed in the interest of officer safety to assist members in performing their duties in a safe and professional manner. [¶] The policies and procedures set forth have been established for the purpose of promoting the safety of the enforcement officer through the proper use of safety equipment and enforcement procedures. [¶] The officer's safety is of the utmost concern and proper use of the techniques depicted in this manual should prove a valuable aid in minimizing injuries. [¶] . . . [¶]

"APPREHENSION OF THE MISDEMEANOR VIOLATOR

"1. MAKING THE STOP.

"a. Quick Apprehension. Upon observing a violation, the officer should stop the violator's vehicle as soon as possible. Many problems may be generated when the officer waits too long before stopping the violator.

"(1) The farther the violator is pursued, the longer the officer is exposed to the hazard of high speed and his/her safety is greatly affected. [¶] . . . [¶]

"(4) In the case of speed violations, among others, the defense can raise the point that if the speed was so dangerous, why did the officer permit the violator to continue for some distance rather than stop him/her promptly.

"(b) Choosing a Safe Location. . . .

"(1) The officer should pre-select a safe location to stop the violator, keeping in mind his/her own safety as well as that of the violator and the general public. [¶] . . . [¶]

"4. SUMMARY. Each traffic stop presents a slightly different set of circumstances to the officer. For overall officer safety, it is best to remember the basic concepts presented above rather than memorizing one method and performing each stop exactly alike. The officer who has a plan and is flexible to meet each situation is the officer who survives." (Original underlining.)

[6] Defendants' petition for review did not challenge the Court of Appeal's determination that the statutory immunity provisions relied upon by defendants in their summary judgment motion do not apply to the conduct of Hedgecock at issue in this case, and we thus do not address the issue of immunity.

[7] Section 302 of the Restatement Second of Torts provides: "A negligent act or omission may be one which involves an unreasonable risk of harm to another through either [¶] (a) the continuous operation of a force started or continued by the act or omission, or [¶] (b) the foreseeable action of the other, a third person, an animal, or a force of nature.''

Section 302A provides: "An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person."

[8] As the court in Ramirez explained: "Issues such as this, which concern the scope of an established duty, are resolved by reference to the governing standard of care: `Once the existence of a legal duty is found, it is the further function of the court to determine and formulate the standard of conduct to which the duty requires the defendant to conform.' (Rest.2d Torts, § 328B, com. f., p. 153.)" (Ramirez v. Plough, Inc., supra, 6 Cal.4th at p. 546, 25 Cal.Rptr.2d 97, 863 P.2d 167.)

[9] Indeed, as the court explained in Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, 547-548, 25 Cal.Rptr.2d 97, 863 P.2d 167, even when a defendant has complied with an applicable statute or regulation, "[c]ourts have generally not looked with favor upon the use of statutory compliance as a defense to tort liability. The Restatement Second of Torts summarizes the prevailing view in these terms: `Where a statute, ordinance or regulation is found to define a standard of conduct for purposes of negligence actions, . . . the standard defined is normally a minimum standard, applicable to the ordinary situations contemplated by the legislation. This legislative or administrative minimum does not prevent a finding that a reasonable [person] would have taken additional precautions where the situation is such as to call for them.' [Citations.]" (See also 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 756, p. 96, and cases cited.)

[10] Evidence Code section 669.1 provides in full: "A rule, policy, manual, or guideline of state or local government setting forth standards of conduct or guidelines for its employees in the conduct of their public employment shall not be considered a statute, ordinance, or regulation of that public entity within the meaning of Section 669, unless the rule, manual, policy, or guideline has been formally adopted as a statute, as an ordinance of a local governmental entity in this state empowered to adopt ordinances, or as a regulation by an agency of the state pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code), or by an agency of the United States government pursuant to the federal Administrative Procedure Act (Chapter 5 (commencing with Section 5001) of Title 5 of the United States Code). This section affects only the presumption set forth in Section 669, and is not otherwise intended to affect the admissibility or inadmissibility of the rule, policy, manual, or guideline under other provisions of law."

[11] The legislative history of Evidence Code section 669.1 confirms that the Legislature contemplated that the statute would permit a jury or other trier of fact to take the provisions of such a safety manual into account in determining in a particular case whether a public employee was negligent or not. (See Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1598 (1985-1986 Reg. Sess.) as amended Aug. 20, 1987, p. 4 ["Under the bill, a violation of a rule or manual regarding a public employee's conduct would remain admissible as evidence of the employee's negligence. However, it would no longer give rise to a presumption of negligence."]; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1598 (1985-1986 Reg. Sess.) as amended Aug. 20, 1987, p. 3 ["Under this bill a violation of any state or local rule, policy, manual, or guideline not `formally adopted' may continue to be admissible as evidence of an employee's negligence. However, the violation will not give rise to a presumption of negligence."].)

[12] In response to the latter argument, defendants could counter that Hedgecock's actions were reasonable in light of the CHP Officer Safety Manual's direction, in a separate provision, that "[u]pon observing a violation, the officer should stop the violator's vehicle as soon as possible." (See, ante, 110 Cal. Rptr.2d pp. 535-536, fn. 5, 28 P.3d at p. 255, fn. 5.)

[13] The dissenting opinion misapplies the standard of care concept in maintaining that a court, in determining the applicable standard of care, properly looks to such case-specific facts as whether "the weather was dry and visibility was good," whether the traffic was light or heavy in the various lanes of the highway at the time of the incident, or whether the particular officer had or had not made similar traffic stops in the past. (See dis. opn. of Brown, J., post, 110 Cal.Rptr.2d at pp. 549-550, 28 P.3d at pp. 266-267.) That approach to the standard of care issue effectively would eliminate the role of the jury in negligence cases, transforming the question of whether a defendant breached the duty of care under the facts of a particular case into a legal issue to be decided by the court under the standard of care rubric. The dissent's conclusion is more accurately characterized as a determination that the present record establishes, as a matter of law, that Officer Hedgecock was not negligent. As explained above, however, we believe that in light of the conflicting evidence and declarations, the record before the trial court on the summary judgment motion clearly raised a triable issue for the jury's determination on the question of whether Officer Hedgecock was or was not negligent under the circumstances of this case.

The dissent also criticizes the opinion's treatment of the CHP Officer Safety Manual. (See dis. opn. of Brown, J., post, at pp. 550-551, 28 P.3d at pp. 267-268.) As explained above, however, the proper role that such a safety manual plays in a negligence case is governed by the provisions of Evidence Code section 669.1, and our consideration of the appropriate use of the manual follows the language and legislative history of that statute. (See, ante, pp. 540-541 & fns. 10, 11, 28 P.3d at pp. 259-260 & fns. 10, 11.) The dissent's position is inconsistent with the use that the Legislature contemplated for such a manual.

4.2.2.2.3 Price v. E.I. DuPont de Nemours & Co. ("The Take-Home Asbestos Case") 4.2.2.2.3 Price v. E.I. DuPont de Nemours & Co. ("The Take-Home Asbestos Case")

What is the distinction between misfeasance and nonfeasance and how does it play into determining the question of duty?

26 A.3d 162 (2011)

Patricia PRICE and Bobby Price, her husband, Plaintiffs Below, Appellants,
v.
E.I. DuPONT DE NEMOURS & COMPANY, Defendant Below, Appellee.

No. 719, 2009.

Supreme Court of Delaware.

Submitted: May 4, 2011.Decided: July 11, 2011.

163 *163 Thomas C. Crumplar (argued) and Jordan J. Ponzo, Jacobs & Crumplar, P.A., Wilmington, Delaware for appellants.

John C. Phillips, Jr., Goldman & Spence, P.A., Wilmington, Delaware for appellee.

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS, Justices and KUHN, Chief Judge^[*] constituting the court en banc.

STEELE, Chief Justice for the Majority:

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

I. FACTS AND PROCEDURAL HISTORY

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

On June 8, 2009, Mrs. Price^[1] filed a complaint against DuPont and several other parties. The Household Exposure section of her original complaint relevantly alleges:

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

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

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

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

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

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

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

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

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

...

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

166 *166 16. Plaintiffs allege that E.I. DuPont de Nemours' conduct was affirmative, active misconduct because it was only through the direct orders and desires of the DuPont Company that the fibers were released within its plant and not contained within its plant and escaped beyond the plant to pollute not only the surrounding area beyond the plant and everything within the facility, but be [sic] foreseeably transported to the homes and businesses of Plaintiff and the invitees of the DuPont Company.

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

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

II. STANDARD OF REVIEW

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

III. ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

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

IV. CONCLUSION

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

BERGER, Justice, dissenting, with KUHN, Chief Judge, joining:

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

Riedel Did Not Analyze Misfeasance vs. Nonfeasance

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

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

Considering the claim to be one of nonfeasance, this Court addressed only the "alternative 171 *171 argument that [Riedel] and ICI shared a legally significant relationship."^[28]

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

The Factual Allegations State a Claim of Misfeasance

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

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

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

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

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

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

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

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

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

To Prevail on a Misfeasance Claim the Harm must be Foreseeable

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

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

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

[*] Sitting by designation pursuant to Del. Const. Art. IV § 12.

[1] The Prices filed the Complaint as co-plaintiffs, but Mr. Price's only claim is for loss of consortium, the existence of which is predicated on Mrs. Price having a valid claim for relief. Therefore, from this point on, we refer solely to Mrs. Price as the Plaintiff.

[2] 968 A.2d 17 (Del.2009).

[3] See FS Parallel Fund, L.P. v. Ergen, 2005 WL 1950199, at *2 (Del.2005) (ORDER) (referring to the operation of Court of Chancery Rule 12(b)(6), which is identical to Superior Court Rule 12(b)(6)).

[4] Clinton v. Enterprise Rent-A-Car Co., 977 A.2d 892, 895 (Del.2009) (quoting Feldman v. Cutaia, 951 A.2d 727, 730-31 (Del.2008)).

[5] Id.

[6] Id.

[7] Riedel v. ICI Americas Inc., 968 A.2d 17, 20 (Del.2009) (citing New Haverford P'ship v. Stroot, 772 A.2d 792, 798 (Del.2001)).

[8] Id. (citing Naidu v. Laird, 539 A.2d 1064, 1070 (Del. 1988)).

[9] Id. (citing Furek v. Univ. of Delaware, 594 A.2d 506, 520 (Del.1991)). In Riedel, we declined to adopt the proposed Restatement (Third) of Torts provisions relevant to these facts.

[10] Id. at 22 (quoting RESTATEMENT (SECOND) OF TORTS § 284 (1965)).

[11] Id. (quoting RESTATEMENT (SECOND) OF TORTS § 302 cmt. a).

[12] Id. (quoting RESTATEMENT (SECOND) OF TORTS § 302 cmt. a).

[13] Id. at 19.

[14] Id.

[15] Id. at 23 ("Although the trial judge did not explicitly address whether Mrs. Riedel alleged misfeasance or nonfeasance, he considered Mrs. Riedel's claim in a manner consistent with the (Second) Restatement's analysis of nonfeasance.").

[16] Id. at 25 ("[W]e are not persuaded by Mrs. Riedel's assertion that she pled misfeasance in Count II of her complaint. Referring to ICI, Count II states: `Her husband's employers controlled the safety and working conditions and/or promoted the use of asbestos, at the sites where the plaintiff's husband worked, including the use, installation, and removal of asbestos and asbestos-containing products.' This allegation merely supports Mrs. Riedel's theory at trial that ICI acted with misfeasance in relation to Mr. Riedel (by exposing him to asbestos) and with nonfeasance in relation to Mrs. Riedel (by failing to control Mr. Riedel[])[.]").

[17] Id. at 23 ("Now, however, she claims that ICI's affirmative release of asbestos into the environment constitutes misfeasance. To us, Mrs. Riedel claims that `[t]here is simply no principled way to distinguish ICI's asbestos release on its employee's clothes with another entity's release of a deadly toxin via another vector such as the air.' She asserts that `ICI did nothing less than actively release asbestos toxins out of its plant and into Mrs. Riedel's home.'").

[18] Id. at 25 ("Because Mrs. Riedel did not fairly present her current theory of misfeasance to the trial judge, Supreme Court Rule 8 precludes her from arguing to us that the trial judge erred by [considering her claim as nonfeasance].").

[19] See supra note 16. See also Riedel, 968 A.2d at 23 ("Although the trial judge did not explicitly address whether Mrs. Riedel alleged misfeasance or nonfeasance, he considered Mrs. Riedel's claim in a manner consistent with the (Second) Restatement's analysis of nonfeasance.... [O]ur review of the record leads us to agree with the trial judge's conclusion.").

[20] Id. at 23.

[21] The dissent maintains that "[t]he Riedel Court never decided whether Riedel's claim was properly characterized as nonfeasance." We disagree. The Riedel court made clear that her claim did indeed constitute nonfeasance. The only issue the Riedel court never decided was whether her claim could also constitute misfeasance by using alternative pleading semantics. Consequently, any decision that characterizes those same underlying facts as only misfeasance, but not nonfeasance—as the dissent does—we believe to be inconsistent with our Riedel opinion.

[22] Id.

[23] Shakespeare explained, "What's in a name? [T]hat which we call a rose/By any other name would smell as sweet...." ROMEO AND JULIET act 2, sc. 2. So, too, it is with nonfeasance, which no complainant can transform into misfeasance merely by using different descriptors.

[24] RESTATEMENT (SECOND) TORTS § 302 cmt. a ("The duties of one who merely omits to act... in general are confined to situations where there is a special relation between the actor and the other which gives rise to the duty.").

[25] See RESTATEMENT § 314A (listing common carriers with respect to their passengers, innkeepers with respect to their guests, possessors of land who hold it open to the public with respect to the entering public, and people who take custody of others, whether by law or voluntarily, with respect to those over whom they assume custody, as "special relations" giving rise to a duty to aid or protect). See also RESTATEMENT § 314 cmt. a (explaining other "special relationships" including when an actor has control of a third person or of land or chattels that gives rise to a duty to exercise that control, when an actor's prior conduct created a situation of peril to another party and gave rise to a duty to prevent harm to that other party, and when an actor has committed himself to the performance of an undertaking and therefore accepts a duty of reasonable care for the protection of another party in the conduct of that undertaking).

[26] Riedel, 968 A.2d at 26-27 ("The trial judge concluded that Mrs. Riedel and ICI are `legal strangers in the context of negligence.' We agree.") (quoting In re Asbestos Litig., 2007 WL 4571196, at *12 (Del.Super.2007)).

[27] Riedel v. ICI Americas Inc., 968 A.2d 17, 19 (Del.2009).

[28] Ibid.

[29] Riedel, 968 A.2d at 25 (quoting Danby v. Osteopathic Hosp. Ass'n of Del., 104 A.2d 903, 907-08 (Del. 1954)).

[30] Restatement (Second) of Torts § 284(a) (hereafter Restatement).

[31] Restatement § 284(b).

[32] Restatement § 302 cmt. a.

[33] W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 56, at 373 (5th ed.1984) (hereafter, Prosser).

[34] Restatement § 314 cmts. c and e.

[35] Prosser, § 56, at 373.

[36] Restatement § 314 cmt. e.

[37] Prosser, § 56, at 373.

[38] Restatement § 284(a); Sirmans v. Penn, 588 A.2d 1103, 1107 (Del.1991).

[39] 140 Wash.App. 1008, 2007 WL 2325214, at *3 (Wash.Ct.App. Aug. 13, 2007).

[40] 266 S.W.3d 347, 354-360 (Tenn.2008).

[41] 186 N.J. 394, 895 A.2d 1143, 1149 (2006). See also, Condon v. Union Oil Co. of Cal., 2004 WL 1932847, at *5 (Cal.Ct.App. Aug. 31, 2004) ("[I]t was foreseeable that family members who were exposed to this clothing would also be in danger of being exposed."); Chaisson v. Avondale Indus., Inc., 947 So.2d 171, 183-84 (La.Ct.App.2006) (considering various factors including that defendant's acts created a foreseeable risk to the plaintiff).

[42] In re New York City Asbestos Litig., 5 N.Y.3d 486, 806 N.Y.S.2d 146, 840 N.E.2d 115, 119-22 (2005) (finding no duty based on policy considerations, including the potential for limitless liability); In re Certified Question from Fourteenth Dist. Court of Appeals of Texas, 479 Mich. 498, 740 N.W.2d 206, 211-22 (2007) (finding no duty because the social costs would exceed the social benefit); CSX Transp., Inc. v. Williams, 278 Ga. 888, 608 S.E.2d 208, 209-10 (2005) (finding no duty based on policy considerations).

[43] Restatement §§ 302 cmt. a, 314 cmt. e, 284.

[44] Restatement § 302 cmt. a. (emphasis added).

[45] Ibid.

[46] Restatement §§ 302 cmt. a, 314 cmt. e, 284.

[47] Restatement § 284(a).

[48] Restatement § 302 cmt. a.

[49] See, e.g., Sirmans, 588 A.2d at 1107; Delmarva Power & Light Co. v. Burrows, 435 A.2d 716, 719 (Del.1981).

[50] Restatement § 284(a).

4.2.2.2.4 Disguised Affirmative Acts 4.2.2.2.4 Disguised Affirmative Acts

4.2.2.2.4.1 Rescuers 4.2.2.2.4.1 Rescuers

4.2.2.2.4.1.1 Wagner v. International Railway Co. ("The 'Danger Invites Rescue' Case") 4.2.2.2.4.1.1 Wagner v. International Railway Co. ("The 'Danger Invites Rescue' Case")

Arthur Wagner, Appellant, v. International Railway Company, Respondent.

Negligence — railroads — passengers — fatal injury to passenger by being thrown from platform of trolley car while running around curve on high trestle — plaintiff, a relative and companion of such passenger, injured by fall from trestle while walking back in darkness to find body of his companion — when such act of plaintiff not contributory negligence — when railway company liable to plaintiff — erroneous charge of trial court.

Plaintiff and his cousin boarded a car of an electric railway at the foot of a long trestle over which the car after running around a sharp curve crossed a bridge over the tracks of two steam railroads. The car was crowded and plaintiff and his cousin had to stand on the rear platform. The platform was provided with doors but the conductor did not close them. As the car, without slackening speed, turned the curve, and at the point where the trestle changes to a bridge, plaintiff’s cousin was thrown out. An alarm was given but the car did not stop but went on across the bridge and stopped near the foot of the incline on that side. It was dark but plaintiff walked back along the trestle, until he arrived at the bridge where he thought to find his cousin’s body. He says that he was asked to go there by the conductor and that the conductor followed him with a lantern. This is denied by the conductor. When plaintiff reached the bridge he found upon a beam his cousin’s hat but nothing else. About him was darkness, he missed his footing and fell to the ground beneath, receiving the injuries for which this action is brought. Several other persons, instead of ascending the trestle, went beneath it and discovered under the bridge the body which they were seeking. The trial court charged that the negligence of the defendant toward plaintiff’s cousin would not charge it with liability for injuries suffered by plaintiff unless two other facts were found: First, that the plaintiff had been invited by the conductor to go upon the bridge; and second, that the conductor followed with a light. Thus limited, the jury found in favor of the defendant. Hold, that the limitation imposed by the charge of the trial judge cannot be upheld; that whether the fall of plaintiff’s cousin was due to the defendant’s negligence, and whether plaintiff, in going to the rescue, as he did, was foolhardy or reasonable in the emergency confronting him, were questions for the jury. Held, further, that the plaintiff could not be held guilty of *177negligence, as matter of law, because in hastening to the rescue of his cousin he walked over the trestle to the bridge instead of upon the ground beneath it. There was reason to believe that his cousin’s body might be upon the bridge or trestle, and if plaintiff erred in judgment in the excitement and confusion of the emergency such error could not be charged against him as negligence.

Wagner v. International Ry. Co., 189 App. Div. 925, reversed.

(Argued October 24, 1921;

decided November 22, 1921.)

Appeal from a judgment, entered March 9, 1920, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, overruling plaintiff’s exceptions ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment in favor of defendant upon the verdict.

Hamilton Ward for appellant.

The court erred in holding as a matter of law that the first accident which resulted in the fall of Herbert Wagner was not the proximate cause of the plaintiff’s accident, and in refusing to submit to the jury the question of the defendant’s negligence in causing the first accident. (Gatin v. M. S. R. Co., 89 App. Div. 311; 181 N. Y. 515; Lehr v. Ry. Co., 118 N. Y. 556; Donnelly v. Piercy Contracting Co., 222 N. Y. 210; Laidlaw v. Sage, 158 N. Y. 73; Pollett v. Long, 56 N. Y. 200; Cohn v. Realty Co., 162 App. Div. 791; Gibney v. State, 137 N. Y. 1; O’Brien v. Erie R. R. Co., 139 App. Div. 291; Kinsella v. N. Y. C. & H. R. R. R. Co., 162 App. Div. 926; Schachter v. I. R. T. Co., 70 Misc. Rep. 558.) The court erred in charging the jury that there could. be no recovery if plaintiff went upon the trestle of his own accord or without invitation from the conductor, and in charging that unless the jury found that the conductor asked plaintiff to show him where Herbert fell, and plaintiff went up in response to such request to point out the place and the conductor followed *178him with a lantern up the trestle to near where plaintiff himself fell, the verdict must be no cause of action. (Eckert v. L. I. R. R. Co., 43 N. Y. 502; Thompson on Neg. § 199.)

Edward E. Franchot for respondent.

The trial court committed no error in instructing the jury that they could not find a verdict based upon any alleged negligence of the defendant prior or leading up to the first accident when Herbert Wagner fell from the car. (Hoffman v. King, 160 N. Y. 618; Trapp v. McClellan, 68 App. Div. 362; Fanizzi v. N. Y. & Queens R. R. Co., 113 App. Div. 440; Laidlaw v. Sage, 158 N. Y. 101; Gibney v. .State, 137 N. Y. 1; McGovern v. Degnon-McLean Con. Co., 120 App. Div. 524; Murphy v. City of New York, 89 App. Div. 93; Jex v. Straus, 122 N. Y. 293; Story v. Mayor, etc., 29 App. Div. 316; Leeds v. N. Y. Telephone Co., 178 N. Y. 118; Cleveland v. N. J. Steamboat Co., 68 N. Y. 306; Mars v. Del. & H. Canal Co., 54 Hun, 625; Luedeke v. N. Y. C. & H. R. R. R. Co., 164 App. Div. 104; Beetz v. City of Brooklyn, 10 App. Div. 382; McVay v. Brooklyn, etc., R. R.. Co., 113 App. Div. 724; Dulfer v. Brooklyn Heights R. R. Co., 115 App. Div. 670; Knaisch v. Joline, 138 App. Div. 854.) The additional charges referred to in plaintiff’s brief do not add to his allegation of error. (Sann v. Johns Mfg. Co., 16 App. Div. 252.)

Cardozo, J.

The action is for personal injuries.

The defendant operates an electric railway between Buffalo and Niagara Falls. There is a point on its line where an overhead crossing carries its tracks above those of the New York Central and the Erie. A gradual incline upwards over a trestle raises the tracks to a height of twenty-five feet. A turn is then made to the left at an angle of from sixty-four to eighty-four degrees. After making this turn, the line passes over a bridge, *179which is about one hundred and fifty-eight feet long from one abutment to the other. Then comes a turn to the right at about the same angle down the same kind of an incline to grade. Above the trestles, the tracks are laid on ties, unguarded at the ends. There is thus an overhang of the cars, which is accentuated at curves. On the bridge, a narrow footpath runs between the tracks, and beyond the line of overhang there are tie rods and a protecting rail.

Plaintiff and his cousin Herbert boarded a car at a station near the bottom of one of the trestles. Other passengers, entering at the same time, filled the platform, and blocked admission to the aisle. The platform was provided with doors, but the conductor did not close them. Moving at from six to eight miles an hour, the car, without slackening, turned the curve. There was a violent lurch, and Herbert Wagner was thrown out, near the point where the trestle changes to a. bridge. The cry was raised, “Man overboard.” The car went on across the bridge, and stopped near the foot of the incline. Night and darkness had come on. Plaintiff walked along the trestle, a distance of four hundred and forty-five feet, until he arrived at the bridge, where he thought to find his cousin’s body. He says that he was asked to go there by the conductor. He says, too, that the conductor followed with a lantern. Both these statements the conductor denies. Several other persons, instead of ascending the trestle, went beneath it, and discovered under the bridge the body they were seeking. As they stood there, the plaintiff’s body struck the ground beside them. Reaching the bridge, he had found upon a beam his cousin’s hat, but nothing else. About him, there was darkness. He missed his footing, and fell.

The trial judge held that negligence toward Herbert Wagner would not charge the defendant with liability for injuries suffered by the plaintiff unless two other facts were found: First, that the plaintiff had been *180invited by the conductor to go upon the bridge; and second, that the conductor had followed with a light. Thus limited, the jury found in favor of the defendant. Whether the limitation may be upheld, is the question to be answered.

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the- range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is hable to the child that falls into the stream, but hable also to the parent who plunges to its aid (Gibney v. State of N. Y., 137 N. Y. 1). The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path (Eckert v. L. I. R. R. Co., 43 N. Y. 502. Cf. Matter of Waters v. Taylor Co., 218 N. Y. 248). The rule is the same in other jurisdictions (Dixon v. N. Y., N. H. & H. R. R. Co., 207 Mass. 126, 130, and Bond v. B. & O. R. R. Co., 82 W. Va. 557, with cases there cited. Cf. 1 Beven on Negligence, 157, 158). The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had (Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264, 280, 281).

The defendant says that we must stop, in following the chain of causes, when action ceases to be “instinctive.” By this, is meant, it seems, that rescue is at the peril of the rescuer, unless spontaneous and immediate. If there has been time to deliberate, if impulse has given way to judgment, one cause, it is said, has spent its force, and another has intervened. In this case, the plaintiff walked more than four hundred feet in going to Herbert’s aid. *181He had time to reflect and weigh; impulse had been followed by choice; and choice, in the defendant’s view, intercepts and breaks the sequence. We find no warrant for thus shortening the chain of jural causes. We may assume, though we are not required to decide, that peril and rescue must be in substance one transaction; that the sight of the one must have aroused the impulse to the other; in short, that there must be unbroken continuity between the commission of the wrong and the effort to avert its consequences. If all this be assumed, the defendant is not aided. Continuity in such circumstances is not broken by the exercise of volition (Twomley v. C. P., N. & E. R. R. R. Co., 69 N. Y. 158; Donnelly v. Piercy Contracting Co., 222 N. Y. 210; Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 54). So sweeping an exception, if recognized, would leave little of the rule. “The human mind,” as we have said (People v. Majone, 91 N. Y. 211, 212), “acts with celerity which it is sometimes impossible to measure.” The law does not discriminate between the rescuer oblivious of peril and the one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion.

The defendant finds another obstacle, however, in the futility of the plaintiff’s sacrifice. He should have gone, it is said, below the trestle with the others; he should have known, in view of the overhang of the cars, that the body would not be found above; his conduct was not responsive to the call of the emergency; it was a wanton exposure to a danger that was useless (Miller v. Union Ry. Co. of N. Y. City, 191 N. Y. 77, 80). We think the quality of his acts in the situation that confronted him was to be determined by the jury. Certainly he believed that good would come of his search upon the bridge. He was not going there to view the landscape. The law cannot say of his belief that a reasonable man would have been unable to share it. He could not know *182the precise point at which his cousin had fallen from the car. If the fall was from the bridge, there was no reason why the body, caught by some projection, might not be hanging on high, athwart the tie rods or the beams. Certainly no such reason was then apparent to the plaintiff, or so a jury might have found. Indeed, his judgment was confirmed by the finding of the hat. There was little time for delay, if the facts were as he states them. Another car was due, and the body, if not removed, might be ground beneath the wheels. The plaintiff had to choose at once, in agitation and with imperfect knowledge. He had seen his kinsman and companion thrown out into the darkness. Rescue could not charge the company with liability if rescue was condemned by reason. “Errors of judgment,” however, would not count against him, if they resulted “from the excitement and confusion of the moment” (Corbin v. Philadelphia, 195 Penn. St. 461, 472). The reason that was exacted of him was not the reason of the morrow. It was reason fitted and proportioned to the time and the event.

Whether Herbert Wagner’s fall was due to the defendant’s negligence, and whether plaintiff in going to the rescue, as he did, was foolhardy or reasonable in the light of the emergency confronting him, were questions for the jury.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

Hiscock, Ch. J., Hogan, Pound, McLaughlin, Crane and Andrews, JJ., concur.

Judgments reversed, etc.

4.2.2.2.4.1.2 Govich v. North American Systems, Inc. ("The Emotional Mr. Coffee Case") 4.2.2.2.4.1.2 Govich v. North American Systems, Inc. ("The Emotional Mr. Coffee Case")

How does the rescue doctrine relate to duty? Did the plaintiff in this case act too unreasonably to maintain a cause fof action?

Supreme Court of New Mexico

112 N.M. 226, 814 P.2d 94

No. 19346

1991-06-26

814 P.2d 94

Roane GOVICH, Daniel Govich and American National Fire Insurance Co., Plaintiffs-Appellants and Cross-Appellees, v. NORTH AMERICAN SYSTEMS, INC. and Ark-Les Switch Company, Defendants-Appellees and Cross-Appellants.

No. 19346.

Supreme Court of New Mexico.

June 26, 1991.

Rehearing Denied July 22, 1991.

*228Samantha Dunning, Santa Fe, for appellants.

Lenssen & Mandel John L. Lenssen, Santa Fe, for appellee North American Systems.

Civerolo, Hansen & Wolf R. Galen Reimer, Carl J. Butkus, Albuquerque, for appellee ARK-Les Switch Co.

OPINION

RANSOM, Justice.

Roane Govich and her adult son, Daniel Govich, appeal from the district court’s order dismissing their personal injury claims against North American Systems, Inc. (“Mr. Coffee”) and Ark-Les Switch Company. We are called upon to address novel questions concerning the rescue doctrine in the context of comparative negligence. We reverse.

Daniel is hearing impaired. He is assisted by a dog specially trained to alert him to routine sounds of daily life, such as a ringing telephone or a knock at the door. On the evening of November 23, 1983, Daniel and Roane dined at a Santa Fe restaurant. Daniel was not accompanied by his dog. Upon returning to their home after dinner, they noticed smoke issuing from the house. Daniel opened a door to the house, and smoke billowed forth. Roane ran to a neighbor’s house to call the fire department.

Daniel’s dog was inside the burning house. After first calling his dog from outside the house, Daniel entered the house in repeated, but vain, attempts to rescue the dog. Daniel testified that “at the time of the rescue attempt of my dog I was under severe emotional distress due to the possibility of losing my dog and not knowing if all my possessions in the house would be destroyed.” Roane returned, and upon seeing her son enter the burning house, made several entrances attempting to restrain Daniel. She testified that Daniel “was like a person who had lost his sanity. He could not understand the danger he was in.” The dog perished, and Daniel and Roane were injured in the fire.

On January 22, 1985, the Goviches sued Mr. Coffee, alleging the fire was caused by a defective coffee maker. Ark-Les, the maker of an electrical component in the coffee maker, was named a defendant by amended complaint. Based upon theories of strict products liability, negligence, and breach of implied or express warranties, the Goviches sought damages for personal injuries, emotional distress, and lost wages. American National Fire Insurance Company, as the Goviches’ subrogated insurer, sought recovery for damages to personal and real property.

Mr. Coffee and Ark-Les moved for partial summary judgment arguing that the Goviches were barred from recovery as a matter of law. The Goviches responded that summary judgment was precluded by the rescue doctrine and bystander recovery for negligent infliction of emotional distress. The rescue doctrine was raised in relation to both Roane and Daniel. The bystander theory has been abandoned on appeal.

On May 10, 1990, the district court1 entered an order granting partial summary judgment in favor of Mr. Coffee and Ark-Les, dismissing the Goviches’ personal injury claims. The court entered the following findings of fact:

7. The personal injuries as well as the emotional injuries and lost income of plaintiffs Roane Govich or Daniel Govich resulted entirely from their entry into the burning house.

8. The actions of plaintiff Daniel Govich in entering a burning home to rescue a dog [are] unreasonable conduct as a matter of law and he may not recover damages for personal injuries, lost income, or emotional damages that he may have suffered.

*2299. The actions of plaintiff Roane Govich in entering the burning home to retrieve her son were plainly occasioned by the unreasonable conduct of her son and not any act, omission or conduct of defendants and she is barred to collect damages for personal injuries, lost income, or emotional damages that she may have suffered.

10. There are no genuine issues of material fact as to causation for personal injuries, emotional distress, and lost income and defendants are entitled to summary judgment as a matter of law.

Accordingly, the court adjudged that:

1. The claims for personal injuries, emotional distress and lost income by plaintiffs, Roane Govich and Daniel Govich, be and the same are hereby dismissed.

2. The only claims remaining to be tried relate to liability of defendants to plaintiffs as to their claims for damages to the real and personal property destroyed or damaged in the fire.

On June 8 the Goviches filed notice of appeal from the May 10 order. On June 12 the district court denied defendants’ motion to compel answers to interrogatories from the Goviches. In that order the court stated that the order for partial summary judgment had dismissed all the Goviches’ claims. The court then dismissed the Goviches from the suit. On July 10 the Goviches filed notice of appeal from the June 12 order. Both appeals were taken to the court of appeals. The court of appeals transferred the action to this Court pursuant to NMSA 1978, Section 34-5-10 (Repl. Pamp.1990) (transfer to proper court by the court in which appeal is filed; a final determination of jurisdiction).

Jurisdiction. Ark-Les challenges our jurisdiction to hear this appeal, first arguing the partial summary judgment order is not a final order and, thus, cannot form the proper predicate for appeal. Second, citing SCRA 1986, 12-202(B) (notice of appeal shall attach the judgment or order from which appeal is taken) and cases construing the rule, Ark-Les maintains that the second notice of appeal conferred jurisdiction upon this Court only over the order attached to that notice. While we agree with Ark-Les that the partial summary judgment order was not appealable, we hold that we have jurisdiction over this appeal to review all issues properly preserved below arising from the partial summary judgment order.

The partial summary judgment only dismissed the Goviches’ claims for personal injuries, emotional distress, and lost income. It provided that “[t]he only claims remaining to be tried relate to liability of defendants to plaintiffs as to their claims for damages to the real and personal property destroyed by the fire.” Rule 54(C) provides that, in the absence of an express determination by the court that there is no just reason for delay, an adjudication of fewer than all the claims “shall not terminate the action as to any of the claims and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” SCRA 1986, 1-054(C)(1). By its terms, the partial summary judgment order left unresolved the Goviches’ property claims2 and, thus, the May 10 order cannot be a final order from which appeal properly may be taken. Aetna Casualty & Sur. Co. v. Miles, 80 N.M. 237, 453 P.2d 757 (1969). Accordingly, the June 8 notice of appeal was ineffective to perfect the Goviches’ appeal.

The Goviches timely filed notice of appeal from the June 12 order dismissing them from the suit. Because that order was a final order with respect to the Goviches, their appeal was perfected when the notice was filed. Nonetheless, citing Mabrey v. Mobil Oil Corp., 84 N.M. 272, 502 P.2d 297 (Ct.App.), cert. denied, 83 N.M. *230 740, 497 P.2d 742 (1972), Ark-Les argues that because the second notice of appeal mentioned and attached only the order denying defendants' motion to compel, that notice fails to confer jurisdiction over the partial summary judgment order. We disagree.

While we recently held that appellate rules for the time and place of filing a notice of appeal govern the proper invocation of our jurisdiction, Lowe v. Bloom, 110 N.M. 555, 556, 798 P.2d 156, 157 (1990), we also have stated the policy of facilitating the right of appeal by liberally construing technical deficiencies in a notice of appeal otherwise satisfying the time and place of filing requirements. Marquez v. Gomez, 111 N.M. 14, 801 P.2d 84 (1990). The constitutional mandate that “an aggrieved party shall have, the absolute right to one appeal” evinces the strong policy in this state that courts should facilitate, rather than hinder, the right to one appeal. See N.M. Const, art. VI, § 2. Justice Montgomery explored this concept eloquently in his dissent to Lowe. As a matter of terminology, we properly should refer hereafter to the mandatory sections of our rules of appellate practice as “mandatory” and discard the term “jurisdictional” that has been used over time by most federal and state courts to describe a mandatory precondition to the exercise of jurisdiction. See Mann v. Lynaugh, 840 F.2d 1194, 1197 (5th Cir.1988) (notice requirement under federal rule 4(a) is a mandatory precondition to the exercise of appellate jurisdiction). We strictly adhere to jurisdictional subject matter limits on this Court and we cannot exercise our discretion with respect to such questions. Though we have stated in categorical terms that we cannot entertain an appeal when the notice does not satisfy the requirements for time and place of filing, what we in essence have held is simply that, with respect to the mandates for time and place of filing the notice of appeal, we decline to exercise discretion to excuse or justify any improper attempt to invoke our jurisdiction. It is probably imprecise to say we cannot exercise such discretion.

Once notice of appeal has been timely filed, the specificity requirements of Rule 12-202(B) (content of notice) are meant to inform the appellee and the court of the scope of the appellate proceeding by delineating the ruling from which appeal is taken. However, under Rule 12-312(C) an appeal timely filed is not to be dismissed for technical violations of Rule 12-202 that do not affect the substantive rights of the parties. The policies in this state, and the purpose of the rule, are vindicated if the intent to appeal a specific judgment fairly can be inferred from the notice of appeal and if the appellee is not prejudiced by any mistake. This long has been the position in this state and in the federal courts. Baker v. Sojka, 74 N.M. 587, 588-89, 396 P.2d 195, 196 (1964); Nevarez v. State Armory Bd., 84 N.M. 262, 264, 502 P.2d 287, 289 (1972). See generally 9 J.W. Moore, B.J. Ward, & J.D. Lucas, Moore’s Federal Practice ¶ 203.17[2] (2d ed. 1991) (discussing federal requirement).

Upon analysis of the record, we are satisfied that the Goviches’ intent to appeal the May 10 order fairly can be inferred from their submissions and that Ark-Les was not prejudiced by any mistake. Nothing in the record suggests Ark-Les was misled, nor has Ark-Les so claimed. The intent to appeal the order was apparent from the filing of a premature notice of appeal from the partial summary judgment order. Additionally, the June 12 order from which the second notice of appeal was taken refers expressly to the May 10 order. Under these circumstances we will treat the Goviches’ second notice of appeal as the functional equivalent of an appeal from the partial summary judgment order and the order of dismissal. See Nevarez, 84 N.M. at 264, 502 P.2d at 289 (notice of appeal from final judgment was effective to invoke review of summary judgment where final judgment in its operative provisions “confirmed” summary judgment); Munoz v. Small Business Admin., 644 F.2d 1361, 1364 (9th Cir.1981) (appeal from final judgment draws in question all earlier nonfinal orders and rulings that produced judgment).

*231 Rescue doctrine. The issue in the briefs before this Court is whether the rescue doctrine is applicable under comparative negligence and, if so, whether it may be relied upon by the Goviches to establish a genuine issue of material fact that would preclude summary judgment on their personal injury claims.3

The paradigm rescue case is Wagner v. International Railway, 232 N.Y. 176, 133 N.E. 437 (1921). In Wagner, plaintiff rescuer was seriously injured in an attempt to rescue his cousin who had been thrown from a moving tram as a result of defendant railway company’s negligence. The plaintiff lost at trial, and an intermediate appellate court directed judgment on the verdict for defendant. The court of appeals reversed, rejecting the railway’s primary arguments (1) that plaintiff’s rescue attempt was outside the chain of causation, and (2) that plaintiff was contributorily negligent. As Justice Benjamin Cardozo declaimed with memorable prose:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer * * * * The risk of rescue, if only it be not wanton, is bom of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.

Id. at 180, 133 N.E. at 437-38. The Wagner rule has gained universal acceptance. See W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on the Law of Torts § 44, at 307-08 (5th ed. 1984) [hereinafter Prosser & Keeton ] (collecting cases); Annotation, Liability for Death of, or Injury to, One Seeking to Rescue Another, 158 A.L.R. 189 (1945) (same). New Mexico has recognized the doctrine, but has not examined the effect, if any, of the introduction of comparative negligence on the doctrine. See, e.g., Mitchell v. Pettigrew, 65 N.M. 137, 333 P.2d 879 (1958); Padilla v. Hooks Int’l, Inc., 99 N.M. 121, 654 P.2d 574 (Ct.App.), cert. denied, 99 N.M. 148, 655 P.2d 160 (1982); Neff v. Woodmen of the World Life Ins. Soc., 87 N.M. 68, 529 P.2d 294 (Ct.App.), cert. denied, 87 N.M. 48, 529 P.2d 274 (1974).

Several jurisdictions have considered and reaffirmed the vitality of the rescue doctrine under their respective comparative negligence regimes. Ryder Truck Rental, Inc. v. Korte, 357 So.2d 228 (Fla.Dist.Ct.App.1978), was the first case to undertake extensive analysis. In Korte, the court began by articulating the purposes served by the rescue doctrine: “[T]he rescue doctrine serves a dual purpose: first, to establish the causal connection between the defendant’s negligence and the plaintiff’s injury, and second, to eliminate the absolute defense of contributory negligence.” Id. at 230. The court then observed that while the rescue doctrine no longer was required under comparative negligence analysis to insulate the rescuer from the defense of contributory negligence, the doctrine nonetheless was essential to establish the causal nexus between the defendant’s negligence and the rescuer’s injuries:

[T]he rescue doctrine is still applicable to establish that the defendant’s negligence was the proximate cause of the plaintiff’s injury. A basic principle of the doctrine is that where the defendant has created a situation of peril for another the defendant will be held in law to have *232caused the peril not only to the victim but also to his rescuer, and so to have caused any injury suffered by the rescuer in his rescue attempt.

Id. at 230 (citing Tiley, The Rescue Principle, 30 Mod.L.Rev. 25 (1967) (positing that the rescue doctrine is a causation doctrine)).

Korte’s dual purpose analysis of the rescue doctrine has been widely accepted by courts that have considered the effect of the adoption of comparative negligence. See, e.g., Zimny v. Cooper-Jarrett, Inc., 8 Conn.App. 407, 420, 513 A.2d 1235, 1243 (causal aspect of rescue doctrine remains viable under comparative negligence), cert. denied, 201 Conn. 811, 516 A.2d 887 (1986); Solomon v. Shuell, 435 Mich. 104, 135, 457 N.W.2d 669, 683 (1990) (same); Sweetman v. State Highway Dep’t, 137 Mich.App. 14, 26, 357 N.W.2d 783, 789 (1984) (same); Pachesky v. Getz, 353 Pa.Super. 505, 519 n. 8, 510 A.2d 776, 783 n. 8 (1986) (same).

Rather than isolating the purposes of the doctrine, Korte and its progeny have identified the means employed to implement the doctrine’s purpose. The rescue doctrine, in essence, reflects the assumption that rescue is a commendable human urge to be encouraged, not penalized. To give legal cognizance to that assumption, courts, under the guise of the rescue doctrine, have tinkered with traditional tort concepts. The doctrine has been employed: (1) to establish the duty owed the rescuer by the person creating the peril, see Prosser & Keeton, supra, § 44, at 308; (2) to relieve the plaintiff of the defenses of contributory negligence and assumption of the risk, otherwise available to the person creating the initial peril, see id. § 68, at 491; Goodhart, Rescue and Voluntary Assumption of Risk, 5 Camb.LJ. 192 (1934); and (3) to help establish the causal nexus between the defendant’s negligence and the rescuer’s injury. See Tiley, supra.

Broadly stated, the issue we face is whether the policies reflected in the rescue doctrine are vindicated by application of our rules of comparative negligence, or whether those policies yet require judicial manipulation of traditional rules of duty and causation. Upon close analysis of causation rules under comparative negligence, we conclude the doctrine now serves only to establish and identify the duty owed the rescuer.

Whether the person or entity creating the peril owes a duty to the rescuer is a matter of law to be decided by the court. Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990). The person or entity creating the peril owes an independent duty of care to the rescuer, which arises from a policy, deeply imbedded in our social fabric, that fosters rescue attempts. See, e.g., Prosser & Keeton, supra, § 44, at p. 308. So far as the rescue doctrine can be understood as shorthand for a public policy, reflected in the law, imposing an independent duty of care owed a rescuer by persons creating unreasonable risks of harm to others, we think that facet of the doctrine remains vital under New Mexico’s comparative negligence regime.

The dispositive issue, then, is whether we establish, as in Korte, that the negligence precipitating the rescue is in law the proximate cause of the rescuer’s injuries. We do not. Rather than to rely on the rescue doctrine’s Active notions of causation as articulated in Korte, it is more direct to rely upon the jury’s allocation of fault under traditional rules of proximate and independent intervening causation.

In New Mexico, a proximate cause of an injury is an event “which in a natural and continuous sequence [unbroken by an independent intervening cause] produces the injury, and without which the injury would not have occurred.” SCRA 1986, 13-305 (uniform civil jury instruction); Thompson v. Anderman, 59 N.M. 400, 411, 285 P.2d 507, 514 (1955). In turn, an independent intervening cause is an event that “interrupts and turns aside a course of events and produces that which was not foreseeable as a result of an earlier act or omission.” SCRA 1986, 13-306 (uniform civil jury instruction); Thompson, 59 N.M. at 411-12, 285 P.2d at 514.

The precise legal grounds upon which the trial court granted summary *233judgment are difficult to ascertain. With respect to Daniel, the trial court appears to have couched its findings on the determinative issue in terms of “unreasonable conduct as a matter of law.” If, as Ark-Les seems to acknowledge in its brief, the dis-positive issue ruled upon by the court was proximate cause, not comparative negligence, then the trial court erred. Questions of proximate cause and independent intervening cause are for the jury, except in rare cases in which reasonable minds cannot differ. See New Mexico State Highway Ass’n v. Van Dyke, 90 N.M. 357, 360, 563 P.2d 1150, 1153 (1977). In particular, the issue whether Daniel’s entry into the burning house to rescue his dog constituted an independent intervening cause of his injuries cannot be resolved as a matter of law. The foreseeability of Daniel’s actions, in the context of a superseding intervening cause, is an issue of fact. See Calkins, 110 N.M. at 66, 792 P.2d at 43 (Ransom, J., dissenting).

On the other hand, the terms employed by the trial court might be construed to relate to the presence of negligent conduct. If the trial court meant that the conduct of Daniel was so unreasonable as to preclude apportionment of fault to the original wrongdoer, such action on the part of the court constituted an unwarranted usurpation of the jury’s factfinding function under comparative negligence. If the trial court was applying a “rash or reckless” threshold for the existence of a duty,4 we reject that standard. New Mexico courts never have recognized degrees of negligence. Rather, the standard in all cases has been “ordinary care under the circumstances.” Pittard v. Four Seasons Motor Inn, Inc., 101 N.M. 723, 729, 688 P.2d 333, 339 (Ct.App.), cert. quashed, 101 N.M. 555, 685 P.2d 963 (1984); SCRA 1986, 13-1603 (uniform civil jury instruction defining ordinary care); see also Scott v. Rizzo, 96 N.M. 682, 687, 634 P.2d 1234, 1239 (1981) (abolishing distinction between ordinary and gross negligence). Our jury instructions adequately permit the jury to consider the facts and circumstances surrounding the rescue and to measure those acts in accordance with the standards of reasonableness and ordinary care.

Citing cases from other jurisdictions, Ark-Les argues that rescue of property is unforeseeable as a matter of law. Again, we find no compelling reason to so hold. Rather, whether rescue of property is unforeseeable is a question for the jury. We decline to rule there can be no duty owed to one who is summoned to rescue property by reason of danger occasioned by the negligence of another.

With respect to the claims of Daniel’s mother, Roane, Ark-Les acknowledges that a rescuer may be rescued. See, e.g., Grigsby v. Coastal Marine Serv. of Tex., Inc., 412 F.2d 1011, 1021-22 (5th Cir.1969), cert, denied, 396 U.S. 1033 (1970). Without citation to authority, Ark-Les argues, however, that in the event the jury finds that Daniel cannot recover, Roane must be barred as well. We fail to see the merit in this argument. The tortfeasor owes an independent duty to any foreseeable rescuer. Whether the initial rescuer, or any subsequent rescuer, can recover depends, as we have explained above, upon the jury’s determination of proximate cause.

We are aware of no public policy that would compel us to remove from the jury *234questions of negligence and proximate cause. Accordingly, we reverse the order granting partial summary judgment against Roane and Daniel Govich and remand for trial on the merits. Issues raised on the cross-appeal are rendered moot.

IT IS SO ORDERED.

SOSA, C.J., and BACA, J., concur.

. Ark-Les submits this appeal should not be heard on its merits because the Goviches never pleaded the rescue doctrine in their first amended complaint. It appears from the record that the Goviches raised the rescue doctrine in response to defendants’ motion for partial summary judgment. Our first response is that under SCRA 1986, 1-015(B), the pleadings may be deemed amended to conform to the evidence on which the court made specific findings concerning the rescue doctrine (findings 8 and 9). Moya v. Fidelity & Casualty Co. of N.Y., 75 N.M. 462, 406 P.2d 173 (1965) (findings and conclusions may determine whether pleadings will be deemed amended). Second, as discussed below in the body of this opinion, we think the rescue doctrine is but an aspect of our rules of proximate cause under comparative fault and as such need not be specifically pleaded.

. The cases are divided on the appropriate standard of care to which rescuers are held under comparative negligence rules. At least one federal court and one state have retained the "rash or reckless” standard operative prior to the adoption of comparative negligence. Furka v. Great Lakes Dredge & Dock Co., 755 F.2d 1085, 1088-89 (4th Cir.1985); Allison v. Sverdrup & Parcel & Assoc., 738 S.W.2d 440, 454 (Mo.Ct.App.1987). The majority of comparative negligence jurisdictions, however, have shifted to a "reasonableness” standard. See, e.g., Zimny, 8 Conn.App. at 420, 513 A.2d at 1243; Korte, 357 So.2d at 230; Sweetman, 137 Mich.App. at 26-7, 357 N.W.2d at 789; Pachesky, 353 Pa.Super. at 519, 510 A.2d at 783; Cords v. Anderson, 80 Wis.2d 525, 547, 259 N.W.2d 672, 683 (1977).

4.2.2.2.4.2 Undertaking to Aid 4.2.2.2.4.2 Undertaking to Aid

4.2.2.2.4.2.1 Zelenko v. Gimbel Bros. ("The Undertaking Case") 4.2.2.2.4.2.1 Zelenko v. Gimbel Bros. ("The Undertaking Case")

New York Supreme Court

158 Misc. 904

1935-07-24

Jacob Zelenko, as Administrator, etc., of Mary Zelenko, Deceased, Plaintiff, v. Gimbel Bros., Inc., Defendant.*

Supreme Court, Special Term, New York County,

July. 24, 1935.

Michael Zelenko, for the plaintiff.

John P. Smith [Thomas F. Kane of counsel], for the defendant.

Latter, J.

The general proposition of law is that if a defendant owes a plaintiff no duty, then refusal to act is not negligence. (Palsgraf v. L. I. R. R. Co., 248 N. Y. 339.) But there are many ways that a defendant’s duty to act may arise. Plaintiff’s intestate was taken ill in defendant’s store. We will assume that defendant owed her no duty at all — that defendant could have let her be and die. But if a defendant undertakes a task, even if under no duty to undertake it, the defendant must not omit to do what an ordinary man would do in performing the task.

*905Here the defendant undertook to render medical aid to the plaintiff’s intestate. Plaintiff says bhat defendant kept his intestate for six hours in an infirmary without any medical care. If defendant had left plaintiff’s intestate alone, beyond doubt some bystander, who would be influenced more by charity than by legalistic duty, would have summoned an ambulance. Defendant segregated this plaintiff’s intestate where such aid could not be given and then left her alone.

The plaintiff is wrong in thinking that the duty of a common carrier of passengers is the same as the duty of this defendant. The common carrier assumes its duty by its contract of carriage. This defendant assumed its duty by meddling in matters with which legalistically it had no concern. The plaintiff is right in arguing that when the duty arose, the same type of neglect is actionable in both cases. (See Middleton v. Whitridge, 213 N. Y. 499.)

The motion is denied.

4.2.2.2.5 Special Relationships that Ground a Duty to Aid or Protect 4.2.2.2.5 Special Relationships that Ground a Duty to Aid or Protect

4.2.2.2.5.1 Hurley v. Eddingfield -- ("The Stubborn Doctor Case") 4.2.2.2.5.1 Hurley v. Eddingfield -- ("The Stubborn Doctor Case")

This case illustrates that what the law means by a "special relationship" is not the same as one ordinary way of using that label.

Supreme Court of Indiana.

HURLEY v. EDDINGFIELD

156 Ind. 416 (1901)

BAKER, J.

The appellant sued appellee for $10,000 damages for wrongfully causing the death of his intestate. The court sustained appellee's demurrer to the complaint, and this ruling is assigned as error.

The material facts alleged may be summarized thus: At and for years before decedent's death appellee was a practicing physician at Mace, in Montgomery county, duly licensed under the laws of the state. He held himself out to the public as a general practitioner of medicine. He had been decedent's family physician. Decedent became dangerously ill, and sent for appellee. The messenger informed appellee of decedent's violent sickness, tendered him his fee for his services, and stated to him that no other physician was procurable in time, and that decedent relied on him for attention. No other physician was procurable in time to be of any use, and decedent did rely on appellee for medical assistance. Without any reason whatever, appellee refused to render aid to decedent. No other patients were requiring appellee's immediate service, and he could have gone to the relief of decedent if he had been willing to do so. Death ensued, without decedent's fault, and wholly from appellee's wrongful act.

The alleged wrongful act was appellee's refusal to enter into a contract of employment. Counsel do not contend that, before the enactment of the law regulating the practice of medicine, physicians were bound to render professional service to every one who applied. Whart. Neg. § 731. The act regulating the practice of medicine provides for a board of examiners, standards of qualification,
examinations, licenses to those found qualified, and penalties for practicing without license. Acts 1897, p. 255; Acts 1899, p. 247. The act is a preventive, not a compulsive, measure. In obtaining the state's license (permission) to practice medicine, the state does not require, and the licensee does not engage, that he will practice at all or on other terms than he may choose to accept. Counsel's
analogies, drawn from the obligations to the public on the part of innkeepers, common carriers, and the like, are beside the mark.

Judgment affirmed.

4.2.2.2.5.2 Historically Special Relationships 4.2.2.2.5.2 Historically Special Relationships

4.2.2.2.5.2.1 Bullock v. Tamiami Trail Tours, Inc. ("The Foreseeable Racism Case") 4.2.2.2.5.2.1 Bullock v. Tamiami Trail Tours, Inc. ("The Foreseeable Racism Case")

Note! This case involves racially motivated violence and it uses outdated language to refer to the plaintiffs. I edited the latter to avoid distracting from the reasoning in the opinion (but feel free to read behind my edits). I have included the opinion itself because it is a good illustration of the relevant legal principles and because its inclusion helps to highlight the relationship between race and torts--a relationship that might otherwise be erased.

United States Court of Appeals for the Fifth Circuit

266 F.2d 326

No. 17461

1959-04-20

Helen H. BULLOCK and Grover C. Bullock, Appellants, v. TAMIAMI TRAIL TOURS, INC., Appellee.

No. 17461.

United States Court of Appeals Fifth Circuit.

April 20, 1959.

*327Victor M. Cawthon, Tallahassee, Fla., for appellants.

Chas. H. Spitz, A. Frank O’Kelley, J. Velma Keen, Tallahassee, Fla. (Keen, *328O’Kelley & Spitz, Tallahassee, Fla., on the brief), for appellee.

Before RIVES and TUTTLE, Circuit Judges, and SIMPSON, District Judge.

RIVES, Circuit Judge.

The appellants are Negroes, British subjects, natives of Jamaica, married to each other, and in their early fifties. For more than twenty years the husband has been a minister of the Church of England. The wife is a musician and teacher. Racial segregation is not practiced in the island of Jamaica.

Prior to 1956, the appellants had left that island on only one trip and that was to European countries and South American countries which did not segregate the races. They were not familiar with the racial segregation practiced in the Southern part of the United States.

In August 1956, they decided to make an extended visit to the United States, landing in Miami and going by bus first to Kansas City and then to New York. They made arrangements for the trip through the Mountain Travel Service before leaving Jamaica and bought tickets over the appellee’s bus line. When the bus arrived in Perry, Florida, they were sitting together in the forward part of the bus usually occupied by white passengers. The husband was dark or black, while the wife, though a Negress, appeared to be a white woman.

• At Perry, Florida, one Milton Poppell entered the bus and violently assaulted and beat the husband and slapped the wife. The circumstances are well described in the testimony of Poppell, quoted in the margin.1 Other evidentiary *329facts are stated in some detail in the opinion of the district court reported in 162 F.Supp. at page 203 et seq.

After reaching New York, the appellants brought suit against the appellee in a New York State Court, claiming that the appellee had breached the duties owed to them as passengers by omitting to warn them of a foreseeable danger, by failing to protect them from that danger, and by willfully, or at least negligently^ aggravating the danger. The appellee,, incorporated under the laws of Florida,, being sued by citizens and subjects of *330Great Britain, had the case removed to the United States District Court for the Eastern District of New York.2 That Court transferred the action to the United States District Court for the Northern District of Florida.3

There the case was tried to the court without a jury. After fairly finding the evidentiary facts in a manner to which the appellants take only minor exceptions, the district court entered judgment for the defendant, feeling that the law of the State of Florida required it to do so, and said in part:

“In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151, the Florida Supreme Court held that a carrier was not liable to a passenger for an unprovoked and illegal assault in cases such as this case. Without regard to the views of this Court as to what the law should be in such a case as this the decision of this Court is completely controlled by the decision of the Supreme Court of Florida in the ease cited above.

“Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.”

Bullock v. Tamiami Trail Tours, D.C. N.D.Fla.1958, 162 F.Supp. 203, 205.

We are not in agreement with the district court either as to the Florida law or as to the ultimate facts, inferences or conclusions of duty and breach of duty on the part of the appellant carrier. In so far as those ultimate facts are simply the result reached by processes of legal reasoning from, or the interpretation of the legal significance of, the evidentiary facts, they are subject to review by this Court free from the restraining influence of the “clearly erroneous” rule, Rule 52 (a), Federal Rules of Civil Procedure, 28 U.S.C.A.; Galena Oaks Corporation v. Scofield, 5 Cir., 1954, 218 F.2d 217, 219. To the extent that the inference of negligence is controlled by Rule 52(a), supra, this Court, on the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746.

In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151, the case relied upon by the district court as dispositive of the case at bar, a female passenger was assaulted by a male passenger in a Pullman berth, they being the only two occupants of the car. Holding that the plaintiff’s proof failed to support her allegations that a porter and conductor heard her calls and bells in time to have prevented the assault, the court stated:

“The liability of the carrier in such case rests, not upon the tort of the passenger, but upon the negligent omission of the carrier through its servants to prevent the tort being committed. A failure to do anything which could have been done by the servant to prevent the injury renders the carrier liable. But to do something to prevent an injury resulting from an assault by a fellow passenger implies knowledge on the part of the servant that the act is contemplated by the stranger, or by due diligence the servant could have obtained such knowledge, or had the opportunity to acquire it sufficiently long in advance of its infliction to have prevented it with the force at his command. 4 R.C.L. 1185.

“In guarding a passenger from a danger which is not usual or not incident to ordinary travel the carrier is held to the use of ordinary and reasonable care and diligence. It is the failure of the carrier through its agents to afford the required protection, after they had reasonable grounds for believing that violence or the insult was imminent, upon which the liability of the carrier rests. It is not the fact of injury to the passenger that fixes the carrier’s liability. The injury must have been of such character and inflicted under such circumstances as that it might *331have been reasonably anticipated or naturally expected to occur.” (Italics supplied.) 93 So. at pages 156-157.

In Kenan v. Houstoun, 1952, 150 Fla. 357, 7 So.2d 837, 838, where, after alighting from the Florida East Coast train, plaintiff was struck on the legs by an ejection of steam from a nearby L&N train causing her to move about rapidly and fall over baggage, the court, in quashing a judgment against the Florida East Coast Railway, stated:

“ * * * When it appears that the agency which caused the injury was other than defendant or its agents the plaintiff must prove that defendant knew or by the exercise of ordinary care could have known of it in time to remove the cause of the injury. 10 Am.Jur. 173, Chesapeake & O. Ry. Co. v. Burton, 4 Cir., 50 F.2d 730, 731.

“It is settled law that under the facts stated the Florida East Coast was bound to furnish Mrs. Houstoun reasonably safe facilities for leaving the train and to remain in the station but unless said company or its agents were in some way responsible or could have foreseen and prevented the accident, it cannot be held responsible for injury caused by the negligent act of a third person. In this case, the L. and N. Railway was the third person and we think was responsible for the accident. It was in no way attributable to the negligence of petitioner nor do we know of any criterion by which it could have been put on notice of it. It had not happened before and the character of it was of such a nature that it could not have been reasonably foreseen.” (Italics supplied.)

Therefore, in Hall v. Seaboard Air Line Ry. Co. and Kenan v. Houstoun, supra, the rule may be generally stated that a carrier is liable for injury to its passenger caused by a fellow passenger or a third party if such injury by its nature could have been “reasonably anticipated” or “naturally expected to occur” or “reasonably foreseen” in time to have prevented the injury. [84 Fla. 9, 93 So. 157.] If the injury could have been reasonably anticipated in time to have prevented its occurrence, the carrier is subjected to the highest degree of care to its passenger either to protect him from or to warn him of the danger.4

It was impossible for the driver to have protected the Bullocks from Poppell’s assault after his intent became evident, but we think that the district court was clearly erroneous in holding that Tamiami could not have reasonably anticipated or foreseen the danger to the Bullocks in time to have at least warned them of its imminence. We can visualize no stronger case than this to show a situation where two bus drivers and the bus company officials should have reasonably anticipated that mischief was hovering about and that the Bullocks were in some danger.

The first driver testified that many people in West Florida would not approve of the Bullocks’ being seated together toward the front of the bus. Driver Cunningham stated that there would have been less chance of trouble if the Bullocks had been sitting in the back. The first driver, after explaining to a complaining passenger that he could not move the Bullocks, heard another passenger say something like “they probably will move on down the line.” Both drivers had actual notice of the two Company bulletins dated January 31, 1953, and January 23, 1956, the latter plainly warning the drivers of possible racial disturbances.5 Certainly, the first driver *332and, no doubt, Cunningham knew the Bullocks were Jamaicans and British Nationals, and it is logical to infer that the drivers knew the Bullocks were not experienced with “southern tradition.” All of the appellee’s witnesses testified that this was the first instance they knew of in that part of the country where a Negro man and a seemingly white woman were seated together on a public carrier.

Furthermore, this Court will take judicial notice (as the district court should have done) of the commonly and generally known fact that the folkways prevalent in Taylor County, Florida, the county seat being Perry, would cause a reasonable man, familiar with local customs, to anticipate that violence might result if a Negro man and a seemingly white woman should ride into the county seated together toward .the front of an inter urban bus.6

The next question is whether or not Tamiami, so charged with a duty of foreseeing danger to its passengers, took proper precautions to avoid such danger by the “utmost care and diligence of very cautious persons.” 7 We think that Tamiami failed to exercise this care in several ways. It should have instructed its agency in Jamaica to. advise Negroes applying for passage’ through the southern part of the United States of the South’s tradition of segregation.. It should have instructed its driver to advise Negroes who were obviously foreigners, here known to be such, of segregation customs. The driver should have explained to the Bullocks his reasons for wanting them to move. Above all, the driver should not, either willfully or negligently, have informed the assailant of the Bullocks’ position on the bus and of their apparent color and lack of color.

The district court found, at least impliedly, that Tamiami was not guilty of any willful or aggravated misconduct justifying the imposition of punitive damages, and to that extent its finding is not clearly erroneous. Upon the present record, however, we conclude that the danger should reasonably have been foreseen by Tamiami in time to act with the utmost care to avoid injury to its passengers, particularly by warning them and by not doing foolish things to increase their danger, and that Tamiami breached the duty owed to its passengers, the appellants. The judgment is therefore reversed and the cause remanded with directions8 to enter judgment for each of the plaintiffs, appellants, and upon the evidence contained in this record, to award each of them reasonable compensatory damages, including damages for physical injury and mental suffering and humiliation.9

Reversed and remanded with directions.

. “Q. Mr. Poppell did you go on a bus in Perry and assault this man right here?

A. Yes, I did.

“Q. Did you know he was on that bus before you went on there? A. Well, yes, I did.

“Q. Is that the reason you went on the bus? A. Well, not exactly.

“Q. Where were you going on that trip? A. I have got a farm out this side of Perry.

“Q. About how far is it? A. Approximately ten miles, maybe twelve.

“Q. Mr. Poppell, how did you know that the Reverend Bullock was on that bus? A. Well, the police and I were sitting down there drinking coffee and I overheard the conversation of the bus •driver telling the police that they were on there. He didn’t say they were on there, he said, talking to them, ‘fellows look what I have got to contend with and nothing I can do about it.’ And the police says, ‘our hands are tied too.’

“Q. He told that to the police officers ? A. The best I remember that was the words said.

“Q. You heard — how far away were you? A. Well, I was sitting down there at the table.

“Q. At the table with the police officers? A. Yes, I was.

“Q. Then what did you say? A. I didn’t say anything right then. In a few minutes I got up and asked if I could buy a ticket on the bus.

“Q. You asked the bus driver that? A. Yes.

“Q. Then what did he say? A. He said he had them for sale.

“Q. Mr. Poppell have you got anything against colored people, generally? A. Not as long as they stay in their place.

“Q. Well, why did you assault him? A. Because he was out of his place.

“Q. I-Iow did you know he was out of his place? The bus wasn’t full then, was it? A. Not at that time, it wasn’t, but when everybody got on it was full. Whenever I got on it wasn’t full.

“Q. How do you know it wasn’t full? A. Well, there was plenty of loading space in the rear of the bus, but there wasn’t any in the front.

“Q. Did anything the bus driver say lead you to believe he wasn’t in his place ? A. Well, I don’t know whether you would figure it was what the bus driver said or what I felt that he was out of his place too.

“Q. Isn’t it true that you wouldn’t have known, Mr. Poppell, about the Bullocks being on the bus if it had not been for the bus driver? A. Well, I probably wouldn’t have noticed it.

“Q. Then if you hadn’t noticed it, you would not have gotten on the bus, isn’t that right? A. Well, I couldn’t say whether I would or wouldn’t, because I just really don’t know whether I would have gotten on there or not. My in*329tention was not getting on there but then I decided to go.

“Q. At the time you heard the bus driver speaking you had no intention of getting on that bus, and you had your car didn’t you? A. Yes, I did. I reckon I did. Yes, I did.

“Q. And when you heard the bus driver say something then you decided to get on the bus, isn't that right? A. Yes, that helped.

“Q. Mr. Poppell in your testimony in this court yesterday, you stated that you had nothing against colored people? A. that’s right.

“Q. You added that if they kept their place? A. That’s right.

“Q. Did you attack the Reverend Bullock simply from the fact he was seated on the bus? A. Well, yes. And I wanted to see and as a matter of fact he was with a white woman.

“Q. Wliat do you mean, with a white woman? A. Well, his wife is supposed to be white, I understand.

“Q. How did you know who his wife was? Had you ever known the Bullocks before this? A. No.

“Q. How did you know who his wife was? A. Well, she was pointed out as she came in the bus station.

“Q. AVas it the bus driver that pointed her out? A. I believe he made a remark to the policeman that that was his wife coming in.

“Q. llow did you happen to hear this? A. AVell, I was sitting with the policemen.

“Q. With the policemen? A. Yes, sir.

“Q. How far were you from the bus driver? A. AVell, it is just like the table in the restaurant, I was sitting down at one end of it and one of the policemen was sitting on the opposite side and one on this side. And the bus driver walked up to the table.

“Q. And he spoke to the policemen? A. Yes.

“Q. And what did he say, Mr. Powell (sic), again? A. I believe he says, ‘and that is his wife there.’

“Q. And lie pointed out Mrs. Bullock? A. Y es.

“Q. And she appeared to you to be white at that time? A. Yes, she did.

“Q. Did lie say anything about the man on the bus being married to a white woman? A. I don’t remember.

“Q. Maybe this will refresh your recollection — did he say the man on the bus was married to a white woman? A. I believe he did.

“Q. Did you hear it? A. Yes.

“Q. How far away were you from him? A. AAell, he was standing at the head of the table and I was sitting down.

“Q. Now, of the two things, which do you think is the worse, in your opinion — -

a: * * * *

“A. AVell, that’s about fifty-fifty proposition.

“Q. You moan you don’t like either one? A. Either one. Otherwise he was out of his place in my opinion in the front of the bus and he was certainly out of his place being married to a white woman.

“Q. Mr. Poppell when you went in there and asked him to move you didn’t give him a chance to move? A. AVell, I expected a fight back so I didn’t give him too much a chance.

“Q. Why did you expect a fight back? A. I didn’t figure he was going to give up his seat.

“Q. AVhy did you figure that he wouldn't give up the seat? A. AVell, just a matter of my opinion.

“Q. Is it a practice that all colored people in Perry have to move back? A. Yes.

“Q. Why did you expect this to be any different? A. Well, I guess by him riding so far without any trouble.

“Q. Actually didn’t you know that he had been asked to move? A. Yes, I did.

“Q. How did you find that out? A. I believe that the bus driver made the statement.

“Q. Now, is it your testimony that everything you knew about this man came from the bus driver or was there anyone else who told you anything about it? A. No, it wasn’t discussed. The bus driver didn’t tell me anything at all and it wasn’t discussed with anybody else. All I knew was what I overheard.”

4.2.2.2.5.3 Ad Hoc Special Relationships 4.2.2.2.5.3 Ad Hoc Special Relationships

4.2.2.2.5.3.1 Lauritzen v. Lauritzen ("The Couples Lawsuit Case") 4.2.2.2.5.3.1 Lauritzen v. Lauritzen ("The Couples Lawsuit Case")

How does the plaintiff try to establish a special relationship in this case, and why don't those efforts succeed?

Washington Court of Appeals

74 Wash. App. 432

No. 15777-2-II

1994-06-02

[No. 15777-2-II.

Division Two.

June 2, 1994.]

Christine Lauritzen, Appellant, v. Bret Lauritzen, Respondent.

*434 Stanley J. Rumbaugh and Rumbaugh & Rideout, for appellant.

David M. Jacobi and Wilson, Smith, Cochran & Dickerson, for respondent.

Alexander, J.

Christine Lauritzen (Christine) appeals an order of the Pierce County Superior Court granting a summary judgment in favor of her husband, Bret Lauritzen (Bret). She contends that the trial court erred in concluding, as a matter of law, that Bret, the driver of a vehicle in which she was riding as a passenger when she was injured by a third party, had no legal duty to protect her from the foreseeable criminal acts of that third party. We affirm.

On January 7,1990, the Lauritzens, residents of Puyallup, arrived in Miami, Florida, for several days of vacation, after spending a week vacationing on Grand Cayman in the Cayman Islands.1 The Lauritzens had been warned by friends and relatives "to be careful” in Miami because it was "different” from Grand Cayman. They were also warned to "watch [their] back all the time, that there are certain areas to stay out of’ including areas "along the beachfront”. When they arrived at their hotel in Miami, they found a pamphlet in their room that warned visitors to take various security measures, including locking doors and identifying people before opening the door. Christine also observed that there were "three deadbolts on the door and cameras around”.

*435On the day following their arrival in Miami, Bret and Christine drove into "Miami City” in order to do some shopping. As they left a store late in the day, an employee told them "to hurry up and get to [their] car because it got quite dangerous when the police kind of get ready and leave”. The store employee also told them to "be careful[,] get to you[r] car[,] and get out of here”. Christine observed that this area of the city was "a very bad area to be after dark”.

The Lauritzens reached their car safely. As they departed the parking lot between 6:45 and 7 p.m., Bret asked the parking attendant about the best route to return to the freeway that would take them to their hotel in the "[Miami] beach area”. The attendant told Bret that "it’s real easy. . . . when you get out of here, take the left, and you’ll hit the on-ramp right there”. Bret left the parking lot and turned right, telling Christine, "I’m going my own way home. . . . I’m going to take the scenic route”.

They soon became lost, and Bret became angry. Whenever Christine tried to give directions, Bret told her to "shut [her] mouth”. At one point they drove by a police station, and Christine suggested that they stop and ask directions. Bret refused. Christine also suggested that they go back to the parking lot and follow the parking attendant’s directions. Bret again refused. Although Bret had a map on his lap as he was driving, he would not let Christine examine it. After driving for approximately 45 minutes to 1 hour, they arrived, according to Christine, in "a very ugly part of town”.

Bret finally pulled into the parking lot of a convenience store in order to examine his map with better light. The Lauritzens remained in the vehicle. Approximately 5 minutes later, Christine, while looking through the mirror on her side, saw a person "kind of crouch down, coming around the car”. She screamed, and a rock crashed through the window. The unidentified assailant then reached into the car and grabbed a shopping bag that was lying on the floor of the car. Bret "put the car in drive and took off’. As they sped away, Bret asked her if she was shot. Christine *436answered that she "didn’t know, and . . . wasn’t going to look because [she] felt real f[a]int”.

Bret eventually pulled the car into a gas station, where he called the police. It was later discovered that Christine had been injured by flying glass from the shattered window.

Christine thereafter filed a complaint in Pierce County Superior Court against Bret, generally alleging that Bret was negligent in failing to adequately protect her safety in that he placed her in the danger that ultimately resulted in her being injured. Bret denied liability and moved for summary judgment, contending that, under the circumstances, he had no legal duty to protect his wife from the criminal acts of third parties. In support of his motion, Bret submitted Christine’s complaint and excerpts from her deposition. In opposition to the motion, Christine submitted additional excerpts from her deposition. The trial court granted Bret’s motion, concluding that Bret owed Christine no legal duty under the circumstances.

Following Christine’s appeal to this court, we requested additional briefing on the question of which law should apply, Washington’s or Florida’s.

Bret contends that the trial court should have applied Florida law, which he claims would bar this action pursuant to Florida’s interspousal immunity doctrine. Christine asserts that the trial court properly applied Washington law to the merits of the case.

In any conflict of laws case, our first task is to determine if an actual conflict of laws exists. "An actual conflict between the law of Washington and the law of another state must be shown to exist before Washington courts will engage in a conflict of law analysis.” Burnside v. Simpson Paper Co., 123 Wn.2d 93, 103, 864 P.2d 937 (1994); International Tracers of Am. v. Estate of Hard, 89 Wn.2d 140, 144, 570 P.2d 131 (1977), appeal dismissed, 435 U.S. 1004 (1978). If the laws and interests of the concerned states are not in conflict the result is deemed a "false” conflict or no conflict at all. Burnside, at 100 n.3; see Robert A. Leflar et al., American Conflicts Law § *43792, at 270-73 (4th ed. 1986). In the absence of a conflict, the forum is free to apply its own law. Burnside, at 104.

We are persuaded that no conflict exists between Florida law and Washington law. The doctrine of interspousal immunity has been abolished in both states. See Freehe v. Freehe, 81 Wn.2d 183, 192, 500 P.2d 771 (1972); Waite v. Waite, 618 So. 2d 1360, 1361 (Fla. 1993) ("[W]e now find that there no longer is a sufficient reason warranting a continued adherence to the doctrine of interspousal immunity. . . . [B]oth public necessity and fundamental rights require judicial abrogation of the doctrine.”).2 Thus, it is unnecessary for us to engage in a conflict of laws analysis of the laws and policies of the two states and we will simply apply Washington law in determining the issues presented by this appeal.

Christine contends that the trial court erred in concluding, on summary judgment, that Bret, as the driver of a vehicle, owed no legal duty to Christine, as a passenger, to protect her from foreseeable criminal acts of an unknown third party. Bret asserts that such a duty has never been recognized under Washington law, and that we should decline to recognize one now.

Summary judgment is properly granted when the pleadings, affidavits, depositions and admissions on file demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); Kesinger v. Logan, 113 Wn.2d 320, 325, 779 P.2d 263 (1989). All facts and reasonable inferences must be considered in the light most favorable to the non-moving party, and summary judgment should be granted only if, given all of the evidence, reasonable persons could reach but one conclusion. Scott v. Pacific W. Mt. Resort, 119 Wn.2d 484, 502-03, 834 P.2d 6 (1992); Kesinger, at 325. The burden is on the moving party to demonstrate that there is no issue of material fact. Scott, at 503. We review a trial court’s grant of summary judgment de novo, and engage in *438the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).

In order to prove actionable negligence, a plaintiff must establish: (1) the existence of a duty owed to the complaining party; (2) a breach of that duty; (3) injury; and (4) that the claimed breach was a proximate cause of the resulting injury. Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992); Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984). A threshold question in any negligence case is whether the defendant owed a duty of care to the plaintiff. Whether a defendant owes a duty of care to a plaintiff is a question of law. Hansen, at 479; Pedroza, at 228. Absent a duty of care, a defendant is not subject to liability for negligent conduct.

Under the common law "a private person does not have a duty to protect others from the criminal acts of third parties”. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 223, 802 P.2d 1360 (1991); see E.L. Kellett, Annotation, Comment Note — Private Person’s Duty and Liability for Failure To Protect Another Against Criminal Attack by Third Person, 10 A.L.R.3d 619 § 3 (1966) (hereinafter Annot., Duty and Liability) (collecting cases). Washington has recognized an exception to this general rule in cases where "a special relationship exists between the defendant and either the third party or the foreseeable victim of the third party’s conduct”. Hutchins, at 227 (quoting Petersen v. State, 100 Wn.2d 421, 426, 671 P.2d 230 (1983)).

The "special relationship” that triggers a duty of care is described in the Restatement (Second) of Torts § 315 (1965), which provides as follows:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Petersen, 100 Wn.2d at 426 (quoting with approval Restatement (Second) of Torts § 315 (1965)).

*439Both Bret and Christine concede that there was no special relationship between the unknown assailant and Bret to warrant the imposition of a legal duty under subsection (a). Despite this concession, Christine relies in part on Petersen, at 428, where our Supreme Court held that a psychiatrist had a duty to take reasonable precautions to protect foreseeable victims from the criminal acts of the psychiatrist’s patient because of the special relationship between the psychiatrist and the patient under § 315(a). This holding has no applicability to our analysis as to whether a duty exists here under subsection (b) because, as we have noted, Christine did not allege a special relationship between Bret and the criminal actor.

Christine contends that under § 315(b) of the Restatement, a special relationship existed between Christine and Bret, not as husband and wife, but as driver and passenger, that gave rise to a legal duty on the part of Bret to afford her "a right to protection”. She asks us to recognize this special relationship under Washington law.

Those relationships between a defendant and a foreseeable victim that have been previously recognized by Washington courts as "special”, and, therefore, giving rise to a legal duty to protect the victim from foreseeable criminal acts of third parties, have been described as "protective in nature, historically involving an affirmative duty to render aid”. Hutchins, at 228; see W. Page Keeton et al., Prosser and Keeton on Torts § 56, at 383 (5th ed. 1984) (hereafter Prosser & Keeton). Examples of special relationships include: a school district toward a pupil, McLeod v. Grant Cy. Sch. Dist. 128, 42 Wn.2d 316, 319-22, 255 P.2d 360 (1953); an innkeeper to his or her guests, Miller v. Staton, 58 Wn.2d 879, 883, 365 P.2d 333 (1961) (duty of innkeeper to protect guests from criminal activity of other guests); a common carrier to its passengers, Hutchins, at 228;3 an employer to his or her employees, *440 Bartlett v. Hantover, 9 Wn. App. 614, 621, 513 P.2d 844 (1973) ("employer has a duty to make reasonable provision against foreseeable dangers of criminal misconduct to which the employment exposes the employee”), rev’d in part on other grounds, 84 Wn.2d 426, 526 P.2d 1217 (1974); a hospital to its patients; and a business establishment toward its customers. See Hutchins, at 228 (citing examples from Prosser & Keeton § 56, at 383).

In all of the above, the special relationship involved situations where one party was, in some sense, entrusted with the well being of another. The entrustment aspect is what appears to us to underlie the imposition of the additional duty to protect someone from foreseeable criminal acts of third parties. Christine asks us to recognize a new special relationship that would trigger a legal duty — namely, the relationship between an automobile driver and his or her passenger. She does not cite, nor have we been able to locate, a decision of any court that recognizes such a "special relationship”.

There are admittedly some similarities between a driver/ passenger relationship and those "special relationships” that have been recognized previously by Washington courts. The driver of an automobile, like an employer, innkeeper, or common carrier, has substantially more control over the place where the incident occurred and the activities in and around that place than does the subordinate passenger. Furthermore, the passenger has no ability to direct the vehicle, and no ability to exit the vehicle while it is in motion. The major difference, however, is that in all the situations where a special relationship has been recognized, the party that has been found to have a legal duty was in a position to provide protection from foreseeable criminal acts of third parties because he or she had control over access to the premises *441that he or she was obliged to protect. Employers and innkeepers, as we have noted above, are obliged to provide some protection to employees and guests on their premises. The same rationale applies to schools, hospitals, business establishments, and common carriers.

Drivers of passenger vehicles and passengers do not appear to be in the same situation. A driver of a car clearly is not in control of the surrounding streets and highways or the conduct of other persons using those streets or highways. It is difficult to imagine what reasonable precautions a driver could take, beyond locking doors, to control access to a vehicle while, for instance, it is stopped at a traffic light or parked in a parking lot.4

Furthermore, most of the existing special relationships involve situations where the prospective defendant (employer, innkeeper, business owner) is benefiting financially from the prospective plaintiff (employee, guest, business invitee). See Annot., Duty and Liability § 2, at 625. There is ordinarily no such financial relationship between driver and passenger. Finally, there is no historic duty on the part of a driver to render aid to a passenger. See Hutchins, at 228.

In at least one special relationship recognized in Washington, the scope of the duty to protect someone against the criminal acts of a third party has been limited somewhat. Innkeepers are responsible only for protecting their guests from the criminal acts of other guests. Miller, at 883. If a duty on the part of a driver to protect a passenger from criminal acts of a third party is eventually recognized, it should be similarly narrow.5 For instance, there may be an argument for *442a "special relationship” giving rise to a legal duty on the part of a driver to protect a passenger against foreseeable criminal acts by other passengers. That would be consistent with the aforementioned duty of an innkeeper to protect guests from the criminal acts of other guests. See Waldron v. Hammond, 71 Wn.2d 361, 363, 428 P.2d 589 (1967); Miller, at 883. Christine asks us to define a broader duty.

If we were to require a driver to protect his or her passenger from foreseeable criminal acts of third parties we would be requiring more of that person than we do of other persons in the "special relationships” that have previously been recognized in Washington. Even if we were to view the driver’s automobile as his or her "premises”, the duty would necessarily extend beyond the reach of the vehicle itself given the inherent mobility of an automobile. Given the unfortunate fact of pervasive crime and violence in many urban areas, drivers could, if we were to adopt Christine’s position, be held liable for merely driving in an urban area at night, because criminal acts are certainly foreseeable in such areas. We are not inclined to impose such a duty.

Christine further asks us to recognize a special relationship between an automobile driver and a passenger based on a balancing of public policies. She relies on Roberts v. Pinkins, 171 Mich. App. 648, 430 N.W.2d 808 (1988), a case decided by the Michigan Court of Appeals, and a law review article, Gregory A. Crouse, Comment, Negligence Liability for the Criminal Acts of Another, 15 J. Marshall L. Rev. 459 (1982). The Pinkins court established a balance of interests to determine if a special relationship exists. "[T]he court must balance the societal interests involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence, and the relationship between the parties.” Pinkins, at 652. Additional factors that contribute to the finding of a duty include the foreseeability of criminal activity, the defendant’s ability to cope with the proposed duty, the victim’s inability to protect himself or herself from criminal activity, the costs of providing protection, and whether the plaintiff bestowed some economic benefit on the *443defendant. See also Annot., Duty and Liability § 2, at 624-25. For the reasons stated previously, we are persuaded that these factors weigh against imposing a duty on a driver.

III

Christine next cites the Restatement (Second) of Torts § 302B to support her claim that Bret owed her a duty. That section provides that, even absent a special relationship, there may be some situations where a duty arises to protect a person from the criminal acts of third parties.6 However, § 302B recognizes a duty if "the defendant’s property affords a special (or peculiar) temptation or opportunity for crime” or if the defendant’s affirmative actions bring about a special "temptation or opportunity” for criminal conduct. Hutchins, at 230-32. Bret’s vehicle did not, in our judgment, present a special temptation as it sat in the parking lot of a convenience store. Comment d to § 302B explains that a defendant may "proceed upon the assumption that others will obey the law”. Hutchins, at 230. Bret did exactly that. He had no prior knowledge of specific criminal activity in the exact location where he parked the car. In Hutchins, the court found that this section of the Restatement did not apply to the owner of a building in which a person was attacked, observing that "[c]riminal conduct ... is an unfortunate fact of urban life. . . . [and] if we were to hold to the contrary, we would essentially make urban land possessors the insurers of all those passing on public sidewalks or streets.” Hutchins, at 232-33. The same logic applies to the facts of this case. No duty exists under § 302B.

In light of all the authorities noted above, we conclude that there was no "special relationship” between Bret Lauritzen, as a driver of a private passenger vehicle, and Christine Lauritzen, as his passenger, which gave rise to a *444duty on the part of Bret to protect her from the foreseeable criminal acts of third parties.7

Affirmed.

Morgan, C.J., and Seinfeld, J., concur.

Review denied at 125 Wn. 2d 1006 (1994).

4.2.2.2.5.4 Public Duty Rule 4.2.2.2.5.4 Public Duty Rule

4.2.2.2.5.4.1 Morgan v. District of Columbia ("The Officer Case") 4.2.2.2.5.4.1 Morgan v. District of Columbia ("The Officer Case")

Focus on the doctrinal details of the public duty rule. What is the effect of this doctrine? Does it make sense?

468 A.2d 1306 (1983)

Garnett P. MORGAN, et al., Appellants,
v.
DISTRICT OF COLUMBIA, Appellee.

No. 79-588.

District of Columbia Court of Appeals.

Argued En Banc February 18, 1983.Decided September 30, 1983.^[*]

1308 *1308 Harlow Case, with whom Jack H. Olender, Washington, D.C., was on the response to the petition, for appellants.

Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Washington, D.C., at the time of en banc argument, was on the petition, for appellee.

Before NEWMAN, Chief Judge, KERN, NEBEKER, MACK, FERREN, PRYOR, BELSON and TERRY, Associate Judges, and GALLAGHER and KELLY^[**], Associate Judges, Retired.

GALLAGHER, Associate Judge, Retired:

In an action for negligence and wrongful death against the District of Columbia, a jury returned a verdict in favor of appellants on March 6, 1979. On April 20, 1979, the trial court granted the District of Columbia's motion for judgment notwithstanding the verdict on the ground that appellants had failed to establish the applicable standard of care by which to measure the actions of police officers in the performance of their official duties. In a split-decision, a three-judge panel of this court reversed the trial court and reinstated the jury's verdict. Morgan v. District of Columbia, 449 A.2d 1102 (D.C.1982). The full court vacated the panel's decision and heard arguments en banc. We affirm the trial court's grant of the motion for judgment notwithstanding the verdict.

Absent a special relationship between police department and victim, liability for failure to protect individual citizens from crime does not generally lie against police officials, who occupy positions necessarily fraught with discretion in the administration of justice. Appellants do not fall within the narrow exception to this longstanding rule. Furthermore, the facts of this case, as a matter of law, cannot support a finding of negligence by the city.

In August 1974, Garnett Pinkney Morgan telephoned Metropolitan Police Department Seventh District Headquarters and spoke to Captain Francis J. Tiernan. She told Tiernan that her husband, Officer John Morgan, Jr., who was then assigned to the Seventh District, had threatened her with a gun the night before at their home in Maryland and a month earlier had beaten her, causing her eye to bruise. According to her testimony at trial, Morgan had come home in the early morning hours and after dragging her out of bed, "put the gun to my head and told me that if I didn't leave within the next couple of days, that he would kill me." Morgan then sat in the bedroom chair and eventually fell asleep, whereupon Garnett Morgan left for her mother's house, taking the two-year old and four-year old children with her.

That afternoon, Morgan called Captain Tiernan and explained what had happened, including the earlier eye injury. She told him that she was at her mother's house and was afraid that her husband was going to kill her. Garnett Morgan then asked Captain Tiernan if he "would just make [her husband] stay away" from her. Tiernan suggested she file a complaint with the Maryland authorities because the alleged assault had occurred in her Maryland home. She declined to do so because she did not want to "intimidate" her husband by "having police come to the house. I don't know what he may have done at that time." She also did not want to file a written complaint against her husband with Captain 1309 *1309 Tiernan; rather, she had called Tiernan "asking for his assistance with my husband, and just to ask [her husband] to stay away from me." Tiernan told her that he could not "put a man out of his own house," but that when Officer Morgan reported to work he would talk with him and call her back.

Captain Tiernan then contacted Lieutenant Bruce H. Swank, Morgan's immediate supervisor, and asked him to bring Morgan in to talk with them. Officer Morgan had been under Swank's command for the previous two years. During this time, according to Swank's trial testimony, Garnett Morgan had called him several times to complain that "her husband was fighting with her, and that he was beating on her, and generally, they were having family arguments." Each time she called, Swank, as part of his normal procedure in handling these kinds of incidents, asked whether a gun was involved, and each time Garnett Morgan said there was not. In Officer Morgan's personnel file, there was no indication of violent conduct during his five years with the department.^[1]

Captain Tiernan and Lieutenant Swank met for a discussion with Officer Morgan, told him of Garnett Morgan's report that they had been fighting and, "told him that if he couldn't get along with his wife, that he should leave." After the meeting Tiernan called Garnett Morgan. According to her testimony, Tiernan told her that he "had talked with John and had explained some things to him, and he [Tiernan] said that maybe it would be best if we just separated." Thereafter, Garnett Morgan found an apartment and moved into the District of Columbia. She called Captain Tiernan to let him know that she was moving, and also to assure that Officer Morgan was at work when she moved from her Maryland residence. Unable to ascertain this information immediately, she called several times until Tiernan finally was able to inform her that Morgan had reported and would be at work. She quickly packed her belongings along with some furniture and moved into the apartment, not informing her husband of her whereabouts and maintaining an unlisted telephone number.

Three months later, Officer Morgan arrived at his wife's apartment, choked her into unconsciousness, and forced her into his car. Threatening to kill her if she objected, he drove to her parents' home, took their two children and left. Garnett Morgan then called the police. Along with two other officers, Lieutenant John R. Bowles, Jr. responded to the call and she told him what had happened, including the beating in July and the August gun threat. Lieutenant Bowles contacted Officer Morgan and directed him to report to the precinct. Morgan said that he would do so after he brought the children to the Pinkney house. When Morgan arrived, he was met by the Lieutenant, but rather than proceed with him to the precinct, Morgan carried the youngest child, with the older child beside him, toward the house. Lieutenant Bowles walked behind them. Officer Morgan walked into the house, said to his wife, "I told you so," then took out his revolver and shot at her twice; one of the bullets wounded her and the other hit John Keith, his son. Morgan then turned and shot Lieutenant Bowles, shot and killed Elton Pinkney, and surrendered to the police.^[2]

At trial, Garnett Morgan testified to the events of the preceding months, including her telephone call to Captain Tiernan informing him that Officer Morgan had threatened her with his service revolver. 1310 *1310 Captain Tiernan testified that "general orders" require him to conduct an official investigation when anyone, including an officer's wife, reports an improper use of an officer's service revolver. Written statements from the individuals concerned must be obtained and a report and recommendation submitted to his superiors. Captain Tiernan testified that he did not "investigate" Garnett Morgan's complaint^[3] nor did he prepare a written report or recommendation regarding the incident.

I

To avoid later confusion, it is important to state first what this case is not about. It is not about a situation where the police do not respond to an urgent call from a citizen who is in immediate danger of being harmed. In this case, on both occasions the police responded to the requests of Garnett Morgan. Her first request to the police captain was that he speak to her husband in an effort to "keep him away from me" because of the violent threats her husband, a police officer, had made to her. The police complied with this request.

Several months later, the next request was for police aid due to the violence her husband had perpetrated on her and the danger she felt she was then in. The police complied with her request promptly and, when the tragic shootings occurred, the police lieutenant was in the act of arresting her husband — who then briefly eluded the lieutenant by the ruse of returning his children to his wife and perpetrated the shootings.

One may, therefore, rule out in the beginning any notion that this case brings into play other decisions where the police abandon someone in distress or in immediate danger. Here, on both occasions the requests made of the police by Garnett Morgan were complied with promptly. The only genuine question is whether the police should have done more and, not having done more, whether this had, as a matter of law, an attributable relation to the injuries such as to cause responsibility on the part of the city government for damages resulting from the shootings.

II

Over a century ago, the Supreme Court enunciated a rule which remains the law: law enforcement officials and, consequently, state governments generally may not be held liable for failure to protect individual citizens from harm caused by criminal conduct. South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1856); e.g., DeHoney v. Hernandez, 122 Ariz. 367, 372, 595 P.2d 159, 164 (1979) (en banc); Shore v. Town of Stonington, 187 Conn. 147, ___, 444 A.2d 1379, 1381 (1982); Warren v. District of Columbia, 444 A.2d 1, 3 (D.C.1981); Crouch v. Hall, 406 N.E.2d 303, 304 (Ind.App.1980); Porter v. Urbana, 88 Ill.App.3d 443, 445, 43 Ill.Dec. 610, 612, 410 N.E.2d 610, 612 (1980); Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 536 P.2d 54 (1975); Riss v. City of New York, 22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897 (1968); Trujillo v. City of Albuquerque, 93 N.M. 564, 569, 603 P.2d 303 (1979); Chapman v. City of Philadelphia, 290 Pa.Super. 281, 283, 434 A.2d 753, 754 (1981); Walters v. Hampton, 14 Wash.App. 548, 543 P.2d 648 (1975); see generally 18 E. MCQUILLAN, MUNICIPAL CORPORATIONS §§ 53.04a, b (3d ed. 1977); Note, Police Liability for Negligent Failure to Prevent Crime, 94 HARV.L.REV. 821 (1981) [hereinafter cited as Police Liability]; Annot., 46 A.L.R.3d 1084 (1972). But cf. Stewart v. Schmieder, 386 So.2d 1351, 1358 (La.1980); Coffey v. City of Milwaukee, 74 Wis.2d 526, 534, 247 N.W.2d 132, 137-38 (1976). The rule embodies a doctrine differentiating between public and private duties:

[I]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an 1311 *1311 inadequate or erroneous performance, must be a public and not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it [im]properly, is an individual wrong and may support an individual action for damages.

2 COOLEY, TORTS § 300 at 385-86 (4th ed. 1932) (citation and footnotes omitted). A duty to protect individuals from criminal conduct "is a public duty, for neglect of which the officer is amenable to the public, and punishable by indictment only." South v. Maryland, supra, 59 U.S. at 403; see Warren v. District of Columbia, supra, 444 A.2d at 4; Shore v. Town of Stonington, supra, 187 Conn. at ___, 444 A.2d at 1381-82; Crouch v. Hall, supra, 406 N.E.2d at 304-05.

In recent years, municipalities have experienced a rash of lawsuits aimed at holding public officials at various levels of supervisory responsibility accountable for torts committed during the course of their duties. As a result, courts have had occasion to consider, and to reaffirm, the various policies which have led the law to determine that the duty to prevent crime is a general duty owed to the public and, therefore, unenforceable by any one individual. Shore v. Town of Stonington, supra, 187 Conn. at ___, 444 A.2d at 1382 (discussing relation of duty to policy); see W. PROSSER, TORTS § 53 (4th ed. 1972) (concept of duty expresses "sum total" of policy considerations). Foremost is the practical realization that individuals, juries and courts are ill-equipped to judge "considered legislative-executive decision[s]" as to how particular community resources should be or should have been allocated to protect individual members of the public. Riss v. City of New York, supra, 22 N.Y.S.2d at 579, 240 N.E.2d at 860, 293 N.Y.S.2d at 897; see Jaffe, Suits Against Governments and Officers: Damage Actions, 77 HARV.L.REV. 209, 237 (1963) ("court cannot undertake to determine whether complex governmental decisions are `reasonable'"). Severe depletion of these resources could well result if every oversight, omission or blunder made by a police official rendered a state or municipality potentially liable in compensatory, let alone punitive damages. Massengill v. Yuma County, 104 Ariz. 518, 523, 456 P.2d 376, 381 (1969) (en banc). In effect, police officials would be placed in the position of insuring the personal safety of every member of the community, notwithstanding limited resources and the inescapable choices of allocation that must be made. See Porter v. Urbana, supra, 88 Ill.App.3d at 446, 43 Ill.Dec. at 612, 410 N.E.2d at 612; Walters v. Hampton, supra, 14 Wash.App. at 554, 543 P.2d at 652 (city cannot be made "insurer" against every harm posed by criminal act). Moreover, police officials who act and react in the milieu of criminal activity where every decision to deploy law enforcement personnel is fraught with uncertainty must have broad discretion to proceed without fear of civil liability in the "unflinching discharge" of their duties. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949). As the Connecticut Supreme Court recognized, the public interest is not served "by allowing a jury of lay [persons] with the benefit of 20/20 hindsight to second-guess the exercise of a police [officer]'s discretionary professional duty. Such discretion is no discretion at all." Shore v. Town of Stonington, supra, 187 Conn. at ___, 444 A.2d at 1384.

Other practical considerations come to bear at the level of day-to-day law enforcement. If the police were held to a duty enforceable by each individual member of the public, then every complaint — whether real, imagined, or frivolous — would raise the spectre of civil liability for failure to respond. Rather than exercise reasoned discretion and evaluate each particular allegation on its own merits the police may well be pressured to make hasty arrests solely to eliminate the threat of personal prosecution by the putative victim. Porter v. Urbana, supra, 88 Ill.App.3d at 445, 43 Ill.Dec. at 612, 410 N.E.2d at 612. Such a result historically has been viewed, and rightly so, as untenable, unworkable and unwise. Furthermore, 1312 *1312 other effective mechanisms exist to control the behavior of errant police officials. Internal Metropolitan Police Department disciplinary proceedings, for example, provide a forum whereby individual officials may be held accountable for dereliction of duty, D.C.Code § 4-117 (1981), and officers who fail to arrest law breakers face formal criminal prosecution with the potential for two years' imprisonment. D.C.Code § 4-142 (1981); see Warren v. District of Columbia, supra, 444 A.2d at 8. Realistically speaking, while public prosecution does little to console those who suffer from the mistakes of police officials, on balance the community is better served by a policy that both protects the exercise of law enforcement discretion and affords a means of review by those who, in supervisory roles, are best able to evaluate the conduct of their charges.

In narrow situations, however, the no-liability rule does not apply. Where a "special relationship" exists between the police and a particular individual, a specific legal duty may be created rendering the police liable for failure to act. Warren v. District of Columbia, supra, 444 A.2d at 3; see Police Liability, supra at 824 ("courts universally recognize a duty when a `special relationship' exists between the plaintiff and the police"); see generally MCQUILLAN, supra at § 53.04b. Although the police have no obligation to act at the behest of any one individual, once they begin to act on behalf of a particular citizen in such a way as to raise significantly the quotient of risk over and above the risks assumed by every other member of the community, additional responsibilities arise. In the words of then Judge Cardozo:

The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all .... If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward.

H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167, 159 N.E. 896, 898 (1928). Determining when a special relationship exists between the police and an individual is the inquiry to which we now turn.

Analysis begins by considering the boundaries of the exception. A special relationship undoubtedly exists where an individual assists law enforcement officials in the performance of their duties. In Schuster v. City of New York, 5 N.Y.2d 75, 154 N.E.2d 534, 180 N.Y.S.2d 265 (1958), plaintiff's intestate supplied the police department with information leading to the arrest of Willie Sutton, a dangerous fugitive and a criminal of infamous reputation. Immediately thereafter, plaintiff's intestate received various threats against his life and notified the police, but they refused to provide protection on his behalf. Three weeks later he was shot and killed while walking home one evening. Carving out an exception to the no-liability rule, the New York Court of Appeals held that a municipality "owes a special duty to use reasonable care for the protection of persons who have collaborated with it in the arrest or prosecution of criminals, once it reasonably appears that they are in danger due to their collaboration." Id. at 80-81, 154 N.E.2d at 537, 180 N.Y. S.2d at 269. Other courts have similarly upheld municipal liability where the police affirmatively engage the assistance of a particular individual and then fail to protect him. See Swanner v. United States, 309 F.Supp. 1183 (M.D.Ala.1970) (duty to protect informant endangered because of aid to federal law enforcement officials); Gardner v. Village of Chicago Ridge, 71 Ill.App.2d 373, 219 N.E.2d 147 (1966) (liability upheld where police failed to protect witness summoned to make identification); Christy v. City of Baton Rouge, 282 So.2d 724 (La.App.1973) (liability for failure to protect citizen assisting in arrest).

The theory of these decisions stems in part from a concern that failure to impose a duty of protection would discourage citizens 1313 *1313 from cooperating with law enforcement officers. Schuster v. New York, supra, 5 N.Y.2d at 81, 154 N.E.2d at 537, 180 N.Y. S.2d at 269. More importantly, imposing a duty of care in these situations does not interpose the judgment of a jury for the discretion of the police. Rather, where the police make "active use" of a private citizen in the investigation, arrest, or prosecution of a criminal, the police, of their own accord, decide to go forward and in fact do. Id. at 82-83, 154 N.E.2d at 538, 180 N.Y. S.2d at 271; see Gardner v. Village of Chicago Ridge, supra, 71 Ill.App.2d at 379-80, 219 N.E.2d at 150. Having exercised discretion and chosen to act, the police thereby voluntarily assume a duty to proceed with reasonable care to protect individuals whom they have particularly placed in peril by making use of their assistance. See Police Liability, supra at 825-26; see generally PROSSER, supra at 338-39 (courts reluctant to force individuals to act but once action undertaken liability follows for failure to act reasonably).

In contrast, a special relationship does not come into being simply because an individual requests assistance from the police. Hartzler v. City of San Jose, 46 Cal. App.3d 6, 120 Cal.Rptr. 5 (1975) (no duty to protect victim who informs police of imminent danger and requests help); Doe v. Hendricks, 92 N.M. 499, 502-503, 590 P.2d 647, 651 (1979) (no duty to victim to respond promptly to witness' call for help); Riss v. City of New York, supra, 22 N.Y.2d at 579, 240 N.E.2d at 860, 293 N.Y.S.2d at 897 (no duty to comply with victim's repeated request for protection from rejected suitor); see Porter v. City of Urbana, supra, 88 Ill.App.3d at 446, 43 Ill.Dec. at 613, 410 N.E.2d at 613 (recognizing rule). Otherwise, a police officer's general duty to the public inevitably would narrow to a special duty to protect each and every person who files a complaint with the department and attaches a request for help. Under these circumstances, the no-liability rule is particularly salutary: individual citizens are in no position to direct the discretion of police officers whose primary responsibilities must be focused broadly in attending to the safety of the public at large. A plaintiff, in short, "cannot unilaterally call into existence a special relationship." Haehl v. Village of Port Chester, 463 F.Supp. 845, 851 (S.D.N.Y.1978).

Nor is the situation changed when the police gratuitously promise to provide protection. Warren v. District of Columbia, supra, 444 A.2d at 2, 6 (police dispatcher's assurance to rape victims does not create special duty); Henderson v. City of St. Petersburg, 247 So.2d 23, 25 (Fla.App.1971) (police promise to provide plaintiff protection while making business deliveries does not create special duty). Contra Morgan v. County of Yuba, 230 Cal.App.2d 938, 41 Cal.Rptr. 508 (1964) (liability upheld where police promised to inform plaintiff of release of dangerous prisoner but did not). A promise to act adds nothing to the obligation law enforcement officers have already assumed as members of a police force guided exclusively by the public interest. Employed to protect the safety of the community — often with danger to life and limb — a police officer must have discretion to decide how and when to proceed. Reassuring a citizen victimized by criminal conduct that help is on the way certainly does not mean that at all costs the action promised inexorably must follow:

An intention to assume an obligation of indefinite extension to [each] member of the public is ... improbable when we recall the crushing burden that the obligation would impose .... A promisor will not be deemed to have had in mind the assumption of a risk so overwhelming....

H.R. Moch Co. v. Rensselaer Water Co., supra, 247 N.Y. at 165-66, 159 N.E. at 897-98.

Between these boundaries are circumstances where the police do not benefit from a citizen's aid but nevertheless affirmatively act to protect a specific individual or a specific group of individuals from harm, in such a way as to engender particularized 1314 *1314 and justifiable reliance. Illustrative is Florence v. Goldberg, 44 N.Y.2d 189, 375 N.E.2d 763, 404 N.Y.S.2d 583 (1978). In Florence, the police department assigned a school crossing guard to a busy intersection in Brooklyn. The department's rules and regulations provided that if a crossing guard were unable to report for duty, another officer would be assigned to the location or the school principal would be notified to make other arrangements for the children's safety. For the first two weeks of school, plaintiff, mother of a six and one-half year old boy in first grade, walked her son to school, a block away from their home. Each day they crossed the intersection and each day a crossing guard was present. When, two weeks after class began, she accepted an offer of employment, she did not arrange for another adult to help her child across the intersection because of the daily presence of the guard. Thereafter, a crossing guard reported sick one morning, the police department failed either to provide a replacement or to notify the school principal, and the child was hit by a taxicab while attempting to cross the intersection.

The New York Court of Appeals sustained the plaintiff's cause of action against the city, emphasizing two factors. First, in assigning a crossing guard to the intersection, the police voluntarily assumed a duty, not to the general public, but to "a special class of persons — viz., children crossing designated intersections while traveling to and from school at scheduled times." Id. at 196-97, 375 N.E.2d at 767, 404 N.Y.S.2d at 587. Supporting this conclusion were the department's own regulations, specifically setting forth the procedures to be followed for the effective supervision of crosswalks. Second, the child's mother had "reason to rely," and particularly did rely, on the presence of a crossing guard at the intersection; a guard had been there each day she brought her child to school and she would not otherwise have allowed her son to walk back and forth alone. Id.

Other courts have applied similar reasoning in fashioning the special relationship exception, emphasizing the requisites of (1) a specific undertaking to protect a particular individual, and (2) justifiable reliance by the plaintiff. As in Florence (where the police in fact provided a school crossing guard), whether there exists an affirmative undertaking to protect a particular individual turns upon law enforcement actions rather than representations. See Silverman v. City of Fort Wayne, 171 Ind. App. 415, 357 N.E.2d 285 (1976) (where police provided, then withdrew protection of plaintiff's property from riot damage, special relationship may exist); Bloom v. City of New York, 78 Misc.2d 1077, 1078, 357 N.Y.S.2d 979, 981 (1974) (police positively restrained plaintiffs from obtaining alternative safeguards for premises following assurance that protection would be provided — "an affirmative series of acts by which the city assumed a special duty");^[4] see Chapman v. City of Philadelphia, supra, 290 Pa.Super. at 283, 434 A.2d at 754 (special relationship only where "authorities have undertaken the responsibility to provide adequate protection" for individual). In addition, a statute or regulation may describe a special duty to a particular class of individuals. Again as in Florence (where police directives specifically provided procedures to be followed in supervising school crossing guards), the language of the statute or regulation must set forth "mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole." Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 807 (Minn.1979); see State v. Superior Court of Maricopa County, 123 Ariz. 324, 332-33, 599 P.2d 777, 785-86 (1979) (en banc); Stewart v. Schmieder, supra, 386 So.2d at 1358; Gordon v. Holt, 65 1315 *1315 A.D.2d 344, 350-51, 412 N.Y.S.2d 534, 538 (1979).

The second element required to establish a special relationship is justifiable reliance, by the plaintiff, upon the actions of the police. Justifiable reliance, in this context, means particular or special reliance. Haehl v. Village of Port Chester, supra, 463 F.Supp. at 851; see Florence v. Goldberg, supra, 44 N.Y.2d at 196-97, 375 N.E.2d at 767, 404 N.Y.S.2d at 587; see generally DeHoney v. Hernandez, supra, 122 Ariz. at 367, 595 P.2d at 164; Gordon v. Holt, supra, 65 A.D.2d at 351, 412 N.Y.S.2d at 538; cf. Morgan v. County of Yuba, supra, 230 Cal.App.2d at 944, 41 Cal.Rptr. at 512. The definition could not be otherwise. In a civilized society, every citizen at least tacitly relies upon the constable for protection from crime. Hence, more than general reliance is needed to require the police to act on behalf of a particular individual. The plaintiff must specifically act, see Florence v. Goldberg, supra, 44 N.Y.2d at 197, 375 N.E.2d at 767, 404 N.Y.S.2d at 587 (plaintiff discontinued walking son to school, having "reason to rely" on presence of crossing guard), or refrain from acting, see Bloom v. City of New York, supra, 78 Misc.2d at 1078, 357 N.Y.S.2d at 981 (plaintiff restrained by police from providing own safeguards for property), in such a way as to exhibit particular reliance upon the actions of the police in providing personal protection. Liability is established, therefore, if the police have specifically undertaken to protect a particular individual and the individual has specifically relied upon the undertaking.

The theory of this exception to the no-liability rule parallels the rationale of the law enforcement assistance cases. Undertaking to protect a particular individual is an action necessarily preceded by a police officer's decision to act, which is itself an exercise of discretion. Neither a court nor a jury interferes with this decision; rather, review is limited to a determination of whether reasonable care was exercised when, and only when, the police have affirmatively gone forward. The additional element of particular reliance further serves to place law enforcement officials on notice as to the foreseeable consequences of failure to exercise reasonable care, not unlike the knowledge that a citizen employed in law enforcement efforts must be protected from harm. Thus, requiring a specific undertaking to protect a particular individual together with special reliance on the plaintiff's part in order to create a special relationship facilitates dual policies of preserving police discretion while enhancing responsiveness to individuals particularly placed in peril, by police conduct.

Absent a special relationship, therefore, the police may not be held liable for failure to protect a particular individual from harm caused by criminal conduct. A special relationship exists if the police employ an individual in aid of law enforcement, but does not exist merely because an individual requests, or a police officer promises to provide protection. Where the police by their actions affirmatively undertake to protect an individual under circumstances creating a special relationship or there is a statute or regulation which mandates protection of a particular class, and where the individual justifiably relies upon such undertaking of the police, or the statute or regulations, the special relationship is sufficient to support a finding of liability.^[5] We now turn to apply these principles.

1316 *1316 III

The duty of the Metropolitan Police Department to protect the citizens of the District of Columbia from crime is a public duty, unenforceable by any one individual. Thus, as a general principle, the District of Columbia is not liable for the injury to Garnett Morgan arising from the criminal conduct of her husband. South v. Maryland, supra, 59 U.S. (18 How.) at 403; Warren v. District of Columbia, supra, 444 A.2d at 3; see MCQUILLAN, supra at § 53.04a. Indeed, the circumstances here uniquely illustrate the policies underlying the no-liability rule. Laid bare, the facts indicate that a police officer's wife, Garnett Morgan, contacted a police captain, Tiernan, and reported that her husband, an officer who had carried his service revolver on and off duty^[6] for five years without incident, had assaulted her with the weapon the night before. In responding to this complaint arising not from a crime involving strangers on the street but from an apparent marital dispute between one of his officers and the officer's wife, Captain Tiernan had certain options. He could have immediately disarmed Officer Morgan on the basis of his wife's assertion. This measure, however, would realistically remove him from the force. Tiernan could have conducted a full-scale formal investigation, filed a report to his supervisors, or arranged for a hearing held before a board of police officials. Or Captain Tiernan could have considered the context of the offense and have done what Morgan's wife actually requested him to do, i.e., contact Morgan himself in order to keep him "away from [her]."

From any of these options Captain Tiernan had to decide how to proceed, and in so deciding, had to call upon his experience and training during his years on the force in dealing with complaints of misconduct in a police officer's personal life. In a word, Captain Tiernan had to exercise discretion, and the law, through the no-liability rule, protects and preserves his role in the decisionmaking process. The law leaves a police official free to decide how to proceed by affording him the knowledge that, unless he specifically undertakes responsibility to ensure the safety of a particular individual, his omissions, oversights, and errors in evaluating each circumstance will not be considered the cause of harm to citizens whom he has pursued a career to protect. Porter v. City of Urbana, supra, 88 Ill.App.3d at 445, 43 Ill.Dec. at 612, 410 N.E.2d at 612. Nor will a jury of lay persons be permitted, in hindsight, to second-guess what he should or should not have done. Shore v. Town of Stonington, supra, 187 Conn. at ___, 444 A.2d at 1384. The question is whether Captain Tiernan did affirmatively undertake the obligation of protecting Garnett Morgan, thereby creating a special relationship between her and the police. On this record, we hold that he did not.

Garnett Morgan specifically asked Captain Tiernan if he "would just make [her husband] stay away from me." She did not want the police to come to her house; nor did she want to file a complaint against her husband. She called "asking for [Tiernan's] assistance with my husband, and just to ask him to stay away from me." Captain Tiernan said that while he could not "put a man out of his own house," he would speak with her husband and call her back. Mrs. Morgan stated:

So he told me if I wanted to file a formal complaint against him, you know, that was something different but then, later, 1317 *1317 something else happened. He told me that it would be different with the formal complaint.... He said that was something different. I — when I called him, I was asking for his assistance with talking with my husband, and just to ask him to stay away from me.

Mrs. Morgan at no time lodged a written statement concerning her husband's conduct with the Maryland (where she lived) or District of Columbia authorities, notwithstanding Captain Tiernan's statements to her. Tiernan then contacted Morgan's immediate supervisor, Lieutenant Swank, and together they met with Morgan. Tiernan told Morgan that "if he couldn't get along with his wife ... he should leave." Tiernan then called Garnett Morgan and told her that he had "explained some things to" her husband and advised her that "maybe it would be best if [they] just separated." A few days later she rented an apartment, telephoned Tiernan asking assurance that her husband was at work while she left, and moved out. Three months later, the events culminating in the injuries to Garnett Morgan and the Pinkney family occurred.

Plainly, Garnett Morgan did not ask Captain Tiernan to protect her by disarming her husband, with the necessary result of effectively suspending him from the police force. Even if she had, this would not suffice to create a special relationship between her and the police. Hartzler v. City of San Jose, supra, 46 Cal.App.3d at 9-10, 120 Cal.Rptr. at 7; Doe v. Hendricks, supra, 92 N.M. at 502-503, 590 P.2d at 651; Riss v. City of New York, supra, 22 N.Y.2d at 579, 240 N.E.2d at 860, 293 N.Y.S.2d at 897. Rather, she rejected the idea that a police officer come to their home and refused to file a complaint. Instead, she asked Captain Tiernan simply to talk with her husband. Nor did Captain Tiernan promise to protect Garnett Morgan; and even if he had, failure to protect her would not support a finding of liability. Warren v. District of Columbia, supra, 444 A.2d at 2, 6; Henderson v. City of St. Petersburg, supra, 247 So.2d at 25. In short, these facts indicate just this: at the request of an officer's wife for "assistance" in facilitating some type of separation from her husband — by asking him to stay away from her — a police captain discussed the problem with the officer. Without further action affirmatively indicating an intent to deploy the police department to assure her safety, Captain Tiernan did not undertake, and was not requested, to guard Garnett Morgan from possible future harm. See Florence v. Goldberg, supra, 44 N.Y.2d at 196-97, 375 N.E.2d at 767, 404 N.Y.S.2d at 587; Silverman v. City of Fort Wayne, supra, 171 Ind.App. at 417, 357 N.E.2d at 286. As a result, Captain Tiernan had broad discretion to address these circumstances. He was free to consider that, according to Swank, Morgan and his wife had fought for a number of years without involvement of a gun, cf. Riss v. City of New York, 27 App.Div.2d 217, 278 N.Y.S.2d 110 (no liability where "complaints continued over a considerable period without active implementation by dangerous conduct"), aff'd, 22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897 (1967); he was also free to consider, again according to Swank, that Morgan's personnel file did not indicate a history of violent conduct. See supra note 1. In any event, without the police having assumed a duty to protect Garnett Morgan, Tiernan's actions are beyond reach in this litigation.

Nor do the police department's "general orders," which require an investigation, report and recommendation whenever an improper use of an officer's service revolver is reported, establish a duty to protect Garnett Morgan. Aside from whether Captain Tiernan did or did not substantially comply with them, the orders, according to his testimony,^[7] apply when any member of the public files such a report. Thus, the language of these directives indicates procedures for the protection not specifically of police officers' spouses, but of the public in general. As a result, no special relationship between the police and a 1318 *1318 particular class of which Garnett Morgan is a part was created. See Cracraft v. City of St. Louis Park, supra, 279 N.W.2d at 807; State v. Superior Court of Maricopa County, supra, 123 Ariz. at 332-33, 599 P.2d at 785-86; Stewart v. Schmieder, supra, 386 So.2d at 1358.

Finally, Garnett Morgan did not particularly rely upon Captain Tiernan to protect her. On the contrary, of her own accord she moved out of her home into an apartment, changing her telephone number and concealing her new address from her husband. When she called Tiernan prior to leaving, she did not ask him to detain her husband at the precinct, but sought only to know if he was there. Hence, there was not in any way, special reliance upon the police for protection. See Haehl v. Village of Port Chester, supra, 463 F.Supp. at 851; Florence v. Goldberg, supra, 44 N.Y.2d at 196-97, 375 N.E.2d at 767, 404 N.Y.S.2d at 587.

There is the added consideration that even if we were to hold that even though he complied with all her requests, Captain Tiernan had a greater duty to protect Garnett Morgan from her husband, Tiernan's actions were not, as a matter of law, the proximate cause of her injuries. A defendant may not be held liable for harm actually caused where the chain of events leading to the injury appears "highly extraordinary in retrospect." Lacy v. District of Columbia, 424 A.2d 317, 320-21 (D.C.1980). John Morgan was not merely a private employee carrying a dangerous instrumentality at the behest of his employer, but rather, an experienced and trained Metropolitan Police Department Officer who had carried his service revolver for five years without incident. During these years on the force, Morgan had no record of violent conduct. See supra note 1. Moreover, Morgan and his wife had been embroiled in marital disputes over the course of the previous two years without involvement of a shooting — even though Morgan carried or had immediate access to his gun at all times. See supra note 5. Finally, after the assault, Garnett Morgan no longer lived with her husband but moved into an apartment with her children, and for the three months following the incident, lived in peace. That Officer Morgan would, three months later, show up on her doorstep and subsequently shoot her while being taken into police custody — after not having done so during the previous two years of marital arguments nor having wrongfully fired his weapon during five years on the force — describes a chain of events that is, in retrospect, highly extraordinary. Id.

It is significant that the shootings occurred during his arrest. It was his arrest that triggered the shootings in this case. There is no serious issue on appeal, however, relating to negligence by the police in effecting the arrest of the husband.

The issue was not brought before the court by appellee in its opposition to appellants' response to the government's petition for rehearing en banc. In their original brief in this court, however, appellants presented a contention that the trial court erred in directing a verdict in favor of the government on the issue of negligence on the part of Lieutenant Bowles in directing two police officers from the scene prior to the shooting. The majority opinion of the hearing division expressly did not reach this issue (see Morgan v. District of Columbia, supra, 449 A.2d at 1113 n. 16). In directing a verdict for the defendants on this issue the trial court made these findings:

The Court finds that, at best, plaintiff has proven that Lieutenant Bowles responded to an emergency situation at the Pinkney home and exercised his judgment regarding the proper course of action to take. There has been introduced, no evidence as to how long Lieutenant Bowles had been stationed at the Seventh District, that whether or not he personally knew former Officer Morgan. There has been no evidence as to whether he would have had occasion in his position there to know or be familiar with any of the complaints in Officer Morgan's personnel 1319 *1319 file, or that he actually did have any knowledge with respect to his prior personal history.

Plaintiff has introduced no testimony, expert or otherwise, regarding the proper course of action that policemen should take in handling what might be termed domestic situations, such as occurred here.

Lieutenant Bowles' primary concern was for the safety of the parties involved, particularly the young children, as indicated by the evidence that possibly the District's [sic] return to the home was for safety of the young children.

There is no evidence that if he had taken different action, such as sending — not sending the two officers away, then these tragic events which followed would not have occurred.

The Court finds that the plaintiff has not established a prima facie case of negligence, proximately causing injury. Therefore, a verdict is directed for the District of Columbia on plaintiff's claim regarding the actions of Lieutenant Bowles.

We agree with the trial court's assessment and conclude there is no merit to appellants' contention, which, as we have stated, was raised earlier in their brief before the hearing division of this court.

IV

There being no general duty on the part of the Metropolitan Police Department to protect these plaintiffs and no special relationship between them, liability fails as a matter of law. The crucial circumstances in this case occurred not when Captain Tiernan spoke to Garnett Morgan or to her husband, but at the time of the tragic shootings which gave rise to the claim for damages upon which this case is founded. The police immediately responded to Garnett Morgan's request for assistance and a lieutenant and two officers arrived on the scene to apprehend her husband. Unfortunately, due to a ruse by her husband, he avoided apprehension by the Lieutenant until after the shootings occurred. For these reasons, the injuries to plaintiffs are not attributable to the District of Columbia.

Accordingly, the judgment on appeal is

Affirmed.

FERREN, Associate Judge, with whom NEWMAN, Chief Judge, MACK, Associate Judge, and KELLY, Associate Judge, Retired, join, dissenting:

The majority concludes that, absent "a `special relationship' ... between the police and a particular individual" that creates "a specific legal duty ... rendering the police liable for failure to act," ante at 1312, "the police may not be held liable for failure to protect a particular individual from harm caused by criminal conduct." Ante at 1315. Because the majority finds no such special relationship here, the court holds that appellants may not recover for the Metropolitan Police Department's negligent failure to prevent the murder of Elton Pinkney and the gunshot injuries to Garnett Morgan and her son, John Keith Morgan.

While this court has applied the quoted principle in ordinary cases of failure to respond to citizen complaints, see, e.g., Warren v. District of Columbia, 444 A.2d 1 (D.C.1981) (en banc), that principle, in my view, is not properly applicable to this case. The negligence complained of here was the police department's failure to exercise proper supervision over a member of the force, not failure to investigate or prevent crimes by civilians. As discussed in the division opinion, Morgan v. United States, 449 A.2d 1102, 1108 (D.C.1982), the legal duty at issue here is not a special duty, i.e., a duty dependent on a "special relationship." Rather, it

is properly characterized as a general duty, owed to the public at large, to use reasonable care in supervising and controlling police officers and their service revolvers. Marusa v. District of Columbia, 157 U.S.App.D.C. 348, 351, 484 F.2d 828, 831 (1973) ("government has a duty 1320 *1320 to minimize the risk of injury to members of the public that is presented by [its] policy [of requiring police officers to carry service revolvers at all times]"); Carter v. Carlson, 144 U.S.App.D.C. 388, 398, 447 F.2d 358, 368 (1971) ("District of Columbia as a corporate entity has a duty to supervise, train and control its police officers"), reversed in part, sub nom. District of Columbia v. Carter, 409 U.S. 418, [93 S.Ct. 602, 34 L.Ed.2d 613] (1973); see District of Columbia v. White, D.C.App., 442 A.2d 159 (1982) (referring to existence of cause of action against police department for negligent supervision of officers); District of Columbia v. Davis, D.C.App., 386 A.2d 1195, 1199-1201 (1978) (same). [Footnote omitted.]

The majority's "special relationship" or "special duty" analysis is therefore irrelevant. A jury applying the proper standard of reasonable care under the circumstances to Captain Tiernan's supervisory efforts could reasonably have found negligence. Id. at 1109.

The majority also concludes that Captain Tiernan's failure to follow established procedures after Garnett Morgan told him of appellant John Morgan's gun threat did not, as a matter of law, proximately cause the death and injuries. To the contrary, a jury reasonably could find that, far from being "highly extraordinary in retrospect," ante at 1318,^[1] "it was reasonably foreseeable under circumstances known to the Department that Morgan `might avail himself of the opportunity' to carry out his threat with the gun" if his superior officers did not take reasonable steps to assess and minimize that risk. Id. at 1113, quoting RESTATEMENT (SECOND) OF TORTS § 448 (citations omitted).

Respectfully, therefore, I dissent for the reasons more fully set forth in the vacated division opinion. Morgan, supra, 449 A.2d at 1102. The trial court erred in granting judgment notwithstanding the verdicts. I would reinstate the jury verdicts as to all appellants.

[*] Judgment was entered on September 30, 1983.

[**] Judge Kelly was an Associate Judge of the court at the time of en banc argument. Her status changed to Associate Judge, Retired, on March 31, 1983.

[1] Officer Morgan's employment history evinces numerous derelictions of duty, including leaving his post, lying twice to his superior officers, failing to answer a radio run and reporting late for roll call. In addition, prior to joining the police force he had been involved in an assault against a referee in a basketball game, but the prosecutor dismissed the case on a nolle prosequi.

[2] This court subsequently affirmed his convictions for first degree murder and two counts of assault with intent to kill while armed. Morgan v. United States, 363 A.2d 999 (D.C.1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2187, 53 L.Ed.2d 231 (1977).

[3] As stated, he conducted an inquiry by discussing the incident complained of by Morgan's wife with Officer Morgan and Lieutenant Swank, his superior, pursuant to her request, and then phoned her to report to her and offer his advice.

[4] The author of Police Liability, supra at 826, cites these two decisions for the proposition that law enforcement officers who promise to provide protection have a duty to carry out that promise. A fair reading of these cases, however, indicates that in each, the conduct, rather than the statements of the police, controlled the special relationship determination.

[5] In narrow circumstances, a special relationship may also be established by a course of conduct between the plaintiff and the municipality strongly indicating the need for police protection. See Warren v. District of Columbia, supra, 444 A.2d at 3; Cady v. State, 129 Ariz. 258, 263, 630 P.2d 554, 559 (Ariz.App. 1981); see generally Jones v. County of Herkimer, 51 Misc.2d 130, 272 N.Y.S.2d 925, 932 (1966); Baker v. City of New York, 25 A.D.2d 770, 269 N.Y.S.2d 515, 518 (1979). In Baker, for example, the police refused to enforce a protection order obtained by the plaintiff against her estranged husband, a former law enforcement officer who had been diagnosed by a court psychiatrist as destructive. A probation officer with the Domestic Relations Court also refused to protect the plaintiff when she arrived at his office shortly thereafter and asked to wait inside for her husband; forced to the waiting room, she was then shot by her husband upon his arrival. According to the New York court, "Plaintiff was thus singled out by judicial process as a person in need of special protection and peace officers had a duty to supply protection to her." Baker v. City of New York, supra, 25 A.D.2d at 772, 269 N.Y. S.2d at 518.

While Baker may indicate a proper application of the "course of conduct" exception to the no-liability rule, the open-ended nature of the phrase suggests that it be narrowly construed.

[6] Police regulations require an officer to carry his gun at all times.

[7] The only evidence of these orders was introduced through Captain Tiernan's testimony.

[1] In its discussion of proximate cause, the en banc court quotes from and confirms the correctness of the test for proximate cause set forth in the RESTATEMENT (SECOND) OF TORTS § 435 and applied by the division majority. See ante at 1318; Morgan, supra, 449 A.2d at 1110-11; Lacy v. District of Columbia, 424 A.2d 317, 319-21 (D.C.1980).

4.2.2.3 Control of Others and Third Parties 4.2.2.3 Control of Others and Third Parties

4.2.2.3.1 Cuppy v. Bunch ("The Boozy Fishing Trip Case") 4.2.2.3.1 Cuppy v. Bunch ("The Boozy Fishing Trip Case")

South Dakota Supreme Court

88 S.D. 22, 214 N.W.2d 786

No. 11192

1974-02-15

CUPPY, et al., Respondents v. BUNCH, Respondent and WHITE, Appellant

(214 N.W.2d 786)

(File No. 11192.

Opinion filed February 15, 1974)

*23Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for plaintiffs and respondents.

Whiting, Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for defendant and respondent.

Costello, Porter, Hill, Banks & Nelson, Rapid City, Francis J. Parker, Deadwood, for defendant and appellant.

DOYLE, Justice.

This is an appeal from judgments entered in favor of the plaintiffs on the consolidated trial of six damage claims arising out of a two-car collision.

On July 4, 1970, the defendants, Bunch and White, who were friends and next-door neighbors, met in a bar in Lead, South Dakota. While there they decided to meet later in Belle Fourche to go fishing at a stock pond nearby. Bunch left and drove to Belle Fourche. White followed shortly thereafter. The two met again at a Belle Fourche cafe at approximately 1:00 p.m. Bunch then drove them to the fishing pond. Bunch fished for only a short while. He was “hung over” from his previous night’s activities and the heat of the day complicated his *24condition. On the trip out and throughout the afternoon, the two imbibed from a gallon thermos jug containing ice, lemonade and a fifth of vodka prepared by White. They left the pond late in the afternoon and upon Bunch’s request, White drove back to Belle Fourche while Bunch slept. Arriving at Belle Fourche, White unloaded his gear from Bunch’s vehicle into his own. He awakened Bunch with some difficulty. When questioned by White in regard to his condition, Bunch replied to the effect that although he did not feel all right, he did not wish to leave his vehicle in Belle Fourche. White then stated to Bunch, “follow me” or “just stay behind me”. White and Bunch then left Belle Fourche, each in his own vehicle, with White in front. At St. Onge, White stopped to check on his friend who, according to White, seemed all right and they continued on. Prior to the collision, the two vehicles came up behind another vehicle. The driver of this vehicle and his wife both testified that the Bunch vehicle would occasionally swerve from the shoulder of the road back out into the opposite lane of travel. This observation caused so much concern that the driver turned off the highway and permitted both vehicles to proceed ahead of him. The collision occurred shortly thereafter. The record indicates that Bunch drove his vehicle across the center line into the path of the plaintiff’s vehicle. The collision occurred in such a manner that the plaintiffs had no opportunity to take any action to avoid it.

In suits brought against both Bunch and White, Bunch virtually conceded liability and the jury returned a judgment against him from which he does not appeal. In the suits against White, the jury also returned a judgment in favor of the plaintiffs and White appeals.

The plaintiffs for their cause of action against White alleged that he:

“* * * did negligently and carelessly operate a motor vehicle for the purpose of leading or guiding a motor vehicle operated by defendant Brian D. Bunch on said public highway, when defendant Marlin G. White knew, or reasonably should have known, that defendant Brian D. Bunch was under the influence of intoxicating liquor and unable to operate the motor vehicle in a reasonably careful and prudent manner.”

*25In order for there to be actionable negligence there must be a duty on the part of the defendant to protect the plaintiff from injury, a failure to perform that duty, and an injury to the plaintiff resulting from such failure. Ecklund v. Barrick, 1966, 82 S.D. 280, 144 N.W.2d 605; Stoner v. Eggers, 1958, 77 S.D. 395, 92 N.W.2d 528; Daniels v. Moser, 1955, 76 S.D. 47, 71 N.W.2d 739.

It is the appellant’s contention that he owed no duty to the respondents. According to Restatement, Second, Torts § 315:

“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.”

The special relations referred to in clause (a) are found in §§ 316-319, none of which is applicable herein. Sections 314a and 320 state the relations relevant to clause (b) which we also find equally inapplicable.

The language in Comment b. of § 315 is appropriate:

“In the absence of either one of the kinds of special relations described in this Section, the. actor is not subject to liability if he fails, either intentionally or through inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm. This is true although the actor realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself. Thus if the actor is riding in a third person’s car merely as a guest, he is not subject to liability to another run over by the car even though he knows of the other’s *26danger and knows that the driver is not aware of it, and knows that by a mere word, recalling the driver’s attention to the road, he would give the driver an opportunity to stop the car before the other is run over.”

The facts do not, in our opinion, indicate that White did exercise or ever was capable of exercising any control over Bunch at any time relevant to this case. Nor do the facts show that White undertook to assist Bunch which, therefore, makes § 324A of Restatement, Second, Torts, inapplicable.

The respondents’ argument that Steckman v. Silver Moon, Inc., 1958, 77 S.D. 206, 90 N.W.2d 170, is apropos is untenable. In Steckman v. Silver Moon, supra, this court held that the law imposes upon one who undertakes to render assistance the duty of reasonable care toward the one assisted. This rule does not contemplate any duty toward third persons nor do we choose to extend it to do so.

The respondents also argue that what is commonly referred to as the “signal-to-pass” cases, e. g., Thelen v. Spilman, 1957, 251 Minn. 89, 86 N.W.2d 700, are supportive of the judgment in their favor. We find those cases factually inapposite to the one before us.

As a general rule the existence of a duty, i. e., whether a relation exists between the parties such that the law will impose upon the defendant a legal obligation or reasonable conduct for the benefit of the plaintiff, is to be determined by the court. Proesser on Torts, § 36, 3rd Ed., pp. 206, 207; 57 Am.Jur.2d, Negligence, § 34.

In our view, the evidence taken in the light most favorable to the respondents is not supportive of their alleged action against White in that it fails to disclose the existence of any duty owed to the respondents on behalf of White. Therefore, the trial court erred in not directing a verdict for White.

Reversed.

WOLLMAN and DUNN, JJ., concur.

BIEGELMEIER, C. J., concurs in result.

WINANS, J., dissents.

4.2.2.4 No Duty Rules 4.2.2.4 No Duty Rules

4.2.2.4.1 No Duty on Foreseeability Grounds 4.2.2.4.1 No Duty on Foreseeability Grounds

4.2.2.4.1.1 Noebel v. Housing Authority ("The Wire Case") 4.2.2.4.1.1 Noebel v. Housing Authority ("The Wire Case")

Connecticut Supreme Court

146 Conn. 197

1959-02-17

Jane Noebel v. The Housing Authority of the City of New Haven et al.

Daly, C. J., Baldwin, King, Murphy and Shea, Js.

*198Argued January 6

decided February 17, 1959

Kevin T. Gormley, with whom, on the brief, was Martin E. Gormley, for the appellants (defendants).

Jerrold H. Barnett, with whom was Bernard P. Kopkind, for the appellee (plaintiff).

Baldwin, J.

The defendants have appealed from a judgment for the plaintiff entered upon a jury’s verdict. They assign error in the denial of their motions to set aside the verdict and for judgment notwithstanding the verdict, in the charge and in rulings on evidence.

The jury could have found the following facts from the evidence, viewed in the light most favorable to the plaintiff. The defendant housing authority maintained a housing development in which the plaintiff was a tenant. The defendant Carl W. An*199dersen was the acting manager of the development, which consisted of a number of buildings, each containing apartments placed side by side throughout its length. Two of the buildings which were parallel to one another faced in opposite directions, and the rear entrances to the apartments in each opened upon a common area between the buildings. This area was under the control of the housing authority. From a common center walk, walks extended to the rear entrances of the apartments. The authority permitted the tenants, if they desired to do so, to inclose with a fence the portion of the area adjacent to their respective apartments so that each might have a rear yard. The authority provided specifications for the construction of permanent fences and also permitted tenants to inclose their areas with temporary fencing. The plaintiff lived with her family in an apartment at the end of one of the buildings. Another tenant, Donald Perry, occupied the end apartment directly opposite in the other building. Perry had driven wooden stakes in the ground along each side of the walk from his rear entrance to the center walk, and along the side of the center walk nearest to his apartment for some distance beyond the end of the building. He had strung a wire covered with white rubber along the tops of these stakes to inclose the area in the rear of his apartment and had planted it with grass seed.

On November 16,1953, about 4:30 in the afternoon, the plaintiff was having coffee with a neighbor in the apartment next to hers when a child came in, very excited, and told the plaintiff that some older boys were “beating up” her son in the woods. The woods referred to were in front of the building in which Perry’s apartment was located. The plaintiff, greatly agitated, ran from the rear entrance of her *200neighbor’s apartment across to the walk leading to the rear entrance of the Perry apartment and up that walk in order to pass around the end of the building. When part way up, she attempted to jump over Perry’s fence, caught her foot in the wire, and fell, injuring herself. Perry had erected the fence more than a year before, and the plaintiff knew that it was there. Although it was dusk, she nevertheless could and did see it. In her haste, however, to come to her son’s help, she tried to jump over it. Andersen had seen the fence several times before the plaintiff was injured, but he had done nothing to have it removed.

The complaint was in two counts. The first count purported to allege a cause of action for negligence, and the second, for the maintenance of a nuisance. In the first count, the plaintiff charged in substance that the defendants were negligent in that they had constructed and maintained, or knowingly had permitted to be constructed and maintained, a wire rope barrier along a common passageway on the housing authority premises, a barrier which the defendants knew or should have known was dangerous to the plaintiff and other tenants, and that it caused the plaintiff’s fall. It is, of course, the duty of a landlord to use reasonable care to keep in a reasonably safe condition the parts of the premises over which he reserves control. Torre v. DeRenzo, 143 Conn. 302, 305, 122 A.2d 25; Tenney v. Pleasant Realty Corporation, 136 Conn. 325, 329, 70 A.2d 138. The burden was on the plaintiff to prove a breach of this duty by the defendants in order to establish a basis for her recovery. The ultimate test of the duty is to be found in the reasonable foreseeability of harm resulting from a failure to exercise reasonable care to keep the premises reasonably safe. Hassett v. *201 Palmer, 126 Conn. 468, 473, 12 A.2d 646; Botticelli v. Winters, 125 Conn. 537, 542, 7 A.2d 443. This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur. The test is: Would the ordinarily prudent man in the position of the defendants, knowing what they knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402; Figlar v. Gordon, 133 Conn. 577, 580, 53 A.2d 645; 2 Harper & James, Torts, § 18.2. This test has been applied by this court to a variety of factual situations. Wolfe v. Rehbein, 123 Conn. 110, 114, 193 A. 608; Botticelli v. Winters, supra; Hassett v. Palmer, supra; Przwgocki v. Wikris, 130 Conn. 419, 422, 34 A.2d 879; Balaas v. Hartford, 126 Conn. 510, 514, 12 A.2d 765; Goldberger v. David Roberts Corporation, 139 Conn. 629, 632, 96 A.2d 309; Borsoi v. Sparico, 141 Conn. 366, 369, 106 A.2d 170.

The plaintiff was well aware of the wire barrier. She had observed it many times. Though it was getting dark, she saw the barrier before she attempted to jump over it. Nevertheless, she ran down the walk from her neighbor’s apartment and up the walk leading to Perry’s apartment, knowing that after doing so she would have to cross the barrier if she was to take the short cut around the end of the building. Instead of stepping over the barrier, she, in her haste, attempted to jump. This is not a case of the plaintiff’s tripping over the barrier in the dark or otherwise falling over it in an attempt to cross the area which the barrier inclosed. Her act was deliberate. She misjudged the height of the barrier and her own ability to clear it. It is unreasonable as a matter of law to charge the defendants with antic*202ipation of the likelihood that if the barrier remained, someone in a hurry might try to jump over it, misjudge its height or his own agility, and fall. The crux of the matter is illustrated by a comparison of the cases of Botticelli v. Winters, supra, and Wolfe v. Rehbein, supra. In the Botticelli case, we reversed a judgment for the plaintiff. We pointed out (p. 541) that the defendant in Wolfe v. Rehbein knew that the plaintiff’s decedent came on his property every day in the immediate vicinity of the pile of lumber which caused her death and that he should have realized that the lumber, in the condition in which it had been left, involved an unreasonable risk of serious bodily harm to children who could not be expected to discover or appreciate the danger. We held, in the Botticelli case, that a landlord would not be liable on mere proof that, though he knew children played about an open yard on his premises, he maintained an incinerator there and a child was burned owing to an intermeddler who without right set fire to the refuse in the incinerator. We said (p. 542): “In such a condition it would be difficult to see how the landowner could be charged with that reasonable anticipation of harm which lies at the root of liability in negligence in such a situation.” See Botticelli v. Winters, 128 Conn. 210, 212, 21 A.2d 381. Due care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable. See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 345, 162 N.E. 99; Marengo v. Roy, 318 Mass. 719, 722, 63 N.E.2d 893.

The second count incorporates the allegations of negligence contained in the first count and alleges, in an additional paragraph, that they constituted a nuisance. This count adds nothing to the complaint. If the fence erected by Perry constituted a nuisance, *203it was a nuisance which arose out of the alleged negligence of the defendants in allowing Perry to erect and maintain it. The same considerations affecting negligence apply to a nuisance arising out of negligence. See Przwgocki v. Wikris, 130 Conn. 419, 422, 34 A.2d 879; Balaas v. Hartford, 126 Conn. 510, 514, 12 A.2d 765; 1 Harper & James, Torts, p. 65. For example, contributory negligence is a defense to an action based upon a nuisance arising from negligence. Carabetta v. Meriden, 145 Conn. 338, 340, 142 A.2d 727. Furthermore, an essential element of a nuisance is a natural tendency of the act or thing complained of to create danger and inflict injury upon person or property. Hoffman v. Bristol, 113 Conn. 386, 389, 155 A. 499; Carabetta v. Meriden, supra, 339. It can hardly he said that a fence constitutes a nuisance to one who attempts to jump over it and in so doing misjudges its height and his own ability to clear it.

The view which we have taken makes it unnecessary to consider the other claims of error.

There is error, the judgment is set aside and the ease is remanded with direction to grant the defendants’ motion for judgment notwithstanding the verdict.

In this opinion the other judges concurred.

4.2.2.4.1.2 Ruiz v. Victory Properties, LLC ("The Bombs-Away Case") 4.2.2.4.1.2 Ruiz v. Victory Properties, LLC ("The Bombs-Away Case")

The Connecticut Supreme Court ultimately heard this case. Do you think it sided with the dissent or the majority?

43 A.3d 186 (2012)135 Conn.App. 119

Adriana RUIZ et al.
v.
VICTORY PROPERTIES, LLC.

No. 32852.

Appellate Court of Connecticut.

Argued December 1, 2011.Decided May 1, 2012.

188 *188 Michael T. Petela, with whom, on the brief, was Angelo Cicchiello, Hartford, for the appellant (plaintiffs).

Frederick M. Vollono for the appellee (named defendant).

189 *189 ROBINSON, ALVORD and BORDEN, Js.

BORDEN, J.

The plaintiffs, Adriana Ruiz and Olga Rivera,^[1] appeal from the grant of summary judgment in favor of the defendant Victory Properties, LLC.^[2] On appeal, the plaintiffs claim that the trial court improperly concluded that, under the undisputed facts of the case, the defendant owed them no duty. We agree with the plaintiffs and, accordingly, reverse the judgment of the trial court.

The plaintiffs brought this complaint in negligence, and moved for a prejudgment remedy, which the court, after an evidentiary hearing, granted in part. Thereafter, the defendant moved for summary judgment, which the court granted. This appeal followed.

The record discloses the following undisputed facts, as stated by the trial court in its memorandum of decision on the motion for summary judgment.^[3] "On the date of this incident, May 14, 2008, the defendant... was the owner and landlord of a six-family apartment building located at 138 North Street, New Britain, Connecticut. Saribel Cruz resided in a third floor apartment with her son Luis who was ten years old. Ms. Cruz is the aunt of Adriana Ruiz, who was seven years old. Adriana resided in another apartment with her mother, Olga Rivera. Some buckets, trash, rocks, and broken concrete pieces were located in the backyard of the building. Prior to the incident on May 14, 2008, one tenant had complained to the landlord about the conditions of the backyard.

"On the date of the incident, a number of the children were playing in the backyard, watched by a number of adults. It was common for children who lived in the building, often joined by other neighborhood children, to play in the backyard, where they would sometimes ride or park their bikes, and where they would sometimes use a basketball hoop that had been set up. On this pleasant May day, Luis Cruz decided to see if he could split a rock by throwing it to the ground. He took a large rock from the backyard up to his family's third floor apartment and threw it from the window or [the] balcony to the ground. He saw his cousin Adriana below and yelled to her to get out of the way, but the rock hit her in the head, and she was badly injured."

The court also noted the following in a footnote regarding the object that hit Ruiz: "Olga Rivera has submitted an affidavit in opposition to summary judgment in which she states, `upon information and belief... Luis Cruz, a minor child, picked up a loose piece of concrete or cinder block' and 190 *190 dropped it from the balcony, hitting Adriana. For purposes of summary judgment, an affiant is not permitted to offer evidence upon information or belief, but rather must offer evidence as would be admissible at trial. The transcripts of witnesses at the prejudgment remedy hearing all describe the object thrown by Luis as a `rock.' From the photographs attached as exhibits to the plaintiff's opposition papers, and from the description of the photographs by Saribel Cruz, it appears that the families in the building may have used the term `rock' to describe either an actual rock or any large heavy piece of concrete. For consistency, the court will use the term `rock,' as have the witnesses in the exhibits."

At the outset, we note our standard of review. "Summary judgment is appropriate when the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Thus, because the court's decision on a motion for summary judgment is a legal determination, our review on appeal is plenary...." (Internal quotation marks omitted.) Heussner v. Day, Berry & Howard, LLP, 94 Conn.App. 569, 572-73, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006).

I

The plaintiffs contend that the court improperly granted the defendant's motion for summary judgment on the ground that the defendant owed no duty to the plaintiffs.^[4] We agree.

"The existence of a duty of care is a prerequisite to a finding of negligence." Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand." (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). "If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85, 650 A.2d 153 (1994).

Our Supreme Court has stated that "the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998).

"In negligence cases [such as the present one] in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis 191 *191 of the extent of the tortfeasor's duty [owed] to the plaintiff." Malloy v. Colchester, 85 Conn.App. 627, 633-34, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004). "The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.... Essential to determining whether a legal duty exists is the fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong.... Even where harm was foreseeable, [our Supreme Court] has found no duty when the nexus between a defendant's negligence and the particular consequences to the plaintiff was too attenuated." (Internal quotation marks omitted.) Id., at 634, 858 A.2d 813. Put another way, "[i]t is a well established tenet of our tort jurisprudence that [d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable." (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. at 575, 717 A.2d 215.

Ordinarily in tort law, whether a defendant's conduct is tortious is determined by the jury; the jury decides whether the defendant acted reasonably, which ordinarily includes, either explicitly or implicitly, whether the defendant should have reasonably foreseen the adverse consequences of its conduct. DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 620-21, 2 A.3d 963, cert. granted, 299 Conn. 920, 10 A.3d 1053 (2010). When, however, a court determines that no tort duty exists because the consequences of the alleged tortfeasor's conduct were too remote to be reasonably foreseeable, what the court is doing is concluding, as a matter of law, that no reasonable juror could find that the defendant should have foreseen the adverse consequences of its conduct. Thus, the question of foreseeability is, in the first instance, a jury question on the issue of negligence, and only becomes a legal question for the court when the defendant claims that the consequences of its conduct were not reasonably foreseeable and, therefore, it owed no duty of care to the plaintiffs.

The plaintiffs argue that the court improperly framed the issue as it did, claiming that the question of duty is based on the foreseeability of the general nature of the harm and not the exact manner in which the harm occurred. In response, the defendant argues that it owed no duty to the plaintiffs, as a matter of law, because this accident was caused by another child, and was simply unforeseeable. We agree with the plaintiffs.

The court, in its memorandum of decision, as the plaintiffs argue, based its conclusion of no duty on the contention that the harm suffered by Ruiz was not foreseeable. In order to establish the element of duty, however, the focus of the inquiry is not on the specific manner in which the harm occurred but instead on whether the general nature of the harm which Ruiz suffered was foreseeable. "[S]o long as harm of the general nature as that which occurred is foreseeable there is a basis for liability even though the manner in which the accident happens is unusual, bizarre...." (Internal quotation marks omitted.) Pisel v. Stamford Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980). Therefore, whether a landlord, in the defendant's position, should have been able to foresee the exact manner in which ten year old Luis Cruz would play with the large rock, and ultimately injure Ruiz, is not the proper inquiry.

In this instance, the inquiry regarding foreseeability should depend on 192 *192 whether a reasonable landlord, knowing that dangerous debris is present in a common area where children are known to play, would be able to foresee that a child was likely to suffer harm of the general nature that Ruiz suffered here as a result of children playing in that very area. The proper application of the doctrine that the court must focus on the general nature of the harm suffered, and not the specific manner in which the harm occurred, depends in part on the level of generality with which the nature of the harm is defined. In other words, the more specifically the harm is defined the more it becomes the specific manner in which the harm occurred. For example, in the present case, one could define the harm along the following spectrum of generality: getting hurt by a large rock; getting hurt by a large rock thrown by another child; getting hurt by a large rock thrown by another child from the third floor of the apartment building.

Although a jury might find it not foreseeable that a ten year old child would carry a large rock up to a third floor balcony, throw it off, and hit someone below, defining the harm of the general nature in that way as a matter of law would be too specific; it would transform the general nature of the harm into the specific way in which the harm occurred. Instead, we conclude that the appropriate level of generality in the present case is getting hurt by a large rock thrown by another child, and that was certainly foreseeable. Put another way, we think that this case is close enough to the margin of reasonable foreseeability that it would be inappropriate to foreclose the foreseeability inquiry as a matter of law.

The defendant argues, however, that to find a duty under the facts of this case would drastically change the dynamic of the relationship between landlord and tenant, as it would make a landlord strictly liable for the actions of the children of their tenants while they are playing in common areas of the property. The defendant further argues that our jurisprudence is typically against extending a duty in situations where a defendant has no control over the person causing the injury, and that here Ruiz' injuries were due to the intentional act of Luis Cruz, a person over whom the defendant had no control. In support of that argument the defendant relies heavily on case law that discusses situations where a landlord does not owe its tenants a duty to protect them from injuries caused by the intentional or criminal acts of a third party.^[5] The defendant's arguments, however, are unpersuasive and mischaracterize the plaintiffs' claim.

Under the facts of this case, and in particular in light of the fact that Luis Cruz yelled out a warning before he let the rock drop, it is clear that he did not intentionally harm Ruiz. Furthermore, the plaintiffs have not alleged, and are not claiming, that the defendant failed to protect them from the intentional acts of Luis 193 *193 Cruz. They are claiming that the defendant neglected its property and left it in a dangerous condition that caused a foreseeable injury to Ruiz.

The defendant permitted the backyard of its apartment building to remain littered with dangerous debris knowing that that very location was used as a play area for children who resided in the building. The defendant can be charged with notice of the dangerous nature of the area, because the summary judgment court found it to be undisputed that one tenant had complained to the defendant about the conditions of the backyard. Nonetheless the yard contained, as the summary judgment court found to be undisputed, "[s]ome buckets, trash, rocks, and broken concrete pieces...." A jury could find it foreseeable that one child would pick up a piece of the debris and throw it, thus injuring another child.

In determining whether a duty of care exists, the second consideration is whether there are reasons of public policy to extend such a duty to the defendant under the circumstances. "[I]n considering whether public policy suggests the imposition of a duty, we ... consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179 (2005). "[A] totality of the circumstances rule ... is most consistent with the public policy goals of our legal system, as well as the general tenor of our tort jurisprudence." Id., at 121, 869 A.2d 179. We apply these four factors and conclude that imposing a duty of care on the defendant under the circumstances of the present case is not inconsistent with public policy.

Under the first factor, the court looks to the normal expectations of the parties in the activity under review. The activity under review here is the use of a common area of an apartment building by tenants and their children. The plaintiffs argue that the defendant failed to conform to the reasonable expectations of the tenants, in that the common areas of an apartment building should be adequately maintained so that they are safe for tenants and their families. The plaintiffs further posit that there is a strong public policy that landlords need to be held accountable when they ignore the responsibility of maintaining a safe environment. It is not unreasonable for a tenant to expect a landlord to maintain the common areas of its properties and keep them free of dangerous debris, especially when a landlord has knowledge that children often play in the area in question. Additionally, it is unreasonable for a landlord to expect that it can continue to conduct its business, while ignoring its obligation to maintain common areas and address tenant safety concerns.

The second factor, encouraging participation in the activity, also favors imposing a duty. "[This] factor requires [consideration of] the benefits, if any, of encouraging the underlying activity...." Seguro v. Cummiskey, 82 Conn.App. 186, 196, 844 A.2d 224 (2004). As a matter of public policy, it is desirable to promote the maintenance of common areas in properties such as the apartment building in this case, so that children can socialize and play in safe environments. A finding against the imposition of a duty would discourage parents from allowing their children to play and utilize the common areas of apartment buildings. It would also require tenants in such dwellings to exercise a 194 *194 much higher degree of vigilance in monitoring their children's activities in order to prevent exposure to potentially dangerous materials. There is certainly a strong public policy in favor of facilitating and encouraging children to play and socialize without forcing an overly heightened degree of vigilance upon parents.

The third factor, which is the likelihood that imposing such a duty would lead to increased litigation, is an admittedly weaker factor; it does not, however, compel the conclusion that imposing a duty of care on the defendant is inconsistent with public policy. Extending liability to those landlords or property owners who fail to use reasonable care to maintain a safe environment in common areas in order to protect their tenants from foreseeable harm, will not unnecessarily increase litigation but, rather, will provide an incentive to landlords and property owners to act responsibly toward their tenants.

Finally, the fourth factor, concerning the decisions of other jurisdictions, is not particularly helpful because there are multiple ways in which our sister states handle the question of duty with respect to premises liability. As there is no compelling reason grounded in public policy to shield the defendant from its duty, we therefore conclude that the defendant owed the plaintiffs a reasonable duty of care.

The dissent concludes, to the contrary, that "the defendant cannot be held liable to the plaintiffs for the harm caused by an eighteen pound concrete cinder block being dropped from a third story balcony onto the head of Ruiz." We disagree.

First, it is not undisputed that the rock that hit Ruiz weighed eighteen pounds, or that it was even a concrete cinder block. As we indicated, although there was some testimony to that effect before the prejudgment remedy court, the summary judgment court did not determine that factual assertion to be undisputed, and in fact simply referred to the item as a large rock. Second, even if it were ultimately determined to have weighed eighteen pounds, we think that the weight of the rock and the place from which it was thrown are precisely the types of foreseeability inquiries that are more appropriately left to the jury, rather than to the court as a matter of law.

II

In addition, to the extent that the court relied on the doctrine of superseding cause to reach its decision, the plaintiffs argue that the court improperly applied that doctrine. We agree.

In Barry v. Quality Steel Products, Inc., 263 Conn. 424, 436-39, 820 A.2d 258 (2003), our Supreme Court stated: "[T]he doctrine of superseding cause no longer serves a useful purpose in our jurisprudence when a defendant claims that a subsequent negligent act by a third party cuts off its own liability for the plaintiff's injuries. We conclude that under those circumstances, superseding cause instructions serve to complicate what is fundamentally a proximate cause analysis. Specifically, we conclude that, because our statutes allow for apportionment among negligent defendants; see General Statutes § 52-572h; and because Connecticut is a comparative negligence jurisdiction; General Statutes § 52-572o; the simpler and less confusing approach to cases, such as the present one, where the jury must determine which, among many, causes contributed to the plaintiffs' injury, is to couch the analysis in proximate cause rather than allowing the defendants to raise a defense of superseding cause." The court then explained that its holding is limited to cases in which a defendant claims that its tortious conduct is superseded 195 *195 by a subsequent negligent act or there are multiple acts of negligence, and that its holding does not necessarily affect those cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct. Id., at 439 n. 16, 820 A.2d 258.

The defendant argues that, even if it did owe a duty to the plaintiffs, Luis Cruz was an "unforeseeable" intentional tortfeasor and that, therefore, the young boy's actions cut off any potential liability of the defendant. It is clear from the undisputed facts, however, that the actions of Luis Cruz were neither intentional nor criminal and thus, according to Barry, application of the superseding cause doctrine would not be appropriate. At the same time, our Supreme Court in Barry, did not decide that intervening events would no longer play a role in assessing liability for negligent conduct. Instead, it held that analysis of causation issues relating to such events should be governed by the general law of proximate cause rather than by the assignment of a dispositive role to any one of the causes contributing to a plaintiff's injury. Barry v. Quality Steel Products, Inc., supra, 263 Conn. at 446, 820 A.2d 258. One reason underlying the court's decision was its recognition of the dominant role that comparative negligence has come to play in our assignment of responsibility for personal injury. Id., at 442-46, 820 A.2d 258. Here, however, the court determined that Luis Cruz' actions were "the most proximate cause" and, therefore, assigned his role in this unfortunate event as the dispositive cause, disregarding any potential contributory roles of other causes such as the defendant's failure to maintain a safe common area. It was improper for the court to foreclose the plaintiffs from recovery merely because another party may have subsequently contributed to Ruiz' injury. The inquiry by a court in such a circumstance should be whether the allegedly negligent conduct of any actor was a proximate cause and then each actor would pay his or her proportionate share, regardless of whether another's conduct also contributed to the plaintiff's injury.

"Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions.... The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct.... In negligence cases... in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the plaintiff." (Internal quotation marks omitted.) Malloy v. Colchester, supra, 85 Conn.App. at 633-34, 858 A.2d 813. Therefore, since we have already determined the question of whether a duty was owed by the defendant, it would be repetitive for us to engage in an analysis concerning proximate cause.

The judgment is reversed and the case is remanded with direction to deny the defendant's motion for summary judgment, and for further proceedings according to law.

In this opinion ROBINSON, J. concurred.

ALVORD, J., dissenting.

The case at bar is a very tragic case involving a young child who suffered serious injuries from an eighteen pound cinder block that had been dropped on her head by a ten year old playmate from the 196 *196 third floor balcony of the landlord's six unit apartment building. While I in no way condone the failure of the landlord to remove the cinder blocks and other debris from the yard of its rental property, I cannot agree with the majority that the child's injuries were a reasonably foreseeable consequence of the landlord's conduct. Accordingly, I respectfully dissent.

This is an appeal from a summary judgment rendered against the plaintiffs, Adriana Ruiz and Olga Rivera,^[1] in favor of the defendant, Victory Properties, LLC, in an action for negligence. The trial court concluded that there were no genuine issues of material fact as to whether the defendant owed a duty to the plaintiffs under the circumstances of this case. In reaching this determination, the court was required to consider the facts in the light most favorable to the plaintiffs, the nonmoving parties. Interface Flooring Systems, Inc. v. Aetna Casualty & Surety Co., 261 Conn. 601, 605, 804 A.2d 201 (2002).

In their complaint, the plaintiffs alleged that the defendant landlord owned an apartment building in New Britain (property), that the plaintiffs were lawful tenants of the property and that the defendant failed to remove "debris and loose concrete and cinder blocks" from the property. The complaint further alleged that another tenant of the property, a minor, "picked up a loose piece of concrete/cinder block from a large pile of other broken pieces of cement and cinder blocks loosely located in the backyard of the subject [p]roperty, carried said piece of concrete to the third floor apartment of said subject [p]roperty, walked out onto the back porch and dropped said large piece of concrete/cinder block from the third floor balcony onto the head of [Ruiz], who was standing in the immediate vicinity of the exterior back wooden porch of said property."

Following a hearing on the plaintiffs' application for a prejudgment remedy, they submitted a brief summarizing the testimony and evidence presented at that hearing. The plaintiffs, after repeating the allegations in their complaint, proceeded to describe the object dropped from the balcony as either a "concrete block" or a "cement block" several times throughout the brief. In its memorandum of decision on the application for a prejudgment remedy, the court, Vacchelli, J., stated the facts of the case: "In that accident, [Ruiz], then age seven, was struck on the head by an eighteen pound concrete block dropped by another child playing on a third floor balcony above her."

On appeal before this court, the plaintiffs consistently have represented that Ruiz was hit by a large piece of concrete or a cinder block. In their appellate brief, the plaintiffs stated that the ten year old playmate "picked up an eighteen pound piece of concrete/cinder block from a large pile of other loose broken pieces of concrete/cinder blocks located in the backyard of the [s]ubject [p]remises." Thrice more in their brief they refer to the "eighteen pound cinder block" or "eighteen pound brick" as being the object that struck Ruiz. Reviewing the facts in the light most favorable to the plaintiffs, and there being no argument to the contrary, I refer to the object dropped on Ruiz' head as an eighteen pound cinder block.

With these facts in mind, it is necessary to review our case law to determine whether the defendant can be held legally accountable for Ruiz' injuries. The majority opinion first sets forth the applicable principles for determining whether the defendant 197 *197 owed a legal duty^[2] to Ruiz and then focuses on the foreseeability of the harm that she suffered. It frames the inquiry as "whether a reasonable landlord, knowing that dangerous debris is present in a common area where children are known to play, would be able to foresee that a child was likely to suffer harm of the general nature that [Ruiz] suffered here as a result of children playing in that very area" and concludes that "the appropriate level of generality in the present case is getting hurt by a large rock thrown by another child, and that was certainly foreseeable." I disagree and conclude that simply getting hurt by the cinder block is too general a standard to be used for the test of foreseeability.

By employing a foreseeability test that incorporates such a high level of generality to the harm in this case, the majority essentially has created a strict liability standard.^[3] The term "general harm" logically cannot be extended to incorporate any injury that occurs by a piece of debris left in the landlord's common area.^[4] "It is impractical, if not impossible, to separate the question of duty from an analysis of the cause of the harm when the duty is asserted against one who is not the direct cause of the harm. In defining the limits of duty, we have recognized that [w]hat is relevant ... is the ... attenuation between [the defendant's] conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand.... It is a well established tenet of our tort jurisprudence that [d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable." (Citation omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 574-75, 717 A.2d 215 (1998).

Here, the alleged negligent conduct of the defendant was its failure to remove "debris and loose concrete and cinder blocks" from its property, thereby creating "a dangerous and unsafe condition." The complaint also alleged that the defendant knew or should have known that children assembled and played games on that property. The plaintiffs' basic claim, as I see 198 *198 it, is that Ruiz would not have been injured if the defendant had removed the debris from its property because then there would have been no cinder block for a child to carry up the stairs and to drop from the third floor balcony.^[5]

Applying the standards previously discussed, I would frame the relevant duty inquiry as whether the defendant would reasonably foresee that a ten year old child would pick up an eighteen pound cinder block, carry it up several flights of stairs to the third floor of the apartment building and drop it on the head of the seven year old Ruiz.^[6] This incident happened even though there were adults present to supervise the children and the ten year old playmate saw his younger friend standing in the area below the balcony when he dropped the cinder block into the backyard. I conclude that the harm suffered is too attenuated from the alleged negligent conduct of the defendant. It certainly was foreseeable that a child might trip and fall over the debris or even throw a piece of concrete at another child. In this case, the ten year old, if he had thrown the eighteen pound cinder block at Ruiz in the backyard, could not have caused the type of harm that she suffered by having it dropped three stories onto her head. I cannot agree that the defendant would reasonably foresee that its conduct in leaving cinder blocks and other debris in the backyard would result in the catastrophic result in this case.^[7] "To hold otherwise would be to convert the imperfect vision of reasonable foreseeability into the perfect vision of hindsight." Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 486, 523 A.2d 940 (1987).

I therefore conclude that, under the particular circumstances of this case, the defendant landlord cannot be held liable to the plaintiffs for the harm caused by an eighteen pound cinder block being dropped from a third story balcony onto the head of the minor plaintiff. The law should not countenance the extension of legal responsibility to such an attenuated result. I would affirm the judgment of the trial court and, accordingly, I respectfully dissent.^[8]

[1] The plaintiff Olga Rivera brought this action as a parent and next friend of her minor daughter, Adriana Ruiz, and on her own behalf.

[2] The trial court also granted summary judgment in favor of John R. Kovalcik and Intepros, Inc., parties that had been cited in by the plaintiffs as party defendants. John R. Kovalcik and Intepros, Inc., named Saribel Cruz and Delis Cabrera as apportionment defendants in an apportionment complaint.

The plaintiffs have only appealed the trial court's judgment rendering summary judgment in favor of Victory Properties, LLC, and we refer herein to Victory Properties, LLC, as the defendant.

[3] Although, on the summary judgment proceedings, the parties submitted affidavits and the transcript of the prejudgment remedy proceedings as well as the court's memorandum of decision on those proceedings, the summary judgment court issued a specific memorandum of decision stating all of the facts that it considered to be undisputed. We therefore confine our statement of the facts of the case to those facts determined by the summary judgment court to be those that are undisputed.

[4] The plaintiffs also claim that the court improperly disregarded the doctrine of law of the case, arguing that the instant issues were previously ruled on at the prejudgment remedy hearing and that, therefore, the summary judgment court should not have opened what had already been decided. In light of our conclusion that summary judgment was improperly granted on the ground that the defendant owed no duty to the plaintiffs, we need not reach this claim.

[5] The defendant cites to an Illinois Appellate Court decision, Trice v. Chicago Housing Authority, 14 Ill.App.3d 97, 302 N.E.2d 207 (1973), for the proposition that it does not owe a duty to the plaintiffs because of Luis Cruz' status as a third party. In Trice, the plaintiff's argument was that the landlord had a police duty to stop intentional criminal acts. Id., at 100-101, 302 N.E.2d 207. Not only does the present case not deal with a criminal act, but the plaintiffs here do not suggest that the defendant should have protected them from Luis Cruz, a third party; the plaintiffs merely seek a ruling that the defendant is held accountable for its violation of its duty to maintain safe common areas of its premises. The defendant's reliance on Spencer v. Nesto, 46 Conn.Supp. 566, 764 A.2d 224 (2000), is similarly misplaced. In that case, the superseding cause doctrine was applied to the criminal acts of a landlord's tenant, not unintentional acts.

[1] The plaintiff Olga Rivera brought this action as parent and next friend of the plaintiff Adriana Ruiz, her minor daughter, and on her own behalf.

[2] "The test for determining legal duty is a two-pronged analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis.... The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... [In other words], would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Citation omitted; internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 114-15, 869 A.2d 179 (2005).

[3] The trial court, in discussing the ramifications of extending a duty of care to the defendant under the circumstances of this case, made the following astute observations: "What would be the limitation of liability on a landlord for personal injury to a tenant if liability is imposed in this case? Suppose there is heavy lawn furniture in the backyard? What about the sandbags or weights used to stabilize a patio umbrella or a moveable basketball backboard? (In fact, one photograph submitted as an exhibit in this case shows a large rock used to stabilize the basketball hoop apparatus in this backyard.) What about a flowerpot near the back steps? If thrown off a balcony, practically anything can constitute a dangerous missile."

[4] The majority contends that the size and the nature of the object were not undisputed. It concludes that the object is a large rock. To me, this conclusion strengthens the defendant's argument that imposing a legal duty under the circumstances of this case would result in strict liability for any objects left in common areas by landlords. Is a landlord obligated to remove every rock, every branch and every piece of debris from its property to avoid liability for possible injuries to a child caused by the irresponsible actions of another child?

[5] As noted in the majority opinion, the plaintiffs also claim that the trial court improperly disregarded the doctrine of the law of the case. See footnote 4 of the majority opinion. Simply stated, a judge is not bound to follow a previous judge's ruling in an earlier stage of the proceedings if the subsequent judge is now of the opinion that the previous ruling was incorrect. See Breen v. Phelps, 186 Conn. 86, 98-99, 439 A.2d 1066 (1982).

[6] Nothing in the record indicates that there were any previous incidents in which children threw backyard debris from the building's balconies.

[7] Because I conclude that there is no legal duty because the harm was not reasonably foreseeable, it is not necessary to undertake a public policy analysis. See Monk v. Temple George Associates, LLC, supra, 273 Conn. at 114-15, 869 A.2d 179. Nevertheless, I agree with the trial court that extending liability under the circumstances of this case would create substantial economic and social costs. In its memorandum of decision, the court thoughtfully stated: "It cannot be ignored that this incident was precipitated by a child acting, as children often do, in a playful but irresponsible manner. To create liability for landlords in this situation would likely discourage landlords from renting apartments to families with young children. It would surely drive up the economic costs associated with maintaining and insuring rental properties, without a concomitant benefit of safeguarding against conditions and hazards that are much more prevalent than the one here. Recognizing such a duty, rather than contributing to the welfare of the public, is more likely to create a new burden on families looking for affordable rental housing. Though imposing liability on the defendant would surely be a benefit to the [minor] plaintiff and her family, the overall economic and societal costs militate against such an imposition in like situations."

[8] In part II of its opinion, the majority concludes that the trial court also improperly relied on the doctrine of superseding cause to reach its decision. I disagree with that interpretation. Nevertheless, assuming arguendo that the court erroneously applied the doctrine, this court may uphold the judgment "because [the trial court] reached the right result, even if it did so for the wrong reason." (Internal quotation marks omitted.) Weigold v. Patel, 81 Conn.App. 347, 353 n. 5, 840 A.2d 19, cert. denied, 268 Conn. 918, 847 A.2d 314 (2004).

4.2.2.4.2 No Duty on Policy Grounds 4.2.2.4.2 No Duty on Policy Grounds

4.2.2.4.2.1 Kubert v. Best ("The Distracting Texter Case") 4.2.2.4.2.1 Kubert v. Best ("The Distracting Texter Case")

Didn't the texter's actions foreseeably create a risk of harm? Why is she found not to have an ordinary duty to meet the standard of a reasonable person on that basis? How does the court reason about duty in this case?

75 A.3d 1214 (2013)432 N.J. Super. 495

Linda KUBERT and David Kubert, Plaintiffs-Appellants,
v.
Kyle BEST, Susan R. Best, Executrix of the Estate of Nickolas J. Best, Deceased, Defendants, and
Shannon Colonna, Defendant-Respondent.

Docket No. A-1128-12T4

Superior Court of New Jersey, Appellate Division.

Argued May 6, 2013.Decided August 27, 2013.

1217 *1217 Stephen S. Weinstein argued the cause for appellants (Stephen S. Weinstein, P.C., attorneys; Mr. Weinstein, of counsel and on the brief; Gail S. Boertzel, Morristown, on the brief).

Joseph J. McGlone argued the cause for respondent (McElroy, Deutsch, Mulvaney 1218 *1218 & Carpenter, L.L.P., attorneys; Mr. McGlone, of counsel and on the brief; Anthony J. Bianco, Morristown, on the brief).

Before Judges ASHRAFI, ESPINOSA and GUADAGNO.

The opinion of the court was delivered by

ASHRAFI, J.A.D.

Plaintiffs Linda and David Kubert were grievously injured by an eighteen-year-old driver who was texting while driving and crossed the center-line of the road. Their claims for compensation from the young driver have been settled and are no longer part of this lawsuit. Plaintiffs appeal the trial court's dismissal of their claims against the driver's seventeen-year-old friend who was texting the driver much of the day and sent a text message to him immediately before the accident.

New Jersey prohibits texting while driving. A statute under our motor vehicle laws makes it illegal to use a cell phone that is not "hands-free" while driving, except in certain specifically-described emergency situations. N.J.S.A. 39:4-97.3.^[1] An offender is subject to a fine of $100. N.J.S.A. 39:4-97.3(d). For future cases like this one, the State Legislature enacted a law, called the "Kulesh, Kubert, and Bolis Law," to provide criminal penalties for those who are distracted by use of a cell phone while driving and injure others. The new law explicitly permits a jury to infer that a driver who was using a hand-held cell phone and caused injury in an accident may be guilty of assault by auto, a fourth-degree crime if someone was injured seriously, thus exposing the driver to a potential sentence in state prison.^[2]

The issue before us is not directly addressed by these statutes or any case law that has been brought to our attention. 1219 *1219 We must determine as a matter of civil common law whether one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text. We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.

In this appeal, we must also decide whether plaintiffs have shown sufficient evidence to defeat summary judgment in favor of the remote texter. We conclude they have not. We affirm the trial court's order dismissing plaintiffs' complaint against the sender of the text messages, but we do not adopt the trial court's reasoning that a remote texter does not have a legal duty to avoid sending text messages to one who is driving.

I.

The Kuberts' claims against defendant Shannon Colonna, the teenage sender of the texts, were never heard by a jury. Since this appeal comes to us from summary judgment in favor of Colonna, we view all the evidence and reasonable inferences that can be drawn from the evidence favorably to plaintiffs, the Kuberts. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995).

On the afternoon of September 21, 2009, David Kubert was riding his motorcycle, with his wife, Linda Kubert, riding as a passenger. As they came south around a curve on Hurd Street in Mine Hill Township, a pick-up truck being driven north by eighteen-year-old Kyle Best crossed the double center line of the roadway into their lane of travel. David Kubert attempted to evade the pick-up truck but could not. The front driver's side of the truck struck the Kuberts and their motorcycle. The collision severed, or nearly severed, David's left leg. It shattered Linda's left leg, leaving her fractured thighbone protruding out of the skin as she lay injured in the road.

Best stopped his truck, saw the severity of the injuries, and called 911. The time of the 911 call was 17:49:15, that is, fifteen seconds after 5:49 p.m. Best, a volunteer fireman, aided the Kuberts to the best of his ability until the police and emergency medical responders arrived. Medical treatment could not save either victim's leg. Both lost their left legs as a result of the accident.^[3]

After the Kuberts filed this lawsuit, their attorney developed evidence to prove Best's activities on the day of the accident. In September 2009, Best and Colonna were seeing each other socially but not exclusively; they were not boyfriend and girlfriend. Nevertheless, they texted each other many times each day. Best's cell phone record showed that he and Colonna texted each other sixty-two times on the day of the accident, about an equal number of texts originating from each. They averaged almost fourteen texts per hour for the four-and-a-half-hour, non-consecutive time-span they were in telephone contact on the day of the accident.

The telephone record also showed that, in a period of less than twelve hours on that day, Best had sent or received 180 text messages. In her deposition, Colonna 1220 *1220 acknowledged that it was her habit also to text more than 100 times per day. She said: "I'm a young teenager. That's what we do." She also testified that she generally did not pay attention to whether the recipient of her texts was driving a car at the time or not. She thought it was "weird" that plaintiffs' attorney was trying to pin her down on whether she knew that Best was driving when she texted him.

During the day of the accident, a Monday, Best and Colonna exchanged many text messages in the morning, had lunch together at his house, and watched television until he had to go to his part-time job at a YMCA in Randolph Township.^[4] The time record from the YMCA showed that Best punched in on a time clock at 3:35 p.m. At 3:49 p.m., Colonna texted him, but he did not respond at that time. He punched out of work at 5:41. A minute later, at 5:42, Best sent a text to Colonna. He then exchanged three text messages with his father, testifying at his deposition that he did so while in the parking lot of the YMCA and that the purpose was to notify his parents he was coming home to eat dinner with them.

The accident occurred about four or five minutes after Best began driving home from the YMCA. At his deposition, Best testified that he did not text while driving—meaning that it was not his habit to text when he was driving. He testified falsely at first that he did not text when he began his drive home from the YMCA on the day of the accident. But he was soon confronted with the telephone records, which he had seen earlier, and then he admitted that he and Colonna exchanged text messages within minutes of his beginning to drive.

The sequence of texts between Best and Colonna in the minutes before and after the accident is shown on the following chart. The first-listed text occurred immediately after Best left work, apparently while he was still at the YMCA, and the three texts in boldface type are those that were exchanged while Best was driving:

Sent      Sender      Received   Recipient

5:42:03   Best        5:42:12    Colonna

5:47:49   Best        5:47:56    Colonna
5:48:14   Colonna     5:48:23    Best
5:48:58   Best        5:49:07    Colonna

(5:49:15   911 Call)

5:49:20   Colonna     5:55:30    Best
5:54:08   Colonna     5:55:33    Best

This sequence indicates the precise time of the accident—within seconds of 5:48:58. Seventeen seconds elapsed from Best's sending a text to Colonna and the time of the 911 call after the accident. Those seconds had to include Best's stopping his vehicle, observing the injuries to the Kuberts, and dialing 911. It appears, therefore, that Best collided with the Kuberts' motorcycle immediately after sending a text at 5:48:58. It can be inferred that he sent that text in response to Colonna's text 1221 *1221 to him that he received twenty-five seconds earlier. Finally, it appears that Best initiated the texting with Colonna as he was about to and after he began to drive home.

Missing from the evidence is the content of the text messages. Plaintiffs were not able to obtain the messages Best and Colonna actually exchanged, and Best and Colonna did not provide that information in their depositions. The excerpts of Best's deposition that have been provided to us for this appeal do not include questions and answers about the content of his text messages with Colonna late that afternoon. When Colonna's deposition was taken sixteen months after the accident, she testified she did not remember her texts that day. Despite the fact that Best did not respond to her last two texts at 5:55 p.m., and despite her learning on the same evening that he had been involved in a serious accident minutes before he failed to respond to her, Colonna testified that she had "no idea" what the contents of her text messages with Best were that afternoon.

After plaintiffs learned of Colonna's involvement and added her to their lawsuit, she moved for summary judgment. Her attorney argued to the trial court that Colonna had no liability for the accident because she was not present at the scene, had no legal duty to avoid sending a text to Best when he was driving, and further, that she did not know he was driving. The trial judge reviewed the evidence and the arguments of the attorneys, conducted independent research on the law, and ultimately concluded that Colonna did not have a legal duty to avoid sending a text message to Best, even if she knew he was driving. The judge dismissed plaintiffs' claims against Colonna.

II.

On appeal before us, plaintiffs argue that Colonna is potentially liable to them if a jury finds that her texting was a proximate cause of the accident. They argue that she can be found liable because she aided and abetted Best's unlawful texting while he was driving, and also because she had an independent duty to avoid texting to a person who was driving a motor vehicle. They claim that a jury can infer from the evidence that Colonna knew Best was driving home from his YMCA job when she texted him at 5:48:14, less than a minute before the accident.

We are not persuaded by plaintiffs' arguments as stated, but we also reject defendant's argument that a sender of text messages never has a duty to avoid texting to a person driving a vehicle. We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving. But we also conclude that plaintiffs have not presented sufficient evidence to prove that Colonna had such knowledge when she texted Best immediately before the accident.

A.

We first address generally the nature of a duty imposed by the common law.^[5]

1222 *1222 In a lawsuit alleging that a defendant is liable to a plaintiff because of the defendant's negligent conduct, the plaintiff must prove four things: (1) that the defendant owed a duty of care to the plaintiff, (2) that the defendant breached that duty, (3) that the breach was a proximate cause of the plaintiff's injuries, and (4) that the plaintiff suffered actual compensable injuries as a result. Polzo v. Cnty. of Essex, 196 N.J. 569, 584, 960 A.2d 375 (2008). The plaintiff bears the burden of proving each of these four "core elements" of a negligence claim. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 400, 972 A.2d 1112 (2009).

Because plaintiffs in this case sued Best and eventually settled their claims against him, it is important to note that the law recognizes that more than one defendant can be the proximate cause of and therefore liable for causing injury. See, e.g., Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 106-08, 853 A.2d 940 (2004); Rappaport v. Nichols, 31 N.J. 188, 203-04, 156 A.2d 1 (1959). Whether a duty exists to prevent harm is not controlled by whether another person also has a duty, even a greater duty, to prevent the same harm. If more than one defendant breached his or her duty and proximately caused the injuries, the jury at a trial may determine relative fault and assign a percentage of responsibility to each under our comparative negligence statutes, N.J.S.A. 2A:15-5.1 to-5.4. See Brodsky, supra, 181 N.J. at 108, 853 A.2d 940.

"A duty is an obligation imposed by law requiring one party `to conform to a particular standard of conduct toward another.'" Acuna v. Turkish, 192 N.J. 399, 413, 930 A.2d 416 (2007) (quoting Prosser & Keeton on Torts: Lawyer's Edition § 53, at 356 (5th ed. 1984)), cert. denied, 555 U.S. 813, 129 S.Ct. 44, 172 L.Ed.2d 22 (2008); see also Restatement (Second) of Torts § 4 (1965) ("The word `duty' ... denote[s] the fact that the actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor's conduct is a legal cause.").

Whether a duty of care exists "is generally a matter for a court to decide," 1223 *1223 not a jury. Acuna, supra, 192 N.J. at 413, 930 A.2d 416. The "fundamental question [is] whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." J.S. v. R.T.H., 155 N.J. 330, 338, 714 A.2d 924 (1998) (quoting Weinberg v. Dinger, 106 N.J. 469, 481, 524 A.2d 366 (1987)).

The New Jersey Supreme Court recently analyzed the common law process by which a court decides whether a legal duty of care exists to prevent injury to another. Estate of Desir ex. rel. Estiverne v. Vertus, 214 N.J. 303, 69 A.3d 1247 (2013). The Court reviewed precedents developed over the years in our courts and restated the "most cogent explanation of the principles that guide [the courts] in determining whether to recognize the existence of a duty of care":

"[w]hether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors—the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.... The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct."

[(Id. at 322, 69 A.3d 1247) (alteration in original) (citations omitted) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993)).]

The Court emphasized that the law must take into account "generally applicable rules to govern societal behaviors," not just an "outcome that reaches only the particular circumstances and parties before the Court today[.]" Id. at 323, 69 A.3d 1247. The Court described all of these considerations as "a full duty analysis" to determine whether the law recognizes a duty of care in the particular circumstances of a negligence case. Id. at 316, 69 A.3d 1247 (quoting Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44, 34 A.3d 1248 (2012)).

B.

In this case, plaintiffs argue that a duty of care should be imposed upon Colonna because she aided and abetted Best's violation of the law when he used his cell phone while driving. To support their argument, plaintiffs cite section 876 of the Restatement (Second) of Torts (1965), a compilation of common law principles. Under section 876 of the Restatement, an individual is liable if he or she knows that another person's "conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other."

To illustrate this concept, the Restatement provides the following hypothetical example:

A and B participate in a riot in which B, although throwing no rocks himself, encourages A to throw rocks. One of the rocks strikes C, a bystander. B is subject to liability to C.

[Restatement § 876, comment d, illustration 4.]

The example illustrates that one does not actually have to be the person who threw a rock to be liable for injury caused by the rock. In Tarr v. Ciasulli, 181 N.J. 70, 84, 853 A.2d 921 (2004), the New Jersey 1224 *1224 Supreme Court adopted the principle stated in Restatement § 876 as applicable to determine joint liability when persons act in concert and cause harm to another.

In this case, plaintiffs assert that Colonna and Best were acting in concert in exchanging text messages. Although Colonna was at a remote location from the site of the accident, plaintiffs say she was "electronically present" in Best's pick-up truck immediately before the accident and she aided and abetted his unlawful use of his cell phone.

In Champion ex rel. Ezzo v. Dunfee, 398 N.J.Super. 112, 939 A.2d 825 (App.Div.), certif. denied, 195 N.J. 420, 949 A.2d 849 (2008), we analyzed Restatement § 876 in a context where the defendant was actually present at the site of the accident. In Champion, the injured plaintiff was a backseat passenger in a car driven by a friend who had been drinking. The driver's girlfriend was also a passenger in the car, sitting in the front seat. The car approached speeds of 100 miles per hour as the driver tried to prove the performance capabilities of his car. The car hit a bump and crashed, severely injuring the backseat passenger. Champion, supra, 398 N.J.Super. at 116-17, 939 A.2d 825. He sued the driver, and subsequently, added the driver's girlfriend as a defendant in his lawsuit on a theory that she had a duty to prevent her boyfriend from driving because she knew he had been drinking. Id. at 117, 939 A.2d 825.

We described the legal issue as follows: "whether a passenger in a motor vehicle, which she neither owns nor controls, owes an affirmative duty to a fellow passenger to prevent a visibly intoxicated driver from operating his own automobile." Id. at 115, 939 A.2d 825. We reviewed common law precedents from other jurisdictions where passengers in a car had encouraged the driver to consume alcohol or drugs or otherwise to drive dangerously, and we compared those precedents to others where the passengers were present but neither encouraged nor prevented the negligent conduct of the driver. Id. at 122-23, 939 A.2d 825. We concluded in Champion that the law permits recovery against a passenger under two conditions. One is a "special relationship" that gave the passenger control over the driver's conduct, such as an employer-employee or parent-child relationship. Id. at 121-22, 939 A.2d 825. The second is "that the defendant passenger actively encouraged the driver to commit" the negligent act. Id. at 122, 939 A.2d 825 (emphasis added). Mere failure to prevent wrongful conduct by another is ordinarily not sufficient to impose liability. Id. at 118, 939 A.2d 825. In Champion, the girlfriend could not be held liable merely for failing to prevent her boyfriend's negligent driving. Id. at 127, 939 A.2d 825.

In this case, Colonna did not have a special relationship with Best by which she could control his conduct. Nor is there evidence that she actively encouraged him to text her while he was driving. Colonna sent two texts to Best in the afternoon of September 21, 2009, one about two hours and the second about twenty-five seconds before the accident. What she said in those texts is unknown. Even if a reasonable inference can be drawn that she sent messages requiring responses, the act of sending such messages, by itself, is not active encouragement that the recipient read the text and respond immediately, that is, while driving and in violation of the law.

Another case decided by this court, Podias v. Mairs, 394 N.J.Super. 338, 926 1225 *1225 A.2d 859 (App.Div.), certif. denied, 192 N.J. 482, 932 A.2d 32 (2007), also provides some guidance on liability of a passenger for aiding and abetting a driver's wrongful conduct. In Podias, we reviewed claims against two passengers who were present when an eighteen-year-old driver who had been drinking struck and injured a motorcyclist at 2:00 a.m. on the Garden State Parkway. Id. at 343-44, 926 A.2d 859. Rather than calling for medical aid for the unconscious motorcyclist, the passengers discussed how to prevent detection of their own involvement in the incident. They had cell phones, but they did not call the police, and they also told the driver not to call the police and not to get them involved. Id. at 344-45, 926 A.2d 859. The driver and passengers all fled the scene of the accident. The motorcyclist was killed by another driver who did not see him lying injured in the roadway. Id. at 345, 926 A.2d 859.

We reviewed Restatement § 876 and held that the passengers could be found liable for giving "substantial assistance" to the driver in failing to fulfill his legal duty to remain at the scene of the accident and to notify the police. Id. at 353-54, 926 A.2d 859. We found "an aiding and abetting theory" to be viable because the passengers had taken "affirmative steps in the immediate aftermath [of the accident] to conceal their involvement" and to encourage the driver's violation of the law. Id. at 355, 926 A.2d 859.^[6]

Unlike the facts of Podias, the evidence in this case is not sufficient for a jury to conclude that Colonna took affirmative steps and gave substantial assistance to Best in violating the law. Plaintiffs produced no evidence tending to show that Colonna urged Best to read and respond to her text while he was driving.

The evidence available to plaintiffs is not sufficient to prove Colonna's liability to the Kuberts on the basis of aiding and abetting Best's negligent driving while using a cell phone.

C.

Plaintiffs argue alternatively that Colonna independently had a duty not to send texts to a person who she knew was driving a vehicle. They have not cited a case in New Jersey or any other jurisdiction that so holds, and we have not found one in our own research.

The trial court cited one case that involved distraction of the driver by text messages, Durkee v. C.H. Robinson Worldwide, Inc., 765 F.Supp.2d 742 (W.D.N.C.2011), aff'd sub nom. Durkee v. Geologic Solutions, Inc., 502 Fed.Appx. 326 (4th Cir.2013). In Durkee, the plaintiffs were injured when a tractor-trailer rear-ended their car. Id. at 745. In addition to the truck driver and other defendants, they sued the manufacturer of a text-messaging device that was installed in the tractor-trailer. They claimed the device was designed defectively because it could be viewed while the truck driver was driving and it distracted the driver immediately before the accident that injured them. Id. at 745-46. The federal court dismissed the plaintiffs' claims against the manufacturer of the device, holding that it was the driver's duty to avoid distraction. Id. at 750, 754. Since other normal devices in a motor vehicle could distract the driver, 1226 *1226 such as a radio or GPS device, attributing a design defect to the product would have too far-reaching an effect. It would allow product liability lawsuits against manufacturers of ordinary devices found in many motor vehicles and hold them liable for a driver's careless use of the product. Id. at 749.

Similarly, at least two state courts have declined to hold manufacturers of cell phones liable for failing to design their products to prevent harm caused when drivers are distracted by use of the phones. See Estate of Doyle v. Sprint/Nextel Corp., 248 P.3d 947, 951 (Okla.Civ.App.2010); Williams v. Cingular Wireless, 809 N.E.2d 473, 478 (Ind.Ct. App.), appeal denied, 822 N.E.2d 976 (Ind. 2004).

We view Durkee and these state cases as appropriately leading to the conclusion that one should not be held liable for sending a wireless transmission simply because some recipient might use his cell phone unlawfully and become distracted while driving. Whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability.

Having considered the competing arguments of the parties, we also conclude that liability is not established by showing only that the sender directed the message to a specific identified recipient, even if the sender knew the recipient was then driving. We conclude that additional proofs are necessary to establish the sender's liability, namely, that the sender also knew or had special reason to know that the driver would read the message while driving and would thus be distracted from attending to the road and the operation of the vehicle. We reach these conclusions by examining the law in analogous circumstances and applying "a full duty analysis" as discussed in Desir, supra, 214 N.J. at 317, 69 A.3d 1247.

A section of the Restatement that the parties have not referenced provides:

An act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other.

[Restatement § 303.]

To illustrate this concept, the Restatement provides the following hypothetical example:

A is driving through heavy traffic. B, a passenger in the back seat, suddenly and unnecessarily calls out to A, diverting his attention, thus causing him to run into the car of C. B is negligent toward C.

[Restatement § 303, comment d, illustration 3.]

We have recognized that a passenger who distracts a driver can be held liable for the passenger's own negligence in causing an accident. In other words, a passenger in a motor vehicle has a duty "not to interfere with the driver's operations." Champion, supra, 398 N.J.Super. at 118, 939 A.2d 825 (citing Lombardo v. Hoag, 269 N.J.Super. 36, 54, 634 A.2d 550 (App.Div.1993), certif. denied, 135 N.J. 469, 640 A.2d 850 (1994)).

One form of interference with a driver might be obstructing his view or otherwise diverting his attention from the tasks of driving. It would be reasonable to hold a passenger liable for causing an 1227 *1227 accident if the passenger obstructed the driver's view of the road, for example, by suddenly holding a piece of paper in front of the driver's face and urging the driver to look at what is written or depicted on the paper. The same can be said if a passenger were to hold a cell phone with a text message or a picture in front of the driver's eyes. Such distracting conduct would be direct, independent negligence of the passenger, not aiding and abetting of the driver's negligent conduct. Here, of course, Colonna did not hold Best's cell phone in front of his eyes and physically distract his view of the road.

The more relevant question is whether a passenger can be liable not for actually obstructing the driver's view but only for urging the driver to take his eyes off the road and to look at a distracting object. We think the answer is yes, but only if the passenger's conduct is unreasonably risky because the passenger knows, or has special reason to know, that the driver will in fact be distracted and drive negligently as a result of the passenger's actions.

It is the primary responsibility of the driver to obey the law and to avoid distractions. Imposing a duty on a passenger to avoid any conduct that might theoretically distract the driver would open too broad a swath of potential liability in ordinary and innocent circumstances. As the Supreme Court stated in Desir, supra, 214 N.J. at 323, 69 A.3d 1247 courts must be careful not to "create a broadly worded duty and ... run the risk of unintentionally imposing liability in situations far beyond the parameters we now face." "The scope of a duty is determined under `the totality of the circumstances,' and must be `reasonable' under those circumstances." J.S., supra, 155 N.J. at 339, 714 A.2d 924 (quoting Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 514, 520, 694 A.2d 1017 (1997)).

"Foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists." Id. at 337, 714 A.2d 924; accord Williamson v. Waldman, 150 N.J. 232, 239, 696 A.2d 14 (1997). "Foreseeability, in turn, is based on the defendant's knowledge of the risk of injury." Podias, supra, 394 N.J.Super. at 350, 926 A.2d 859 (citing Weinberg, supra, 106 N.J. at 484-85, 524 A.2d 366).

It is foreseeable that a driver who is actually distracted by a text message might cause an accident and serious injuries or death, but it is not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text. Like a call to voicemail or an answering machine, the sending of a text message by itself does not demand that the recipient take any action. The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction.

"When the risk of harm is that posed by third persons, a plaintiff may be required to prove that defendant was in a position to `know or have reason to know, from past experience, that there [was] a 1228 *1228 likelihood of conduct on the part of [a] third person[]' that was `likely to endanger the safety' of another." J.S., supra, 155 N.J. at 338, 714 A.2d 924 (quoting Clohesy, supra, 149 N.J. at 507, 694 A.2d 1017). In J.S., the Court used the phrase "special reason to know" in reference to a personal relationship or prior experience that put a defendant "in a position" to "discover the risk of harm." Ibid. Consequently, when the sender "has actual knowledge or special reason to know," id. at 352, 714 A.2d 924, from prior texting experience or otherwise, that the recipient will view the text while driving, the sender has breached a duty of care to the public by distracting the driver.

Our conclusion that a limited duty should be imposed on the sender is supported by the "full duty analysis" described by the Supreme Court—identifying, weighing, and balancing "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Desir, supra, 214 N.J. at 332, 69 A.3d 1247; Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110. When the sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle. As we have stated, a passenger must avoid distracting the driver. The remote sender of a text who knows the recipient is then driving must do the same.

When the sender texts a person who is then driving, knowing that the driver will immediately view the text, the sender has disregarded the attendant and foreseeable risk of harm to the public. The risk is substantial, as evidenced by the dire consequences in this and similar cases where texting drivers have caused severe injuries or death.

With respect to the sender's opportunity to exercise care, "[a] corresponding consideration is the practicality of preventing [the risk]." Podias, supra, 394 N.J.Super. at 350, 926 A.2d 859. We must take into account "how establishing this duty will work in practice." Desir, supra, 214 N.J. at 328, 69 A.3d 1247. In imposing an independent duty of the passengers in Podias, we noted the "relative ease" with which they could have used their cell phones to summon help for the injured motorcyclist. Podias, supra, 394 N.J.Super. at 351, 926 A.2d 859. It is just as easy for the sender of a text message to avoid texting to a driver who the sender knows will immediately view the text and thus be distracted from driving safely. "When the defendant's actions are `relatively easily corrected' and the harm sought to be presented is `serious,' it is fair to impose a duty." Id. at 350, 926 A.2d 859 (quoting J.S., supra, 155 N.J. at 339-40, 714 A.2d 924).

At the same time, "[c]onsiderations of fairness implicate the scope as well as the existence of a duty." J.S., supra, 155 N.J. at 349, 714 A.2d 924. Limiting the duty to persons who have such knowledge will not require that the sender of a text predict in every instance how a recipient will act. It will not interfere with use of text messaging to a driver that one expects will obey the law. The limited duty we impose will not hold texters liable for the unlawful conduct of others, but it will hold them liable for their own negligence when they have knowingly disregarded a foreseeable risk of serious injury to others.

1229 *1229 Finally, the public interest requires fair measures to deter dangerous texting while driving. Just as the public has learned the dangers of drinking and driving through a sustained campaign and enhanced criminal penalties and civil liability, the hazards of texting when on the road, or to someone who is on the road, may become part of the public consciousness when the liability of those involved matches the seriousness of the harm.

Our concurring colleague expresses reluctance to conclude that a remote texter has an independent duty of care to avoid being a cause of traffic accidents and injuries. The concurring opinion states that traditional tort principles are sufficient to decide in this case that Colonna had no liability for the Kuberts' injuries and we should say no more. Post at 524-25, 75 A.3d at 1232. We have been asked to decide the status of the law in these circumstances, and we have applied traditional tort principles, as developed in analogous cases, to delineate the limited scope of a remote texter's duty. As the New Jersey Supreme Court confirmed in Desir, supra, 214 N.J. at 322, 69 A.3d 1247: "It has long been true that `[d]eterminations of the scope of duty in negligence cases has traditionally been a function of the judiciary.'" (quoting Kelly v. Gwinnell, 96 N.J. 538, 552, 476 A.2d 1219 (1984)).

To summarize our conclusions, we do not hold that someone who texts to a person driving is liable for that person's negligent actions; the driver bears responsibility for obeying the law and maintaining safe control of the vehicle. We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time.

D.

In this case, plaintiffs developed evidence pertaining to the habits of Best and Colonna in texting each other repeatedly. They also established that the day of the accident was not an unusual texting day for the two. But they failed to develop evidence tending to prove that Colonna not only knew that Best was driving when she texted him at 5:48:14 p.m. but that she knew he would violate the law and immediately view and respond to her text.

As our recitation of the facts shows, Colonna sent only one text while Best was driving. The contents of that text are unknown. No testimony established that she was aware Best would violate the law and read her text as he was driving, or that he would respond immediately. The evidence of multiple texting at other times when Best was not driving did not prove that Colonna breached the limited duty we have described.

Because the necessary evidence to prove breach of the remote texter's duty is absent on this record, summary judgment was properly granted dismissing plaintiffs' claims against Colonna.

Affirmed.

ESPINOSA, J.A.D., concurring.

I concur in the result we reach today. I also observe that the bar set by the majority for the imposition of liability is high and will rarely be met since the duty created arises when the conduct of a person, not in an automobile, interferes with the driver's operation of the vehicle. Still, I do not agree that it is necessary for us to articulate a new duty specific to persons in remote locations who send text messages to drivers, and I part company with my 1230 *1230 colleagues in their analysis of the duty imposed. In my view, traditional tort principles provide adequate guidance to determine whether liability should be imposed in such circumstances.

"Traditional tort theory emphasizes individual liability, which is to say that each particular defendant who is to be charged with responsibility must be proceeding negligently." Podias, supra, 394 N.J.Super. at 346, 926 A.2d 859. As we have noted, the driver carries the personal responsibility to obey traffic laws and exercise appropriate care for the safety of others, (op. at 516-17, 75 A.3d at 1227). This responsibility includes the obligation to avoid or ignore distractions created by other persons, whether in the automobile or at a remote location, that impair the driver's ability to exercise appropriate care for the safety of others. Text messages received while driving plainly constitute a distraction the driver must ignore.^[1]

The majority finds, "[w]hen the sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle." (op. at 517, 75 A.3d at 1228). The premise for this holding is that knowledge a text message will "reach the driver while operating a vehicle," without more, places the remote texter in a position equivalent to that of a passenger in the vehicle. The equation of these positions is Procrustean in nature, however, because a person who is not present in the automobile lacks the first-hand knowledge of the circumstances attendant to the driver's operation of the vehicle that a passenger possesses and has even less ability to control the actions of the driver. Still, the analysis applicable to passenger liability is helpful.

Passenger liability was at issue in two of the cases discussed in the majority opinion, Champion, supra, 398 N.J.Super. 112, 939 A.2d 825, and Podias, supra, 394 N.J.Super. 338, 926 A.2d 859. Both cases concerned a passenger's failure to prevent the driver from engaging in conduct that posed a risk of harm to another.

In Champion, supra, the plaintiff, a passenger, alleged that the driver's girlfriend, a fellow passenger, was negligent in failing to prevent the visibly intoxicated driver from operating his own automobile. We disapproved an extension of principles that would impose "a new duty on anyone beyond those in control and operation of the vehicle." 398 N.J.Super. at 120, 939 A.2d 825 (citing Lombardo, supra, 269 N.J.Super. at 48, 634 A.2d 550). We recognized two exceptions to the rule of passenger non-liability, i.e., when a special relationship exists between the passenger and 1231 *1231 driver that affords the passenger "some control over the driver," as embodied in Restatement (Second) of Torts § 315 (1965),^[2] Champion, supra, 398 N.J.Super. at 121, 939 A.2d 825, and when "the passenger substantially encourages or assists in the driver's tortious conduct." Id. at 122, 939 A.2d 825 (citing Restatement (Second) of Torts § 876 (1979)).

As the majority opinion notes, the type of "special relationship," such as parent-child, master-servant, landlord-tenant, and guardian-ward, required to impose liability for the conduct of another under section 315 of the Restatement, ibid., was not present here. (op. at 511-13, 75 A.3d at 1224-25).

To prevail on the "aiding and abetting" theory based on section 876 of the Restatement, the plaintiff must prove three elements: "(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation." Tarr, supra, 181 N.J. at 84, 853 A.2d 921.

As to the last of these factors, the comments to section 876 note that "[t]he assistance of or participation by the defendant may be so slight that he is not liable for the act of the other." Restatement (Second) of Torts § 876(b) cmt. d. (1979). To assist in determining whether a defendant provided "substantial assistance," the comments list five factors to be considered: "the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind." Ibid.; see also Hurley v. Atl. City Police Dep't, 174 F.3d 95, 127 n. 27 (3d Cir.1999) (noting the addition of a sixth relevant factor, the duration of the assistance provided, by the D.C. Circuit in Halberstam v. Welch, 705 F.2d 472, 484 (D.C.Cir.1983)), cert. denied, 528 U.S. 1074, 120 S.Ct. 786, 145 L.Ed.2d 663 (2000); Podias, supra, 394 N.J.Super. at 353, 926 A.2d 859.

When the tort is the driver's use of text messaging, it is evident that at least one of the factors—the remote texter's absence from the location of the tort—will weigh against liability. The driver requires no assistance from the remote texter to commit this tort and so, a determination of potential liability will depend largely on whether the remote texter provided the level of "active and purposeful conduct" that is required for aiding-and-abetting liability to be imposed. Tarr, supra, 181 N.J. at 83, 853 A.2d 921.

In Champion, supra, we cited cases that illustrated examples of such active encouragement, such as where the passenger encouraged the driver to ignore applicable traffic laws or provided intoxicants to the driver to consume while driving. 398 N.J.Super. at 122-23, 939 A.2d 825. In each example, the passenger's presence in the automobile provided an awareness of the circumstances that contributed to the risk created by the driver's conduct. E.g. Cooper v. Bondoni, 841 P.2d 608, 611-12 (Okla.Civ.App.1992) (minor passengers 1232 *1232 gave substantial assistance and encouragement to minor driver's negligent operation of his vehicle where they provided him with alcoholic beverages and urged him to pass a truck while climbing a hill in a nopassing zone), cert. denied (Okla.1992). However, mere presence and participation in the same activity that gave rise to the driver's liability, such as drinking alcohol in the car, were insufficient to constitute the substantial encouragement required for the imposition of liability. Champion, supra, 398 N.J.Super. at 123-24, 939 A.2d 825; see also Podias, supra, 394 N.J.Super. at 353, 926 A.2d 859 (noting that "`aiding-abetting' focuses on whether a defendant knowingly gave `substantial assistance' to someone engaged in wrongful conduct, not on whether the defendant agreed to join the wrongful conduct").

In contrast to Champion, where the passenger's conduct can be considered mere acquiescence to the driver's tortious conduct, the circumstances and conduct of the passengers in Podias provided a basis for the imposition of liability where passengers urged the driver to leave a hit-and-run victim lying on the Garden State Parkway in the middle of the night and failed to call for any assistance for the victim. We stated, "the degree of defendants' involvement, coupled with the serious peril threatening imminent death to another that might have been avoided with little effort and inconvenience ... creates a sufficient relation to impose a duty of action." Id. at 356, 926 A.2d 859. Still, we stressed the "narrowness of the issue before us" and stated, "[w]e formulate today no rule of general application." Id. at 355, 926 A.2d 859.

Just as it was unnecessary to formulate a new rule in Podias, we need not create a new duty here. Traditional tort principles provide adequate guidance for our analysis and, indeed, provide the framework for the majority opinion.

There was no special relationship that provided Colonna with the means to control Best's conduct. Therefore, the exception to the general rule that one has no duty to prevent the tortious conduct of another embodied in section 315 of the Restatement does not apply.

Consideration of the factors relevant to an aiding and abetting analysis in this case also supports our conclusion that the evidence was insufficient to impose liability upon Colonna for aiding and abetting Best's negligent conduct. Specifically, there was no evidence that Colonna was "generally aware of [her] role as part of an overall illegal or tortious activity at the time that" she texted Best. See Tarr, supra, 181 N.J. at 84, 853 A.2d 921. Turning to the factors relevant to a determination whether Colonna "knowingly and substantially assist[ed] the principal violation," see ibid., the act she purportedly encouraged was Best's text messaging while driving. She was not physically present at the place of the principal violation and her remote location afforded her limited, if any, knowledge of the circumstances of Best's text messaging. Her "assistance" consisted of receiving several text messages and sending one in reply before the accident. The evidence regarding her state of mind fails to reveal any intention to assist Best in committing a tortious act. Even assuming that Colonna knew Best was driving, her conduct in sending a text under the circumstances here amounted to that of a companion who merely participated in the same activity and who did not actively encourage Best to ignore applicable law and safety hazards.

The implications of creating a new duty are that existing principles fail to address 1233 *1233 the issue and that liability could be imposed under circumstances that would not provide a basis for doing so under existing law. Because traditional tort principles provide a sufficient measure for assessing the liability of a person who sends a text message to a driver, I see no reason to establish a new standard for such conduct, particularly when the record before us does not support the imposition of liability upon the remote texter.

The dangers associated with text messaging while driving, and the devastating consequences in this case, were known to the Legislature. We have nothing before us that reflects whether the Legislature considered legislation that would have imposed either civil liability or criminal penalties for a remote texter who sends a distracting text message to a driver. What we do know is that the legislative response was to amend the assault by auto statute, N.J.S.A. 2C:12-1(c)(1), to permit the jury to infer that a defendant who unlawfully used a cell phone while driving "was driving recklessly." See "Kulesh's, Kuberts' and Bolis' Law," L. 2012, c. 22. The effect of the amendment was to codify a permissive inference that the jury could have drawn prior to its enactment. Both before and after the amendment, recklessness was an essential element of N.J.S.A. 2C:12-1(c)(1) and the grading of the conduct as either a fourth-degree offense or a disorderly persons offense turned on the degree of injury, not on whether a cell phone was in use. In short, the legislative response was measured, even as to the driver, and did not include any action as to the remote texter.

Therefore, I concur in the result reached, but not in the analysis of the majority opinion.

[1] N.J.S.A. 39:4-97.3 states in part:

a. The use of a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or highway shall be unlawful except when the telephone is a hands-free wireless telephone or the electronic communication device is used hands-free....

Nothing in [this law] shall apply to the use of a citizen's band radio or two-way radio by an operator of a moving commercial motor vehicle or authorized emergency vehicle on a public road or highway.

b. The operator of a motor vehicle may use a hand-held wireless telephone while driving with one hand on the steering wheel only if:

(1) The operator has reason to fear for his life or safety, or believes that a criminal act may be perpetrated against himself or another person; or

(2) The operator is using the telephone to report to appropriate authorities a fire, a traffic accident, a serious road hazard or medical or hazardous materials emergency, or to report the operator of another motor vehicle who is driving in a reckless, careless or otherwise unsafe manner or who appears to be driving under the influence of alcohol or drugs....

[2] N.J.S.A. 2C:12-1(c)(1) states:

A person is guilty of assault by auto or vessel when the person drives a vehicle or vessel recklessly and causes either serious bodily injury or bodily injury to another. Assault by auto or vessel is a crime of the fourth degree if serious bodily injury results and is a disorderly persons offense if bodily injury results. Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L. 2003, c. 310 (C. 39:4-97.3) may give rise to an inference that the defendant was driving recklessly.

[Emphasis added.]

The underscored sentence was added by L. 2012, c. 22, § 2, which took effect on July 18, 2012. The amended statute does not apply to the accident in this case.

[3] Our appellate record does not include medical evidence, and so, we have not been informed of other injuries the Kuberts suffered in the accident.

[4] Our record does not indicate why Colonna was not in school that day. Best was a student at a community college and also worked part-time.

[5] Common law refers to judicial determination of the law where the Legislature has not enacted a directly-applicable statute. See, e.g., In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988); Kelly v. Gwinnell, 96 N.J. 538, 552-53, 476 A.2d 1219 (1984). Historically, the American system of justice was derived from the English common law. See, e.g., State v. Smith, 85 N.J. 193, 199-204, 426 A.2d 38 (1981); In re Will of Davis, 134 N.J. Eq. 393, 399-401, 35 A.2d 880 (E. & A. 1944). It has adhered to a long tradition of judicial determination of legal issues such as liability for negligence in civil lawsuits. Estate of Desir ex. rel. Estiverne v. Vertus, 214 N.J. 303, 327-29, 69 A.3d 1247 (2013); J.S. v. R.T.H., 155 N.J. 330, 339, 714 A.2d 924 (1998); Kelly, supra, 96 N.J. at 552, 476 A.2d 1219. To foster stability and predictability, the common law relies heavily on prior judicial precedents. Luchejko v. City of Hoboken, 207 N.J. 191, 208, 23 A.3d 912 (2011).

The Legislature may overrule or modify judicial determination of a common law duty by enacting a pertinent statute. See, e.g., N.J.S.A. 2A:15-5.5 to -5.8, L. 1987, c. 404 (limiting Kelly, supra, 96 N.J. 538, 476 A.2d 1219, which imposed social host liability for negligence of an intoxicated guest); N.J.S.A. 2A:53A-7, L. 1959, c. 90 (overruling Dalton v. St. Luke's Catholic Church, 27 N.J. 22, 141 A.2d 273 (1958), and companion cases that abolished charitable immunity). Similarly, the courts can depart from common law precedents when circumstances change or the need to modify the law is shown. See, e.g., Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 432 A.2d 881 (1981) (overruling Yanhko v. Fane, 70 N.J. 528, 362 A.2d 1 (1976), and prior precedents on liability of commercial owner of property for hazardous condition of sidewalk); Smith, supra, 85 N.J. at 203-07, 426 A.2d 38 (holding that English common law rule of marital exemption did not apply to the New Jersey rape statute).

[6] We also held in Podias that the passengers had an independent affirmative duty to help the injured motorcyclist avoid further harm, if nothing else, by using their cell phones to call the police. Id. at 351-52, 926 A.2d 859.

[1] Studies have indicated that distracted driving—which includes using a cell phone or a navigation system, eating, and drinking coffee—is a factor in approximately one-fifth of motor vehicle accidents involving personal injury. The Centers for Disease Control and Prevention reported that 18% of all motor vehicle accidents in 2010 in which someone was injured involved distracted driving. Injury Prevention & Control: Motor Vehicle Safety, Centers for Disease Control and Prevention, www.cdc.gov/motorvehiclesafety/distracted_driving (last visited August 20, 2013). The National Highway Traffic Safety Administration also reported that driver distraction was a factor in 16% of all fatal crashes in 2008 and in 21% of all crashes involving personal injury. Traffic Safety Facts, National Highway Traffic Safety Administration, www. nhtsa.gov/Research/Crash + Avoidance/51fci. Distraction.print (follow "Traffic Safety Facts—Research Note: An examination of Driver Distraction as Recorded in NHTSA Databases, September 2009" hyperlink) (last visited August 20, 2013).

[2] Section 315 provides, in part:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct.

[Restatement (Second) of Torts § 315 (1965).]

4.2.2.4.2.2 Boyd v. Racine Currency Exchange, Inc. ("The Stick Up Case") 4.2.2.4.2.2 Boyd v. Racine Currency Exchange, Inc. ("The Stick Up Case")

Why does this court hold there is no duty to John Boyd?

(No. 45557.

PINEY BOYD, Appellee, v. RACINE CURRENCY EXCHANGE, INC., et al., Appellants.

Opinion filed Nov. 30, 1973.

Rehearing denied Jan. 29, 1974.

GOLDENHERSH, J., dissenting.

*96Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Joseph W. Griffin and D. Kendall Griffith, of counsel), for appellants.

Marshall I. Teichner Ltd. of Chicago (Edwin A. Strugala, of counsel), for appellee.

MR. JUSTICE RYAN

delivered the opinion of the court:

Plaintiff’s complaint was dismissed on motion of the defendants by the circuit court of Cook County for failure to state a cause of action. The appellate court reversed and remanded the cause to the circuit court. (8 Ill. App. 3d 140.) We granted leave to appeal.

This is a wrongful death action against Racine Currency Exchange and Blanche Murphy to recover damages for the death of plaintiff’s decedent during an attempted armed robbery. The facts surrounding that event, as alleged in the complaint and admitted by defendants’ motion, are: The plaintiff’s husband, John Boyd, was present in the Racine Currency Exchange on April 27, 1970, for the purpose of transacting business. While he was there, an armed robber entered and placed a pistol to his head and told Blanche Murphy, the teller, to give him the money or open the door or he would kill Boyd. Blanche Murphy was at that time located behind a bulletproof glass window and partition. She did not comply with the demand but instead fell to the floor. The robber then shot Boyd in the head and killed him.

Plaintiff alleges several acts of negligence by the Racine Currency Exchange and Blanche Murphy. Count I alleges that the defendants owed Boyd, a business invitee, the duty to exercise reasonable care for his safety and that they breached this duty when they refused to accede to the robber’s demands. Count I also alleges that defendants acted negligently in adopting a policy, knowledge of which was deliberately withheld from their customers, according *97to which their money was to be protected at all costs, including the safety and the lives of the customers.

In count II the plaintiff alleges that the Currency Exchange was negligent in failing to instruct its employees regarding the course of conduct which would be necessary under the circumstances of this case to prevent exposing customers to unreasonable risks of harm. Count II further alleges that the Currency Exchange was negligent in employing a person who was incompetent to fulfill the responsibilities of her position. Negligence is also alleged in the failure to furnish guidelines of how to act in case of armed robbery, and alternatively that it was negligent in failing to disclose to its customers its policy of preserving its monies at all costs.

It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. (Hamlin’s Wizard Oil Co. v. United States Express Co., 265 Ill. 156.) The plaintiff contends that a business proprietor has a duty to his invitees to honor criminal demands when failure to do so would subject the invitees to an unreasonable risk. It is claimed that this duty arises from the relationship between a landowner and a business invitee.

It is the general rule in Illinois and other jurisdictions that a person has no duty to anticipate the criminal acts of third parties. (Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 33.) An exception to this rule exists, however, when criminal acts should reasonably have been foreseen. (Neering v. Illinois Central R.R. Co., 383 Ill. 366.) Neering, and many of the other cases cited by the parties, involved the question of whether facts existed which should have alerted the defendant to a risk of harm to his invitees by' criminals. (See O’Brien v. Colonial Village, Inc., 119 Ill. App. 2d 105; Stelloh v. Cottage 83, 52 Ill. App. 2d 168; Altepeter v. Virgil State Bank, 345 Ill. App. 585; Nigido v. First National Bank, 264 Md. 702, 288 A.2d 127.) These cases are of little help here since our *98case presents a question of whether the defendant who is faced with an imminent criminal demand incurs liability by resisting, not whether he is negligent in failing to take precautions against a possible future crime.

Also of little assistance is Sinn v. Farmers Deposit Savings Bank, 300 Pa. 85, 150 A. 163. In that case recovery for the plaintiff, who was injured when a bank robber detonated dynamite within the bank, was upheld. The plaintiff alleged that had the bank warned him that a bank robbery was in progress, as they had the opportunity to do, he could have escaped unharmed. The plaintiff’s intestate in our case, however, was obviously on notice that a robbery was in progress, and plaintiff does not predicate her claim on the absence of warning.

The Restatement of Torts does not consider the specific issue before us. The Restatement does set forth the principle that a person defending himself or his property may be liable for harm to third persons if his acts create an unreasonable risk of harm to such persons. (Restatement (Second) of Torts, secs. 75 and 83.) However, these sections refer to situations in which the harm is caused directly by a person resisting, not by the criminal, such as where a shot fired at a criminal hits a third person.

We are aware of only two cases which have discussed issues similar to the one with which we are faced here — whether a person injured during the resistance to a crime is entitled to recover from the person who offered the resistance. In Genovay v. Fox, 50 N.J. Super. 538, 143 A.2d 229, rev’d on other grounds, 29 N.J. 436, 149 A.2d 212, a plaintiff who was shot and wounded during the robbery of a bowling alley bar claimed that the proprietor was liable because instead of complying with the criminal demand he stalled the robber and induced resistance by those patrons present. The plaintiff was shot when several patrons attempted to disarm the bandit. The court there balanced the interest of the proprietor in resisting the robbery against the interest of the patrons in not being *99exposed to bodily harm and held that the complaint stated a cause of action. The court stated: “The value of human life and of the interest of the individual in freedom from serious bodily injury weigh sufficiently heavily in the judicial scales to preclude a determination as a matter of law that they may be disregarded simply because the defendant’s activity serves to frustrate the successful accomplishment of a felonious act and to save his property from loss.” (50 N.J. Super, at 558, 143 A.2d at 239-40.) The court held that under the circumstances it was for the jury to determine whether defendant’s conduct was reasonable.

In Noll v. Marian, 347 Pa. 213, 32 A.2d 18, the court held that no cause of action existed. The plaintiff was present in a bank when an armed robber entered and announced “It’s a holdup. Nobody should move.” The bank teller, instead of obeying this order, dropped down out of sight. The gunman then opened fire and wounded the plaintiff. The court held that even though the plaintiff might not have been injured if the teller had stood still, the teller did not act negligently in attempting to save himself and his employer’s property.

In Lance v. Senior, 36 Ill.2d 516, this court noted that foreseeability alone does not result in the imposition of a duty. “The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing the burden upon the defendant, must also be taken into account.” 36 Ill.2d at 518.

In the present case an analysis of those factors leads to the conclusion that no duty to accede to criminal demands should be imposed. The presence of guards and protective devices do not prevent armed robberies. The presence of armed guards would not have prevented the criminal in this case from either seizing the deceased and using him as a hostage or putting the gun to his head. Apparently nothing would have prevented the injury to the decedent except a complete acquiescence in the robber’s demand, *100and whether acquiescence would have spared the decedent is, at best, speculative. We must also note that the demand of the criminal in this case was to give him the money or open the door. A compliance with this alternate demand would have, in turn, exposed the defendant Murphy to danger of bodily harm.

If a duty is imposed on the Currency Exchange to comply with such a demand the same would only inure to the benefit of the criminal without affording the desired degree of assurance that compliance with the demand will reduce the risk to the invitee. In fact, the consequence of such a holding may well be to encourage the use of hostages for such purposes, thereby generally increasing the risk to invitees upon business premises. If a duty to comply exists, the occupier of the premises would have little choice in determining whether to comply with the criminal demand and surrender the money or to refuse the demand and be held liable in a civil action for damages brought by or on behalf of the hostage. The existence of this dilemma and knowledge of it by those who are disposed to commit such crimes will only grant to them additional leverage to enforce their criminal demands. The only persons who will clearly benefit from the imposition of such a duty are the criminals. In this particular case the result may appear to be harsh and unjust, but, for the protection of future business invitees, we cannot afford to extend to the criminal another weapon in his arsenal.

For these reasons we hold that the defendants did not owe to the invitee Boyd a duty to comply with the demand of the criminal.

Accordingly, the judgment of the appellate court will be reversed, and the judgment of the circuit court of Cook County will be affirmed. .

Appellate court reversed; circuit court affirmed.

*101MR. JUSTICE GOLDENHERSH,

dissenting:

I dissent. The majority opinion fails to take into account the principles of law clearly enunciated in Restatement (Second) of Torts, secs. 302B and 449, and on the basis of pure conjecture concludes that nothing that defendant’s employee could have done would have saved the deceased from death or injury. The majority’s polemic on the subject of the hazards which would be created by an application of established legal principles to this case finds little support in logic and none whatsoever in the legal authorities.

This case comes to us only on the pleadings and I agree with the appellate court that “Whether what defendants did or did not do proximately caused the injury that befell plaintiff’s decedent, whether Blanche Murphy had the time so she could, under the circumstances alleged, exercise the kind of judgment expected of a person of ordinary prudence, were questions of fact which, from all the evidence, must be decided by a trier of the facts, judge or jury.” I would affirm the judgment of the appellate court.

4.2.2.5 Primary Assumption of the Risk 4.2.2.5 Primary Assumption of the Risk

4.2.2.5.1 Knight v. Jewett ("The Touch Football Case") 4.2.2.5.1 Knight v. Jewett ("The Touch Football Case")

Why was summary judgment for the defendant affirmed? How does this court think about the duty of someone engaged in an activity, like a sport, that has inherent risks as a part of what makes it worthwhile (e.g., fun)?

3 Cal.4th 296 (1992)834 P.2d 69611 Cal. Rptr.2d 2

KENDRA KNIGHT, Plaintiff and Appellant,
v.
MICHAEL JEWETT, Defendant and Respondent.

Docket No. S019021.

Supreme Court of California.

August 24, 1992.

299 *299 COUNSEL

Steven H. Wilhelm for Plaintiff and Appellant.

Daley & Heft, Sarah H. Mason, Dennis W. Daley, Joseph M. Hnylka and Patricia A. Shaffer for Defendant and Respondent.

OPINION

GEORGE, J.

In this case, and in the companion case of Ford v. Gouin, post, page 339 [11 Cal. Rptr.2d 30, 834 P.2d 724], we face the question of the 300 *300 proper application of the "assumption of risk" doctrine in light of this court's adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393]. Although the Li decision itself addressed this issue, subsequent Court of Appeal decisions have differed in their interpretation of Li's discussion of this point. We granted review to resolve the conflict among the Courts of Appeal.

I

We begin with a summary of the facts of this case, as set forth in the declarations and deposition transcripts submitted in support of and in opposition to defendant's motion for summary judgment.

On January 25, 1987, the day of the 1987 Super Bowl football game, plaintiff Kendra Knight and defendant Michael Jewett, together with a number of other social acquaintances, attended a Super Bowl party at the home of a mutual friend. During half time of the Super Bowl, several guests decided to play an informal game of touch football on an adjoining dirt lot, using a "peewee" football. Each team had four or five players and included both women and men; plaintiff and defendant were on opposing teams. No rules were explicitly discussed before the game.

Five to ten minutes into the game, defendant ran into plaintiff during a play. According to plaintiff, at that point she told defendant "not to play so rough or I was going to have to stop playing." Her declaration stated that "[defendant] seemed to acknowledge my statement and left me with the impression that he would play less rough prospectively." In his deposition, defendant recalled that plaintiff had asked him to "be careful," but did not remember plaintiff saying that she would stop playing.

On the very next play, plaintiff sustained the injuries that gave rise to the present lawsuit. As defendant recalled the incident, his team was on defense on that play, and he jumped up in an attempt to intercept a pass. He touched the ball but did not catch it, and in coming down he collided with plaintiff, knocking her over. When he landed, he stepped backward onto plaintiff's right hand, injuring her hand and little finger.

Both plaintiff and Andrea Starr, another participant in the game who was on the same team as plaintiff, recalled the incident differently from defendant. According to their declarations, at the time plaintiff was injured, Starr already had caught the pass. Defendant was running toward Starr, when he ran into plaintiff from behind, knocked her down, and stepped on her hand. Starr also stated that, after knocking plaintiff down, defendant continued 301 *301 running until he tagged Starr, "which tag was hard enough to cause me to lose my balance, resulting in a twisting or spraining of my ankle."

The game ended with plaintiff's injury, and plaintiff sought treatment shortly thereafter. After three operations failed to restore the movement in her little finger or to relieve the ongoing pain of the injury, plaintiff's finger was amputated. Plaintiff then instituted the present proceeding, seeking damages from defendant on theories of negligence and assault and battery.

After filing an answer, defendant moved for summary judgment. Relying on the Court of Appeal decision in Ordway v. Superior Court (1988) 198 Cal. App.3d 98 [243 Cal. Rptr. 536], defendant maintained that "reasonable implied assumption of risk" continues to operate as a complete defense after Li v. Yellow Cab Co., supra, 13 Cal.3d 804 (hereafter Li), and that plaintiff's action was barred under that doctrine. In this regard, defendant asserted that "[b]y participating in [the touch football game that resulted in her injury], plaintiff ... impliedly agreed to reduce the duty of care owed to her by defendant ... to only a duty to avoid reckless or intentionally harmful conduct," and that the undisputed facts established both that he did not intend to injure plaintiff and that the acts of defendant which resulted in plaintiff's injury were not reckless. In support of his motion, defendant submitted his own declaration setting forth his version of the incident, as summarized above, and specifically stating that he did not intend to step on plaintiff's hand or to injure her. Defendant also attached a copy of plaintiff's deposition in which plaintiff acknowledged that she frequently watched professional football on television and thus was generally familiar with the risks associated with the sport of football, and in which she conceded that she had no reason to believe defendant had any intention of stepping on her hand or injuring her.

In opposing the summary judgment motion, plaintiff first noted that, in contrast to the Ordway decision, the Court of Appeal decision in Segoviano v. Housing Authority (1983) 143 Cal. App.3d 162 [191 Cal. Rptr. 578] specifically held that the doctrine of "reasonable implied assumption of risk" had been eliminated by the adoption of comparative fault principles, and thus under Segoviano the basic premise of defendant's summary judgment motion was untenable and plaintiff was entitled to have the lawsuit proceed under comparative fault principles.

Furthermore, plaintiff maintained that even were the trial court inclined to follow the Ordway decision, there were numerous disputed material facts that precluded the granting of summary judgment in favor of defendant. First, plaintiff noted there was a clear dispute between defendant's and 302 *302 plaintiff's recollection of the specific facts of the play in which plaintiff was injured, and, in particular, of the details of defendant's conduct that caused plaintiff's injury. She claimed that under the facts as described by plaintiff and Starr, defendant's conduct was at least reckless.

Second, plaintiff vigorously disputed defendant's claim that, by participating in the game in question, she impliedly had agreed to reduce the duty of care, owed to her by defendant, to only a duty to avoid reckless or intentionally harmful conduct. Plaintiff maintained in her declaration that in view of the casual, social setting, the circumstance that women and men were joint participants in the game, and the rough dirt surface on which the game was played, she anticipated from the outset that it was the kind of "mock" football game in which there would be no forceful pushing or hard hitting or shoving. Plaintiff also asserted that the declarations and depositions of other players in the game, included in her opposition papers, demonstrated that the other participants, including defendant, shared her expectations and assumptions that the game was to be a "mellow" one and not a serious, competitive athletic event.^[1] Plaintiff claimed that there had been no injuries during touch football games in which she had participated on previous occasions, and that in view of the circumstances under which the game was played, "[t]he only type of injury which I reasonably anticipated would have been something in the nature of a bruise or bump."

In addition, in further support of her claim that there was at least a factual dispute as to whether she impliedly had agreed to assume the risk of injury from the type of rough play defendant assertedly engaged in, plaintiff relied on the portion of her declaration in which she stated that (1) she specifically had told defendant, immediately prior to the play in question, that defendant was playing too rough and that she would not continue to play in the game if he was going to continue such conduct, and (2) defendant had given plaintiff the impression he would refrain from such conduct. Plaintiff maintained that her statement during the game established that a disputed factual issue existed as to whether she voluntarily had chosen to assume the risks of the type of conduct allegedly engaged in by defendant.

303 *303 In his reply to plaintiff's opposition, defendant acknowledged there were some factual details — "who ran where, when and how" — that were in dispute. He contended, however, that the material facts were not in dispute, stating those facts were "that plaintiff was injured in the context of playing touch football."

After considering the parties' submissions, the trial court granted defendant's motion for summary judgment. On appeal, the Court of Appeal, recognizing the existing conflict in appellate court decisions with regard to the so-called "reasonable implied assumption of risk" doctrine, concluded that Ordway v. Superior Court, supra, 198 Cal. App.3d 98, rather than Segoviano v. Housing Authority, supra, 143 Cal. App.3d 162, should be followed, and further concluded that under the Ordway decision there were no disputed material facts to be determined. The Court of Appeal, holding that the trial court properly had granted summary judgment in favor of defendant, affirmed the judgment.

As noted, we granted review to resolve the conflict among Court of Appeal decisions as to the proper application of the assumption of risk doctrine in light of the adoption of comparative fault principles in Li, supra, 13 Cal.3d 804.

II

As every leading tort treatise has explained, the assumption of risk doctrine long has caused confusion both in definition and application, because the phrase "assumption of risk" traditionally has been used in a number of very different factual settings involving analytically distinct legal concepts. (See, e.g., Prosser & Keeton on Torts (5th ed. 1984) § 68, pp. 480-481; 4 Harper et al., The Law of Torts (2d ed. 1986) § 21.0, pp. 187-189; Schwartz, Comparative Negligence (2d ed. 1986) § 9.1, p. 154; 3 Speiser et al., The American Law of Torts (1986) §§ 12:46-12:47, pp. 636-640.) Indeed, almost a half-century ago, Justice Frankfurter described the term "assumption of risk" as a classic example of a felicitous phrase, "undiscriminatingly used to express different and sometimes contradictory ideas," and whose uncritical use "bedevils the law." (Tiller v. Atlantic Coast Line R. Co. (1943) 318 U.S. 54, 68 [87 L.Ed. 610, 618, 63 S.Ct. 444, 143 A.L.R. 967] (conc. opn. of Frankfurter, J.).)

In some settings — for example, most cases involving sports-related injuries — past assumption of risk decisions largely have been concerned with defining the contours of the legal duty that a given class of defendants — for example, owners of baseball stadiums or ice hockey rinks — owed to an 304 *304 injured plaintiff. (See, e.g., Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 729 [46 P.2d 144] [baseball stadium owner]; Shurman v. Fresno Ice Rink (1949) 91 Cal. App.2d 469, 474-477 [205 P.2d 77] [hockey rink owner].) In other settings, the assumption of risk terminology historically was applied to situations in which it was clear that the defendant had breached a legal duty of care to the plaintiff, and the inquiry focused on whether the plaintiff knowingly and voluntarily had chosen to encounter the specific risk of harm posed by the defendant's breach of duty. (See, e.g., Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 271 [32 Cal. Rptr. 193, 383 P.2d 777] [plaintiff hit in eye by flying piece of metal in area adjacent to drilling]; Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 161-162 [265 P.2d 904] [plaintiff injured on wet sidewalk on store premises].)

Prior to the adoption of comparative fault principles of liability, there often was no need to distinguish between the different categories of assumption of risk cases, because if a case fell into either category, the plaintiff's recovery was totally barred. With the adoption of comparative fault, however, it became essential to differentiate between the distinct categories of cases that traditionally had been lumped together under the rubric of assumption of risk. This court's seminal comparative fault decision in Li, supra, 13 Cal.3d 804, explicitly recognized the need for such differentiation, and attempted to explain which category of assumption of risk cases should be merged into the comparative fault system and which category should not. Accordingly, in considering the current viability of the assumption of risk doctrine in California, our analysis necessarily begins with the Li decision.

In Li, our court undertook a basic reexamination of the common law doctrine of contributory negligence. As Li noted, contributory negligence generally has been defined as "`conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm.'" (Li, supra, 13 Cal.3d at p. 809, quoting Rest.2d Torts, § 463.) Prior to Li, the common law rule was that "`[e]xcept where the defendant has the last clear chance, the plaintiff's contributory negligence bars recovery against a defendant whose negligent conduct would otherwise make him liable to the plaintiff for the harm sustained by him.'" (Li, supra, at pp. 809-810, italics added, quoting Rest.2d Torts, § 467.)

In Li, supra, 13 Cal.3d 804, we observed that "[i]t is unnecessary for us to catalogue the enormous amount of critical comment that has been directed over the years against the `all-or-nothing' approach of the doctrine of contributory negligence. The essence of that criticism has been constant and 305 *305 clear: the doctrine is inequitable in its operation because it fails to distribute responsibility in proportion to fault.... The basic objection to the doctrine — grounded in the primal concept that in a system in which liability is based on fault, the extent of fault should govern the extent of liability — remains irresistible to reason and all intelligent notions of fairness." (Id. at pp. 810-811, italics added.) After taking additional note of the untoward practical consequences of the doctrine in the litigation of cases and the increasing rejection of the doctrine in other jurisdictions, the Li court concluded that "[w]e are likewise persuaded that logic, practical experience, and fundamental justice counsel against the retention of the doctrine rendering contributory negligence a complete bar to recovery — and that it should be replaced in this state by a system under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault." (Id. at pp. 812-813.)

After determining that the "all-or-nothing" contributory negligence doctrine should be replaced by a system of comparative negligence, the Li court went on to undertake a rather extensive discussion of the effect that the adoption of comparative negligence would have on a number of related tort doctrines, including the doctrines of last clear chance and assumption of risk. (Li, supra, 13 Cal.3d at pp. 823-826.)

Under the last clear chance doctrine, a defendant was rendered totally liable for an injury, even though the plaintiff's contributory negligence had played a role in the accident, when the defendant had the "last clear chance" to avoid the accident. With regard to that doctrine, the Li decision, supra, 13 Cal.3d 804, observed: "Although several states which apply comparative negligence concepts retain the last clear chance doctrine [citation], the better reasoned position seems to be that when true comparative negligence is adopted, the need for last clear chance as a palliative of the hardships of the `all-or-nothing' rule disappears and its retention results only in a windfall to the plaintiff in direct contravention of the principle of liability in proportion to fault. [Citations.]" (Id. at p. 824.) Accordingly, the court concluded that the doctrine should be "subsumed under the general process of assessing liability in proportion to fault." (Id. at p. 826.)

(1a) With respect to the effect of the adoption of comparative negligence on the assumption of risk doctrine — the issue before us today — the Li decision, supra, 13 Cal.3d 804, stated as follows: "As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. `To simplify greatly, it has been observed ... that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a 306 *306 specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence.... Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care.' (Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 245-246 [53 Cal. Rptr. 545, 418 P.2d 153]; see also Fonseca v. County of Orange (1972) 28 Cal. App.3d 361, 368-369 [104 Cal. Rptr. 566]; see generally, 4 Witkin, Summary of Cal. Law [(8th ed. 1974)], Torts, § 723, pp. 3013-3014; 2 Harper & James, The Law of Torts [(1st ed. 1956)] § 21.1, pp. 1162-1168; cf. Prosser, Torts [(4th ed. 1971)] § 68, pp. 439-441.) We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. (See generally, Schwartz, [Comparative Negligence (1st ed. 1974)] ch. 9, pp. 153-175.)" (Li. supra, 13 Cal.3d at pp. 824-825, original italics.)

As this passage indicates, the Li decision, supra, 13 Cal.3d 804, clearly contemplated that the assumption of risk doctrine was to be partially merged or subsumed into the comparative negligence scheme. Subsequent Court of Appeal decisions have disagreed, however, in interpreting Li, as to what category of assumption of risk cases would be merged into the comparative negligence scheme.

A number of appellate decisions, focusing on the language in Li indicating that assumption of risk is in reality a form of contributory negligence "where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence" (13 Cal.3d at p. 824), have concluded that Li properly should be interpreted as drawing a distinction between those assumption of risk cases in which a plaintiff "unreasonably" encounters a known risk imposed by a defendant's negligence and those assumption of risk cases in which a plaintiff "reasonably" encounters a known risk imposed by a defendant's negligence. (See, e.g., Ordway v. Superior Court, supra, 198 Cal. App.3d 98, 103-105.) These decisions interpret Li as subsuming into the comparative fault scheme those cases in which the plaintiff acts unreasonably in encountering a specific known risk, but retaining the assumption of risk doctrine as a complete bar to recovery in those cases in which the plaintiff acts reasonably in encountering such a risk. Although aware of the apparent anomaly of a rule under which a plaintiff who acts reasonably is completely barred from recovery while a plaintiff who acts unreasonably 307 *307 only has his or her recovery reduced, these decisions nonetheless have concluded that this distinction and consequence were intended by the Li court.^[2]

In our view, these decisions — regardless whether they reached the correct result on the facts at issue — have misinterpreted Li by suggesting that our decision contemplated less favorable legal treatment for a plaintiff who reasonably encounters a known risk than for a plaintiff who unreasonably encounters such a risk. Although the relevant passage in Li indicates that the assumption of risk doctrine would be merged into the comparative fault scheme in instances in which a plaintiff "`unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence'" (13 Cal.3d at p. 824), nothing in this passage suggests that the assumption of risk doctrine should survive as a total bar to the plaintiff's recovery whenever a plaintiff acts reasonably in encountering such a risk. Instead, this portion of our opinion expressly contrasts the category of assumption of risk cases which "`involve contributory negligence'" (and which therefore should be merged into the comparative fault scheme) with those assumption of risk 308 *308 cases which involve "`a reduction of defendant's duty of care.'" (Id. at p. 825.)

Indeed, particularly when the relevant passage in Li, supra, 13 Cal.3d at pages 824-825, is read as a whole and in conjunction with the authorities it cites, we believe it becomes clear that the distinction in assumption of risk cases to which the Li court referred in this passage was not a distinction between instances in which a plaintiff unreasonably encounters a known risk imposed by a defendant's negligence and instances in which a plaintiff reasonably encounters such a risk. Rather, the distinction to which the Li court referred was between (1) those instances in which the assumption of risk doctrine embodies a legal conclusion that there is "no duty" on the part of the defendant to protect the plaintiff from a particular risk — the category of assumption of risk that the legal commentators generally refer to as "primary assumption of risk" — and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty — what most commentators have termed "secondary assumption of risk."^[3] Properly interpreted, the relevant passage in Li provides that the category of assumption of risk cases that is not merged into the comparative negligence system and in which the plaintiff's recovery continues to be completely barred involves those cases in which the defendant's conduct did not breach a legal duty of care to the plaintiff, i.e., "primary assumption of risk" cases, whereas cases involving "secondary assumption of risk" properly are merged into the comprehensive comparative fault system adopted in Li.^[4]

309 *309 Although the difference between the "primary assumption of risk"/"secondary assumption of risk" nomenclature and the "reasonable implied assumption of risk"/"unreasonable implied assumption of risk" terminology embraced in many of the recent Court of Appeal decisions may appear at first blush to be only semantic, the significance extends beyond mere rhetoric. First, in "primary assumption of risk" cases — where the defendant owes no duty to protect the plaintiff from a particular risk of harm — a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff's conduct in undertaking the activity was reasonable or unreasonable. Second, in "secondary assumption of risk" cases — involving instances in which the defendant has breached the duty of care owed to the plaintiff — the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff's conduct in encountering the risk of such an injury was reasonable rather than unreasonable. Third and finally, the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport. (2)(See fn. 5.) For these reasons, use of the "reasonable implied assumption of risk"/"unreasonable implied assumption of risk" terminology, as a means of differentiating between the cases in which a plaintiff is barred from bringing an action and those in which he or she is not barred, is more misleading than helpful.^[5]

310 *310 (1b) Our reading of Li, supra, 13 Cal.3d 804, insofar as it draws a distinction between assumption of risk cases in which the defendant has not breached any legal duty to the plaintiff and those in which the defendant has breached a legal duty, is supported not only by the language of Li itself and the authorities it cites, but also, and perhaps most significantly, by the fundamental principle that led the Li court to replace the all-or-nothing contributory negligence defense with a comparative fault scheme. In "primary assumption of risk" cases, it is consistent with comparative fault principles totally to bar a plaintiff from pursuing a cause of action, because when the defendant has not breached a legal duty of care to the plaintiff, the defendant has not committed any conduct which would warrant the imposition of any liability whatsoever, and thus there is no occasion at all for invoking comparative fault principles. (See Prosser & Keeton on Torts, supra, § 68, at pp. 496-497.) By contrast, in the "secondary assumption of risk" context, the defendant has breached a duty of care owed to the plaintiff. When a risk of harm is created or imposed by a defendant's breach of duty, and a plaintiff who chose to encounter the risk is injured, comparative fault principles preclude automatically placing all of the loss on the plaintiff, because the injury in such a case may have been caused by the combined effect of the defendant's and the plaintiff's culpable conduct. To retain assumption of risk as a complete defense in such a case would fly in the face of Li's basic holding that when both parties are partially at fault for an injury, a rule which places all of the loss on one of the parties is inherently inequitable. (See id. at pp. 497-498.)

Thus, just as the court in Li reasoned it would be improper to retain the last clear chance doctrine as a means of imposing all liability on a defendant in cases in which the defendant is aware of the risk of harm created by the plaintiff's negligence but fails to take the "last clear chance" to avoid the injury (Li, supra, 13 Cal.3d at p. 824), we believe the Li court similarly recognized that, in the assumption of risk context, it would be improper to 311 *311 impose all responsibility on a plaintiff who is aware of a risk of harm created by the defendant's breach of duty but fails to avert the harm. In both instances, comparative fault principles call for a sharing of the burden of liability.

The dissenting opinion suggests, however, that, even when a defendant has breached its duty of care to the plaintiff, a plaintiff who reasonably has chosen to encounter a known risk of harm imposed by such a breach may be totally precluded from recovering any damages, without doing violence to comparative fault principles, on the theory that the plaintiff, by proceeding in the face of a known risk, has "impliedly consented" to any harm. (See dis. opn. by Kennard, J., post, pp. 331-333.) For a number of reasons, we conclude this contention does not withstand analysis.

First, the argument that a plaintiff who proceeds to encounter a known risk has "impliedly consented" to absolve a negligent defendant of liability for any ensuing harm logically would apply as much to a plaintiff who unreasonably has chosen to encounter a known risk, as to a plaintiff who reasonably has chosen to encounter such a risk. As we have seen, however, Li explicitly held that a plaintiff who "`unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence'" (Li, supra, 13 Cal.3d at p. 824) is not completely barred from recovery; instead, the recovery of such a plaintiff simply is reduced under comparative fault principles. Thus, the dissenting opinion's implied consent argument is irreconcilable with Li itself.

Second, the implied consent rationale rests on a legal fiction that is untenable, at least as applied to conduct that represents a breach of the defendant's duty of care to the plaintiff. It may be accurate to suggest that an individual who voluntarily engages in a potentially dangerous activity or sport "consents to" or "agrees to assume" the risks inherent in the activity or sport itself, such as the risks posed to a snow skier by moguls on a ski slope or the risks posed to a water skier by wind-whipped waves on a lake. But it is thoroughly unrealistic to suggest that, by engaging in a potentially dangerous activity or sport, an individual consents to (or agrees to excuse) a breach of duty by others that increases the risks inevitably posed by the activity or sport itself, even where the participating individual is aware of the possibility that such misconduct may occur.

A familiar example may help demonstrate this point. Although every driver of an automobile is aware that driving is a potentially hazardous activity and that inherent in the act of driving is the risk that he or she will be injured by the negligent driving of another, a person who voluntarily 312 *312 chooses to drive does not thereby "impliedly consent" to being injured by the negligence of another, nor has such a person "impliedly excused" others from performing their duty to use due care for the driver's safety. Instead, the driver reasonably expects that if he or she is injured by another's negligence, i.e., by the breach of the other person's duty to use due care, the driver will be entitled to compensation for his or her injuries. Similarly, although a patient who undergoes elective surgery is aware that inherent in such an operation is the risk of injury in the event the surgeon is negligent, the patient, by voluntarily encountering such a risk, does not "impliedly consent" to negligently inflicted injury or "impliedly agree" to excuse the surgeon from a normal duty of care, but rather justifiably expects that the surgeon will be liable in the event of medical malpractice.

Thus, there is no merit to the dissenting opinion's general claim that simply because a person is aware an activity involves a risk of harm that may arise from another's negligence and voluntarily proceeds to participate in that activity despite such knowledge, that person should be barred from obtaining any recovery on the theory that he or she impliedly consented to the risk of harm. As we shall discuss in part III, legal liability for an injury which occurs during a sporting event is significantly affected by the assumption of risk doctrine, but only because the doctrine has been utilized in framing the duty of care owed by a defendant in the context of a sporting event, and not because the plaintiff in such a case has, in any realistic sense of the term, "consented" to relieve the defendant of liability.

Third, the dissenting opinion's claim that the category of cases in which the assumption of risk doctrine operates to bar a plaintiff's cause of action after Li properly should be gauged on the basis of an implied consent analysis, rather than on the duty analysis we have described above, is, in our view, untenable for another reason. In support of its implied consent theory, the dissenting opinion relies on a number of pre-Li cases, which arose in the "secondary assumption of risk" context, and which held that, in such a context, application of the assumption of risk doctrine was dependent on proof that the particular plaintiff subjectively knew, rather than simply should have known, of both the existence and magnitude of the specific risk of harm imposed by the defendant's negligence. (See Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 271-275; Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161-162.) Consequently, as the dissenting opinion acknowledges, were its implied consent theory to govern application of the assumption of risk doctrine in the sports setting, the basic liability of a defendant who engages in a sport would depend on variable factors that the defendant frequently would have no way of ascertaining (for example, the particular plaintiff's subjective knowledge and expectations), rather than on 313 *313 the nature of the sport itself. As a result, there would be drastic disparities in the manner in which the law would treat defendants who engaged in precisely the same conduct, based on the often unknown, subjective expectations of the particular plaintiff who happened to be injured by the defendant's conduct.

Such an approach not only would be inconsistent with the principles of fairness underlying the Li decision, but also would be inimical to the fair and efficient administration of justice. If the application of the assumption of risk doctrine in a sports setting turned on the particular plaintiff's subjective knowledge and awareness, summary judgment rarely would be available in such cases, for, as the present case reveals, it frequently will be easy to raise factual questions with regard to a particular plaintiff's subjective expectations as to the existence and magnitude of the risks the plaintiff voluntarily chose to encounter. (3) By contrast, the question of the existence and scope of a defendant's duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury. (See, e.g., 6 Witkin, Summary of Cal. Law, supra, Torts, § 748, pp. 83-86 and cases cited.) Thus, the question of assumption of risk is much more amenable to resolution by summary judgment under a duty analysis than under the dissenting opinion's suggested implied consent approach.

(1c) An amicus curiae in the companion case has questioned, on a separate ground, the duty approach to the post-Li assumption of risk doctrine, suggesting that if a plaintiff's action may go forward whenever a defendant's breach of duty has played some role, however minor, in a plaintiff's injury, a plaintiff who voluntarily engages in a highly dangerous sport — for example, skydiving or mountain climbing — will escape any responsibility for the injury so long as a jury finds that the plaintiff was not "unreasonable" in engaging in the sport. This argument rests on the premise that, under comparative fault principles, a jury may assign some portion of the responsibility for an injury to a plaintiff only if the jury finds that the plaintiff acted unreasonably, but not if the jury finds that the plaintiff knowingly and voluntarily, but reasonably, chose to engage in a dangerous activity. Amicus curiae contends that such a rule frequently would permit voluntary risk takers to avoid all responsibility for their own actions, and would impose an improper and undue burden on other participants.

Although we agree with the general thesis of amicus curiae's argument that persons generally should bear personal responsibility for their own actions, the suggestion that a duty approach to the doctrine of assumption of risk is inconsistent with this thesis rests on a mistaken premise. (4) Past 314 *314 California cases have made it clear that the "comparative fault" doctrine is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury (whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an "equitable apportionment or allocation of loss." (See Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 734-742 [144 Cal. Rptr. 380, 575 P.2d 1162]; Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 328-332 [146 Cal. Rptr. 550, 579 P.2d 441]; Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 804, fn. 7 [251 Cal. Rptr. 202, 760 P.2d 399].)

(1d) Accordingly, contrary to amicus curiae's assumption, we believe that under California's comparative fault doctrine, a jury in a "secondary assumption of risk" case would be entitled to take into consideration a plaintiff's voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff's decision to encounter the risk should be characterized as unreasonable, in determining whether the plaintiff properly should bear some share of responsibility for the injuries he or she suffered. (See, e.g., Kirk v. Washington State University (1987) 109 Wn.2d 448 [746 P.2d 285, 290-291]. See generally Schwartz, Comparative Negligence, supra, § 9.5, p. 180; Diamond, Assumption of Risk After Comparative Negligence: Integrating Contract Theory into Tort Doctrine (1991) 52 Ohio St. L.J. 717, 748-749.) Thus, in a case in which an injury has been caused by both a defendant's breach of a legal duty to the plaintiff and the plaintiff's voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.

It may be helpful at this point to summarize our general conclusions as to the current state of the doctrine of assumption of risk in light of the adoption of comparative fault principles in Li, supra, 13 Cal.3d 804, general conclusions that reflect the view of a majority of the justices of the court (i.e., the three justices who have signed this opinion and Justice Mosk (see conc. and dis. opn. by Mosk, J., post, p. 321)).^[6] In cases involving "primary assumption of risk" — where, by virtue of the nature of the activity and the parties' 315 *315 relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury — the doctrine continues to operate as a complete bar to the plaintiff's recovery. In cases involving "secondary assumption of risk" — where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty — the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.

Accordingly, in determining the propriety of the trial court's grant of summary judgment in favor of the defendant in this case, our inquiry does not turn on the reasonableness or unreasonableness of plaintiff's conduct in choosing to subject herself to the risks of touch football or in continuing to participate in the game after she became aware of defendant's allegedly rough play. Nor do we focus upon whether there is a factual dispute with regard to whether plaintiff subjectively knew of, and voluntarily chose to encounter, the risk of defendant's conduct, or impliedly consented to relieve or excuse defendant from any duty of care to her. Instead, our resolution of this issue turns on whether, in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant's conduct breached a legal duty of care to plaintiff. We now turn to that question.

III

As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. (See Civ. Code, § 1714.) (5) Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. (See, e.g., Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. (6a) Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. (See generally Annot. (1987) 55 A.L.R.4th 632.) In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.

(7a) Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well 316 *316 established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. (6b) Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort's negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant. (See generally Annot. (1979) 95 A.L.R.3d 203.)

(7b) In some situations, however, the careless conduct of others is treated as an "inherent risk" of a sport, thus barring recovery by the plaintiff. For example, numerous cases recognize that in a game of baseball, a player generally cannot recover if he or she is hit and injured by a carelessly thrown ball (see, e.g., Mann v. Nutrilite, Inc. (1955) 136 Cal. App.2d 729, 734-735 [289 P.2d 282]), and that in a game of basketball, recovery is not permitted for an injury caused by a carelessly extended elbow (see, e.g., Thomas v. Barlow (1927) 5 N.J. Misc. 764 [138 A. 208]). The divergent results of the foregoing cases lead naturally to the question how courts are to determine when careless conduct of another properly should be considered an "inherent risk" of the sport that (as a matter of law) is assumed by the injured participant.

Contrary to the implied consent approach to the doctrine of assumption of risk, discussed above, the duty approach provides an answer which does not depend on the particular plaintiff's subjective knowledge or appreciation of the potential risk. Even where the plaintiff, who falls while skiing over a mogul, is a total novice and lacks any knowledge of skiing whatsoever, the ski resort would not be liable for his or her injuries. (See Brown v. San Francisco Baseball Club (1950) 99 Cal. App.2d 484, 488-492 [222 P.2d 19] [baseball spectator's alleged ignorance of the game did not warrant imposing liability on stadium owner for injury caused by a carelessly thrown ball].) And, on the other hand, even where the plaintiff actually is aware that a particular ski resort on occasion has been negligent in maintaining its towropes, that knowledge would not preclude the skier from recovering if he or she were injured as a result of the resort's repetition of such deficient conduct. In the latter context, although the plaintiff may have acted with knowledge of the potential negligence, he or she did not consent to such negligent conduct or agree to excuse the resort from liability in the event of such negligence.

Rather than being dependent on the knowledge or consent of the particular plaintiff, resolution of the question of the defendant's liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to 317 *317 protect the plaintiff against a particular risk of harm. As already noted, the nature of a defendant's duty in the sports context depends heavily on the nature of the sport itself. Additionally, the scope of the legal duty owed by a defendant frequently will also depend on the defendant's role in, or relationship to, the sport.

The latter point is demonstrated by a review of one of the numerous cases involving an injury sustained by a spectator at a baseball game. In Ratcliff v. San Diego Baseball Club (1938) 27 Cal. App.2d 733 [81 P.2d 625], a baseball spectator was injured when, walking in the stands between home plate and first base during a game, she was hit by an accidentally thrown bat. She sued both the player who threw the bat and the baseball stadium owner. The jury returned a verdict in favor of the player, but found the stadium owner liable. On appeal, the Court of Appeal affirmed.

Had the Ratcliff court utilized an implied consent analysis, the court would have looked only to the knowledge of the particular plaintiff (the spectator) to determine whether the risk of being hit by an accidentally thrown bat was an inherent risk of the sport of baseball assumed by the plaintiff, and would have treated the plaintiff's action against both defendants similarly with regard to such risk. The Ratcliff court did not analyze the case in that manner, however. Instead, the court implicitly recognized that two different potential duties were at issue — (1) the duty of the ballplayer to play the game without carelessly throwing his bat, and (2) the duty of the stadium owner to provide a reasonably safe stadium with regard to the relatively common (but particularly dangerous) hazard of a thrown bat. Because each defendant's liability rested on a separate duty, there was no inconsistency in the jury verdict absolving the batter of liability but imposing liability on the stadium owner for its failure to provide the patron "protection from flying bats, at least in the area where the greatest danger exists and where such an occurrence is reasonably to be expected." (Ratcliff v. San Diego Baseball Club, supra, 27 Cal. App.2d at p. 736.)

Other cases also have analyzed in a similar fashion the duty of the owner of a ballpark or ski resort, in the process defining the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport. (See, e.g., Quinn v. Recreation Park Assn., supra, 3 Cal.2d 725, 728-729 [discussing separately the potential liability of a player and a baseball stadium owner for injury to a spectator]; Shurman v. Fresno Ice Rink, supra, 91 Cal. App.2d 469, 474-477 [discussing duty owed by owner of ice hockey rink to spectators].)

318 *318 Even a cursory review of the numerous sports injury cases reveals the diverse categories of defendants whose alleged misconduct may be at issue in such cases. Thus, for example, suits have been brought against owners of sports facilities such as baseball stadiums and ski resorts (see, e.g., Quinn v. Recreation Park Assn., supra, 3 Cal.2d 725; Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal. App.3d 111 [266 Cal. Rptr. 749]), against manufacturers and reconditioners of sporting equipment (see, e.g., Holdsworth v. Nash Mfg., Inc. (1987) 161 Mich. App. 139 [409 N.W.2d 764]; Gentile v. MacGregor Mfg. Co. (1985) 201 N.J. Super. 612 [493 A.2d 647]), against sports instructors and coaches (see, e.g., Scroggs v. Coast Community College Dist. (1987) 193 Cal. App.3d 1399 [239 Cal. Rptr. 916]; Morris v. Union High School Dist. A (1931) 160 Wash. 121 [294 P. 998]), and against coparticipants (see, e.g., Tavernier v. Maes (1966) 242 Cal. App.2d 532 [51 Cal. Rptr. 575]), alleging that such persons, either by affirmative misconduct or by a failure to act, caused or contributed to the plaintiff's injuries. These cases demonstrate that in the sports setting, as elsewhere, the nature of the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue in a given case.

In the present case, defendant was a participant in the touch football game in which plaintiff was engaged at the time of her injury, and thus the question before us involves the circumstances under which a participant in such a sport may be held liable for an injury sustained by another participant.

(8a) The overwhelming majority of the cases, both within and outside California, that have addressed the issue of coparticipant liability in such a sport, have concluded that it is improper to hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport — for example, for an injury resulting from a carelessly thrown ball or bat during a baseball game — and that liability properly may be imposed on a participant only when he or she intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport. (See, e.g., Gauvin v. Clark (1989) 404 Mass. 450 [537 N.E.2d 94, 96-97] and cases cited.)

In reaching the conclusion that a coparticipant's duty of care should be limited in this fashion, the cases have explained that, in the heat of an active sporting event like baseball or football, a participant's normal energetic conduct often includes accidentally careless behavior. The courts have concluded that vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct. The cases have recognized that, in such a sport, even when a participant's conduct violates a rule of the game and 319 *319 may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.

A sampling of the cases that have dealt with the question of the potential tort liability of such sports participants is instructive. In Tavernier v. Maes, supra, 242 Cal. App.2d 532, for example, the Court of Appeal upheld a verdict denying recovery for an injury sustained by the plaintiff second baseman as an unintended consequence of the defendant baserunner's hard slide into second base during a family picnic softball game. Similarly, in Gaspard v. Grain Dealers Mutual Insurance Company (La. Ct. App. 1961) 131 So.2d 831, the plaintiff baseball player was denied recovery when he was struck on the head by a bat which accidentally flew out of the hands of the defendant batter during a school game. (See also Gauvin v. Clark, supra, 404 Mass. 450 [537 N.E.2d 94, 96-97] [plaintiff hockey player injured when hit with hockey stick by opposing player; court held that defendant's liability should be determined by whether he acted "with reckless disregard of safety"]; Marchetti v. Kalish (1990) 53 Ohio.St.3d 95 [559 N.E.2d 699, 703] [child injured while playing "kick the can"; "we join the weight of authority ... and require that before a party may proceed with a cause of action involving injury resulting from recreational or sports activity, reckless or intentional conduct must exist"]; Kabella v. Bouschelle (1983) 100 N.M. 461 [672 P.2d 290, 294] [plaintiff injured in informal tackle football game; court held that "a cause of action for personal injuries between participants incurred during athletic competition must be predicated upon recklessness or intentional conduct, `not mere negligence'"]; Ross v. Clouser (Mo. 1982) 637 S.W.2d 11, 13-14 [plaintiff third baseman injured in collision with baserunner; court held that "a cause of action for personal injuries incurred during athletic competition must be predicated on recklessness, not mere negligence"]; Moe v. Steenberg (1966) 275 Minn. 448 [147 N.W.2d 587, 33 A.L.R.3d 311] [plaintiff ice skater denied recovery for injury incurred when another skater, who was skating backwards, accidentally tripped over her after she had fallen on the ice]; Thomas v. Barlow, supra, 5 N.J. Misc. 764 [138 A. 208] [recovery denied when appellate court concluded that plaintiff's injury, incurred during a basketball game, resulted from an accidental contact with a member of the opposing team].)

By contrast, in Griggas v. Clauson (1955) 6 Ill. App.2d 412 [128 N.E.2d 363], the court upheld liability imposed on the defendant basketball player who, during a game, wantonly assaulted a player on the opposing team, apparently out of frustration with the progress of the game. And, in Bourque v. Duplechin (La. Ct. App. 1976) 331 So.2d 40, the court affirmed a judgment 320 *320 imposing liability for an injury incurred during a baseball game when the defendant baserunner, in an ostensible attempt to break up a double play, ran into the plaintiff second baseman at full speed, without sliding, after the second baseman had thrown the ball to first base and was standing four to five feet away from second base toward the pitcher's mound; in upholding the judgment, the court stated that defendant "was under a duty to play softball in the ordinary fashion without unsportsmanlike conduct or wanton injury to his fellow players." (Id. at p. 42.) (See also Averill v. Luttrell (1957) 44 Tenn. App. 56 [311 S.W.2d 812] [defendant baseball catcher properly held liable when, deliberately and without warning, he hit a batter in the head with his fist]; Hackbart v. Cincinnati Bengals, Inc. (10th Cir.1979) 601 F.2d 516 [trial court erred in absolving defendant football player of liability when, acting out of anger and frustration, he struck a blow with his forearm to the back of the head of an opposing player, who was kneeling on the ground watching the end of a pass interception play]; Overall v. Kadella (1984) 138 Mich. App. 351 [361 N.W.2d 352] [hockey player permitted to recover when defendant player intentionally punched him in the face at the conclusion of the game].)

In our view, the reasoning of the foregoing cases is sound. Accordingly, we conclude that a participant in an active sport breaches a legal duty of care to other participants — i.e., engages in conduct that properly may subject him or her to financial liability — only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.^[7]

(9a) As applied to the present case, the foregoing legal principle clearly supports the trial court's entry of summary judgment in favor of defendant. The declarations filed in support of and in opposition to the summary judgment motion establish that defendant was, at most, careless or negligent in knocking over plaintiff, stepping on her hand, and injuring her finger. Although plaintiff maintains that defendant's rough play as described in her declaration and the declaration of Andrea Starr properly can be characterized as "reckless," the conduct alleged in those declarations is not even closely comparable to the kind of conduct — conduct so reckless as to be totally 321 *321 outside the range of the ordinary activity involved in the sport — that is a prerequisite to the imposition of legal liability upon a participant in such a sport.

Therefore, we conclude that defendant's conduct in the course of the touch football game did not breach any legal duty of care owed to plaintiff. Accordingly, this case falls within the primary assumption of risk doctrine, and thus the trial court properly granted summary judgment in favor of defendant. Because plaintiff's action is barred under the primary assumption of risk doctrine, comparative fault principles do not come into play.

The judgment of the Court of Appeal, upholding the summary judgment entered by the trial court, is affirmed.

Lucas, C.J., and Arabian, J., concurred.

MOSK, J., Concurring and Dissenting.

(1e), (8b), (9b) Because I agreed with the substance of the majority opinion in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393] (see id. at p. 830), I concur generally with Justice George's analysis as set forth in part II of the lead opinion. And like the lead opinion, I conclude that the liability of sports participants should be limited to those cases in which their misconduct falls outside the range of the ordinary activity involved in the sport. As part I of the lead opinion explains, the kind of overexuberant conduct that is alleged here was not of that nature. I therefore agree that defendant was entitled to summary judgment, for the reasons set forth in part III of the lead opinion.

But I would go farther than does the lead opinion. Though the opinion's interpretation of Li v. Yellow Cab Co. (supra, 13 Cal.3d 804) is reasonable, I believe the time has come to eliminate implied assumption of risk entirely. The all-or-nothing aspect of assumption of risk is as anachronistic as the all-or-nothing aspect of contributory negligence. As commentators have pointed out, the elements of assumption of risk "are accounted for already in the negligence prima facie case and existing comparative fault defense." (Wildman & Barker, Time to Abolish Implied Assumption of a Reasonable Risk in California (1991) 25 U.S.F.L.Rev. 647, 679.) Plaintiffs' behavior can be analyzed under comparative fault principles; no separate defense is needed. (See ibid.) Wildman and Barker explain cogently that numerous California cases invoke both a duty analysis — which I prefer — and an unnecessary implied assumption of risk analysis in deciding a defendant's liability. (See id. at p. 657 & fn. 58.) In the case before us, too, the invocation of assumption of risk is superfluous: far better to limit the 322 *322 analysis to concluding that a participant owes no duty to avoid conduct of the type ordinarily involved in the sport.

Were we to eliminate the doctrine of assumption of risk, we would put an end to the doctrinal confusion that now surrounds apportionment of fault in such cases. Assumption of risk now stands for so many different legal concepts that its utility has diminished. A great deal of the confusion surrounding the concept "stems from the fact that the term `assumption of risk' has several different meanings and is often applied without recognizing these different meanings." (Rini v. Oaklawn Jockey Club (8th Cir.1988) 861 F.2d 502, 504-505.) Courts vainly attempt to analyze conduct in such esoteric terms as primary assumption of risk, secondary assumption of risk, reasonable implied assumption of risk, unreasonable implied assumption of risk, etc. Since courts have difficulty in assessing facts under the rubric of such abstruse distinctions, it is unlikely that juries can comprehend such distinctions.

Justice Frankfurter explained in a slightly different context, "The phrase `assumption of risk' is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas." (Tiller v. Atlantic Coast Line R. Co. (1943) 318 U.S. 54, 68 [87 L.Ed. 610, 618, 63 S.Ct. 444, 143 A.L.R. 967] (conc. opn. of Frankfurter, J.).) Thus the Rini court, in attempting to determine the viability of assumption of risk in light of the Arkansas comparative fault law, was forced to identify "four types of assumption of risk...." (Rini v. Oaklawn Jockey Club, supra, 861 F.2d at p. 505.) These included "implied secondary reasonable assumption of risk" and "implied secondary unreasonable assumption of risk." (Id. at p. 506.)

I would eliminate the confusion that continued reliance on implied assumption of risk appears to cause, and would simply apply comparative fault principles to determine liability.

PANELLI, J., Concurring and Dissenting.

I concur in the majority opinion solely with respect to the result reached. The majority correctly affirms the judgment of the Court of Appeal, which upheld the summary judgment entered by the trial court. I dissent, however, from the reasoning of the majority opinion. Instead, I reach a like result by adopting and applying the "consent-based" analysis set forth in the dissenting opinion by Justice Kennard. While I subscribe to the analysis of the dissenting opinion with respect to the doctrine of implied assumption of the risk, I am not in accord 323 *323 with how it would dispose of this case. I believe that defendant met the burden of demonstrating that plaintiff assumed the risk of injury by her participation in the touch football game.

As the dissenting opinion explains: "To establish the defense [of implied assumption of the risk], a defendant must prove that the plaintiff voluntarily accepted a risk with knowledge and appreciation of that risk. (Prescott v. Ralphs Grocery Co. [(1954)] 42 Cal.2d 158, 161 [265 P.2d 904].)" (Dis. opn., post, p. 326.) As the dissenting opinion further explains: "A defendant need not prove, however, that the plaintiff `had the prescience to foresee the exact accident and injury which in fact occurred.' (Sperling v. Hatch (1970) 10 Cal. App.3d 54, 61 [88 Cal. Rptr. 704].)" (Ibid.)

There is no question that plaintiff voluntarily chose to play touch football.^[1] The undisputed facts in this case also show that plaintiff knew of and accepted the risks associated with the game. Plaintiff was an avid football fan. She had participated in games of touch football in the past. She was aware of the fact that in touch football players try to deflect the ball from receiving players. Plaintiff admitted that the players in the game in question could expect to receive "bumps" and "bruises." These facts indicate that plaintiff knew and appreciated that physical injury resulting from contact, such as being knocked to the ground, was possible when playing touch football. Defendant was not required to prove more, such as that plaintiff knew or appreciated that a "serious injury" or her particular injury could result from the expected physical contact.

To support the conclusion that summary judgment be reversed under the consent-based approach, the dissenting opinion stresses the broad range of activities that can be part of a "touch football game" and that few rules were delineated for the particular game in which plaintiff was injured. I find these facts to be irrelevant to the question at hand. The risk of physical contact and the possibility of resulting injury is inherent in the game of football, no matter who is playing the game or how it is played. While the players who participated in the game in question may have wanted a "mellow" and "noncompetitive" game, such expectations do not alter the fact that anyone who has observed or played any form of football understands that it is a contact sport and that physical injury can result from such physical contact.

324 *324 The undisputed facts of this case amply support awarding defendant summary judgment based upon plaintiff's implied assumption of the risk. I, therefore, concur in affirming the judgment of the Court of Appeal.

Baxter, J., concurred.

KENNARD, J.

I disagree with the plurality opinion both in its decision to affirm summary judgment for defendant and in its analytic approach to the defense of assumption of risk.

We granted review in this case and its companion, Ford v. Gouin (post, p. 339 [11 Cal. Rptr.2d 30, 834 P.2d 724]), to resolve a lopsided conflict in the Courts of Appeal on whether our adoption 17 years ago of a system of comparative fault in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393] (hereafter Li) necessarily abolished the affirmative defense of implied assumption of risk.^[1] When confronted with this issue, the overwhelming majority of appellate courts in this state have held that, except to the extent it was subsumed within the former doctrine of contributory negligence this court abolished in Li, implied assumption of risk continues as a complete defense. I would so hold in this case, adhering to the traditional analysis of implied assumption of risk established by a long line of California cases, both before and after Li.

Not content with deciding the straightforward issue before us — whether the defense of implied assumption of risk survived Li — the plurality opinion uses this case as a forum to advocate a radical transformation of tort law. The plurality proposes to recast the analysis of implied assumption of risk from a subjective evaluation of what a particular plaintiff knew and appreciated about the encountered risk into a determination of the presence or absence of duty legally imposed on the defendant. By thus transforming an affirmative defense into an element of the plaintiff's negligence action, the plurality would abolish the defense without acknowledging that it is doing so.

The plurality opinion also announces a rule that those who engage in active sports do not owe coparticipants the usual duty of care — as measured by the standard of a reasonable person in like or similar circumstances — to avoid inflicting physical injury. According to the plurality, a sports participant has no duty to avoid conduct inherent in a particular sport. Although I agree that in organized sports contests played under well-established rules participants have no duty to avoid the very conduct that constitutes the sport, 325 *325 I cannot accept the plurality's nearly boundless expansion of this general principle to eliminate altogether the "reasonable person" standard as the measure of duty actually owed between sports participants.

The ultimate question posed by this case is whether the trial court properly granted summary judgment for defendant. Deriving the facts from the evidence that the parties presented to the trial court on defendant's motion for summary judgment, and relying on well-established summary judgment principles, I conclude that defendant is not entitled to summary judgment. In reaching a contrary conclusion, the plurality mischaracterizes the nature of the athletic contest during which plaintiff incurred her injury. The evidence reveals that rather than an organized match with well-defined rules, it was an impromptu and informal game among casual acquaintances who entertained divergent views about how it would be played. This inconclusive record simply does not permit a pretrial determination that plaintiff knew and appreciated the risks she faced or that her injury resulted from a risk inherent in the game.

I

To explain my conclusion that implied assumption of risk survives as an affirmative defense under the system of comparative fault this court adopted in Li in 1975, I first summarize the main features of the defense as established by decisions published before Li.

In California, the affirmative defense of assumption of risk has traditionally been defined as the voluntary acceptance of a specific, known and appreciated risk that is or may have been caused or contributed to by the negligence of another. (Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 162 [265 P.2d 904]; see Hayes v. Richfield Oil Corp. (1952) 38 Cal.2d 375, 384-385 [240 P.2d 580].) Assumption of risk may be proved either by the plaintiff's spoken or written words (express assumption of risk), or by inference from the plaintiff's conduct (implied assumption of risk). Whether the plaintiff knew and appreciated the specific risk, and voluntarily chose to encounter it, has generally been a jury question. (See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1110, p. 523.)

The defense of assumption of risk, whether the risk is assumed expressly or by implication, is based on consent. (Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 271 [32 Cal. Rptr. 193, 383 P.2d 777]; see Prosser & Keeton, Torts (5th ed. 1984) § 68, p. 484.) Thus, in both the express and implied forms, the defense is a specific application of the maxim that one "who consents to an act is not wronged by it." (Civ. Code, § 3515.) This 326 *326 consent, we have explained, "will negative liability" (Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161; see also Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 498, fn. 10 [102 Cal. Rptr. 795, 498 P.2d 1043] ["In assumption of the risk the negligent party's liability is negated ...."]), and thus provides a complete defense to an action for negligence.

The elements of implied assumption of risk deserve some explanation. To establish the defense, a defendant must prove that the plaintiff voluntarily accepted a risk with knowledge and appreciation of that risk. (Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161.) The normal risks inherent in everyday life, such as the chance that one who uses a public highway will be injured by the negligence of another motorist, are not subject to the defense, however, because they are general rather than specific risks. (See Hook v. Point Montara Fire Protection Dist. (1963) 213 Cal. App.2d 96, 101 [28 Cal. Rptr. 560].)

The defense of implied assumption of risk depends on the plaintiff's "actual knowledge of the specific danger involved." (Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 274.) Thus, one who "knew of the general danger in riding in a bucket of the mine owner's aerial tramway, did not assume the risk, of which he had no specific knowledge, that the traction cable was improperly spliced." (Id. at p. 272, italics added, referring to Bee v. Tungstar Corp. (1944) 65 Cal. App.2d 729, 733 [151 P.2d 537]; see also Carr v. Pacific Tel. Co. (1972) 26 Cal. App.3d 537, 542-543 [103 Cal. Rptr. 120].) A defendant need not prove, however, that the plaintiff "had the clairvoyance to foresee the exact accident and injury which in fact occurred." (Sperling v. Hatch (1970) 10 Cal. App.3d 54, 61 [88 Cal. Rptr. 704].) "Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge and there may be an assumption of the risk...." (Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d at 162.) Indeed, certain well-known risks of harm may be within the general "common knowledge." (Tavernier v. Maes (1966) 242 Cal. App.2d 532, 546 [51 Cal. Rptr. 575].)

As set forth earlier, a person's assumption of risk must be voluntary. "The plaintiff's acceptance of a risk is not voluntary if the defendant's tortious conduct has left him [or her] no reasonable alternative course of conduct in order to [¶] (a) avert harm to himself [or herself] or another, or [¶] (b) exercise or protect a right or privilege of which the defendant has no right to deprive him [or her]." (Rest.2d Torts, § 496E, subd. (2); see also Curran v. Green Hills Country Club (1972) 24 Cal. App.3d 501, 505-506 [101 Cal. Rptr. 158].)

327 *327 This requirement of voluntariness precludes assertion of the defense of assumption of risk by a defendant who has negligently caused injury to another through conduct that violates certain safety statutes or ordinances such as those designed to protect a class of persons unable to provide for their own safety for reasons of inequality of bargaining power or lack of knowledge. (See Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 430-431 [218 P.2d 17] [violation of fire-safety ordinance]; Fonseca v. County of Orange (1972) 28 Cal. App.3d 361, 366, 368 [104 Cal. Rptr. 566] [violation of safety order requiring scaffolding and railings at bridge construction site]; see also Mason v. Case (1963) 220 Cal. App.2d 170, 177 [33 Cal. Rptr. 710].) Thus, a worker who, to avoid loss of livelihood, continues to work in the face of safety violations does not thereby assume the risk of injury as a result of those violations. (See, e.g., Lab. Code, § 2801; Fonseca v. County of Orange, supra, 28 Cal. App.3d 361.) In such cases, the implied agreement upon which the defense is based is contrary to public policy and therefore unenforceable.

Our 1975 decision in Li, supra, 13 Cal.3d 804, marked a fundamental change in California law governing tort liability based on negligence. Before Li, a person's own lack of due care for his or her safety, known as contributory negligence, completely barred that person from recovering damages for injuries inflicted by the negligent conduct of another. In Li, we held that a lack of care for one's own safety would no longer entirely bar recovery, and that juries thereafter should compare the fault or negligence of the plaintiff with that of the defendant to apportion loss between the two. (Id. at pp. 828-829.)

Before it was abolished by Li, supra, 13 Cal.3d 804, the defense of contributory negligence was sometimes confused with the defense of implied assumption of risk. Although this court had acknowledged that the two defenses may "arise from the same set of facts and frequently overlap" (Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 271), we had emphasized that they were nonetheless "essentially different" (ibid.) because they were "based on different theories" (Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161). Contributory negligence was premised on a lack of due care or, stated another way, a departure from the reasonable person standard, whereas implied assumption of risk has always depended on a voluntary acceptance of a risk with knowledge and appreciation of that risk. (Id. at pp. 161-162; Gonzalez v. Garcia (1977) 75 Cal. App.3d 874, 878 [142 Cal. Rptr. 503].)

The standards for evaluating a plaintiff's conduct under the two defenses were entirely different. Under contributory negligence, the plaintiff's conduct was measured against the objective standard of a hypothetical reasonable person. (Gonzalez v. Garcia, supra, 75 Cal. App.3d 874, 879.) Implied 328 *328 assumption of risk, in contrast, has always depended upon the plaintiff's subjective mental state; the relevant inquiry is whether the plaintiff actually knew, appreciated, and voluntarily consented to assume a specific risk of injury. (Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 243-245 [53 Cal. Rptr. 545, 418 P.2d 153].)

We said in Li, albeit in dictum, that our adoption of a system of comparative fault would to some extent necessarily impact the defense of implied assumption of risk. (Li, supra, 13 Cal.3d 804, 826.) We explained: "As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. `To simplify greatly, it has been observed ... that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he [or she] may encounter that risk in a prudent manner, is in reality a form of contributory negligence.... Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him [or her]. Such a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care.' [Citations.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence." (Li, supra, 13 Cal.3d 804, 824-825, original italics.)

Although our adoption in Li of a system of comparative fault eliminated contributory negligence as a separate defense, it did not alter the basic attributes of the implied assumption of risk defense or call into question its theoretical foundations, as we affirmed in several cases decided after Li. For example, in Walters v. Sloan (1977) 20 Cal.3d 199 [142 Cal. Rptr. 152, 571 P.2d 609], we said that "one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby." (At p. 204; see also Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 406 [143 Cal. Rptr. 13, 572 P.2d 1155] [acknowledging the continued viability of the assumption of risk defense after the adoption of comparative fault].) Thereafter, in Lipson v. Superior Court (1982) 31 Cal.3d 362 [182 Cal. Rptr. 629, 644 P.2d 822], we reiterated that "the defense of assumption of risk arises when the plaintiff voluntarily undertakes to encounter a specific known risk imposed by defendant's conduct." (At p. 375, fn. 8.)

The Courts of Appeal directly addressed this issue in several cases, which were decided after Li, supra, 13 Cal.3d 804, and which considered whether, 329 *329 and to what extent, implied assumption of risk as a complete defense survived our adoption in Li of a system of comparative fault. The first of these cases was Segoviano v. Housing Authority (1983) 143 Cal. App.3d 162 [191 Cal. Rptr. 578] (hereafter Segoviano).

In Segoviano, the plaintiff was injured during a flag football game when an opposing player pushed him to the ground as the plaintiff was running along the sidelines trying to score a touchdown. Although the jury found that the opposing player was negligent, and that this negligence was a legal cause of the plaintiff's injury, it also found that the plaintiff's participation in the game was a negligent act that contributed to the injury. Applying the instructions it had been given on comparative negligence, the jury apportioned fault for the injury between the two players and reduced the plaintiff's award in accord with that apportionment. (143 Cal. App.3d at p. 166.)

To determine whether the jury had acted properly in making a comparative fault apportionment, the Segoviano court began its analysis by distinguishing those cases in which the plaintiff's decision to encounter a known risk was "unreasonable" from those in which it was "reasonable." (Segoviano, supra, 143 Cal. App.3d 162, 164.) In so doing, Segoviano relied on this court's language in Li, which I have quoted on page 328, ante, that a plaintiff's conduct in "unreasonably" undertaking to encounter a specific known risk was "a form of contributory negligence" that would be merged "into the general scheme of assessment of liability in proportion to fault." (Li, supra, 13 Cal.3d 804, 824-825.)

The Segoviano court defined an "unreasonable" decision to encounter a known risk as one that "falls below the standard of care which a person of ordinary prudence would exercise to avoid injury to himself or herself under the circumstances." (Segoviano, supra, 143 Cal. App.3d 162, 175, citing Rest.2d Torts, § 463.) The Segoviano court cited a person's voluntary choice to ride with a drunk driver as an example of an "unreasonable" decision. (Id. at p. 175; see Gonzalez v. Garcia, supra, 75 Cal. App.3d 874, 881; Paula v. Gagnon (1978) 81 Cal. App.3d 680, 685 [146 Cal. Rptr. 702].) Because an "unreasonable" decision to risk injury is neglect for one's own safety, the Segoviano court observed, a jury can appropriately compare the negligent plaintiff's fault with that of the negligent defendant and apportion responsibility for the injury, applying comparative fault principles to determine the extent of the defendant's liability. (Segoviano, supra, at pp. 164, 170.)

By contrast, the plaintiff's decision to play flag football was, in the Segoviano court's view, an example of a "reasonable" decision to encounter a known risk of injury. Although the risk of being injured during a flag 330 *330 football game could be avoided altogether by choosing not to play, this did not render the plaintiff's decision to play "unreasonable." (Segoviano, supra, 143 Cal. App.3d 162, 175.) Rather, the court said, a person who participates in a game of flag football is not negligent in doing so, because the choice does not fall below the standard of care that a person of ordinary prudence would exercise to avoid being injured. The Segoviano court concluded that such cases, in which there is no negligence of the plaintiff to compare with the negligence of the defendant, cannot be resolved by comparative fault apportionment of the plaintiff's damages. (Id. at pp. 174-175.)

The Segoviano court next considered whether the defense of implied assumption of risk, to the extent it had not merged into comparative fault, continued to provide a complete defense to an action for negligence following our decision in Li (supra, 13 Cal.3d 804). The court asked, in other words, whether a plaintiff's voluntary and nonnegligent decision to encounter a specific known risk was still a complete bar to recovery, or no bar at all.

In resolving this issue, the court found persuasive a commentator's suggestion that "`it would be whimsical to treat one who has unreasonably assumed the risk more favorably ... than one who reasonably assumed the risk....'" (Segoviano, supra, 143 Cal. App.3d 162, 169, quoting Fleming, The Supreme Court of California 1974-1975, Forward: Comparative Negligence at Last — By Judicial Choice (1976) 64 Cal.L.Rev. 239, 262.) To avoid this "whimsical" result, in which "unreasonable" plaintiffs were allowed partial recovery by way of a comparative fault apportionment while "reasonable" plaintiffs were entirely barred from recovery of damages, the Segoviano court concluded that our decision in Li, supra, 13 Cal.3d 804, must mean that the defense of implied assumption of risk had been abolished in all those instances in which it had not merged into the system of comparative fault, and that only express assumption of risk survived as a complete defense to an action for negligence. (Segoviano, supra, 143 Cal. App.3d 162, 169-170.) The Segoviano court thus held that the defense of implied assumption of risk "plays no part in the comparative negligence system of California." (Id. at p. 164.) Various Court of Appeal decisions soon challenged this holding of Segoviano.

One decision characterized Segoviano's analysis as "suspect." (Rudnick v. Golden West Broadcasters (1984) 156 Cal. App.3d 793, 800, fn. 4 [202 Cal. Rptr. 900].) Another case disregarded it entirely in reaching a contrary result (Nelson v. Hall (1985) 165 Cal. App.3d 709, 714 [211 Cal. Rptr. 668] ["Where assumption of the risk is not merely a form of contributory negligence," it remains "a complete defense."]; accord, Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal. App.3d 176, 183 [229 Cal. Rptr. 612]; Willenberg v. Superior Court (1986) 185 Cal. App.3d 185, 186-187 [229 Cal. Rptr. 331 *331 625]). And in Ordway v. Superior Court (1988) 198 Cal. App.3d 98, 104 [243 Cal. Rptr. 536] (hereafter Ordway), the court rejected Segoviano outright, holding instead that "reasonable" implied assumption of risk continued as a complete defense under the newly adopted system of comparative fault.

The Court of Appeal that decided Ordway, supra, interpreted Li's reference to a form of assumption of risk under which "`plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him [or her]'" (Li, supra, 13 Cal.3d at p. 824) as describing a doctrine that the Ordway court termed "reasonable" implied assumption of risk. This doctrine, the Ordway court concluded, was unaffected by Li's adoption of a system of comparative negligence and remained a complete defense after Li. (Ordway, supra, 198 Cal. App.3d 98, 103-104.) According to Ordway, a plaintiff who voluntarily and reasonably assumes a risk, "whether for recreational enjoyment, economic reward, or some similar purpose," is deemed thereby to have agreed to reduce the defendant's duty of care and "cannot prevail." (Id. at p. 104.)

After concluding that the defense of implied assumption of risk remained viable after this court's decision in Li, supra, 13 Cal.3d 804, the Ordway court discussed the preclusive impact of the defense on the facts of the case before it. Ordway involved a negligence action brought by a professional jockey who had been injured in a horse race when another jockey, violating a rule of the California Horse Racing Board, crossed into the plaintiff's lane. The court first noted that professional jockeys must be aware that injury-causing accidents are both possible and common in horse racing, as in other sports activities. (Ordway, supra, 198 Cal. App.3d 98, 111.) The court observed that although the degree of risk to be anticipated would vary with the particular sport involved, a plaintiff may not recover from a coparticipant for a sports injury if the coparticipant's injury-causing actions fell within the ordinary expectations of those engaged in the sport. (Id. at pp. 111-112.) On this basis, the Ordway court held that the plaintiff jockey's action was barred.

Other decisions by the Courts of Appeal that have addressed implied assumption of risk have followed Ordway, supra, 198 Cal. App.3d 98. (Nunez v. R'Bibo (1989) 211 Cal. App.3d 559, 562-563 [260 Cal. Rptr. 1]; Von Beltz v. Stuntman, Inc. (1989) 207 Cal. App.3d 1467, 1477-1478 [255 Cal. Rptr. 755]; King v. Magnolia Homeowners Assn. (1988) 205 Cal. App.3d 1312, 1316 [253 Cal. Rptr. 140].) In my view, Ordway was correct in its conclusions that the defense of implied assumption of risk survived this court's adoption in Li (supra, 13 Cal.3d 804) of a system of comparative fault, and that the defense remains a complete bar to recovery in negligence cases in which the plaintiff has knowingly and voluntarily consented to encounter a specific risk.

332 *332 Ordway was also correct in its observation that the terms "unreasonable" and "reasonable" are confusing when used to distinguish the form of implied assumption of risk that has merged into the system of comparative fault from the form that has not so merged. As Ordway suggested, the reasonable/unreasonable labels would be more easily understood by substituting the terms "knowing and intelligent," for "reasonable," and "negligent or careless" for "unreasonable." (Ordway, supra, 198 Cal. App.3d 98, 105.)

The defense of implied assumption of risk is never based on the "reasonableness" of the plaintiff's conduct, as such, but rather on a recognition that a person generally should be required to accept responsibility for the normal consequences of a freely chosen course of conduct. (See Simons, Assumption of Risk and Consent in the Law of Torts: A Theory of Full Preference (1987) 67 B.U.L.Rev. 213, 258 ["consent is neither reasonable nor unreasonable[;] [i]t simply expresses what plaintiff wants or prefers"].) In implied assumption of risk situations, the plaintiff's conduct often defies legal characterization as either reasonable or unreasonable. Even when this is not so, and a court or jury could appropriately determine whether the plaintiff's conduct was reasonable, the distinction to be drawn is not so much between reasonable and unreasonable conduct. Rather, the essential distinction is between conduct that is deliberate and conduct that is merely careless. Referring to "reasonable" implied assumption of risk lends unwarranted credence to the charge that the law is "whimsical" in treating unreasonable behavior more favorably than behavior that is reasonable. There is nothing arbitrary or whimsical in requiring plaintiffs to accept responsibility for the consequences of their considered and deliberate choices, while at the same time apportioning liability between a plaintiff and a defendant who have both exhibited carelessness.

In those cases that have merged into comparative fault, partial recovery is permitted, not because the plaintiff has acted unreasonably, but because the unreasonableness of the plaintiff's apparent choice provides compelling evidence that the plaintiff was merely careless and could not have truly appreciated and voluntarily consented to the risk, or because enforcement of the implied agreement on which the defense is based would be contrary to sound public policy. In these cases, implied assumption of risk is simply not available as a defense, although comparative negligence may be.

In those cases in which a plaintiff's decision to encounter a specific known risk was not the result of carelessness (that is, when the plaintiff's conduct is not merely a form of contributory negligence), nothing in this court's adoption in Li (supra, 13 Cal.3d 804) of a system of comparative fault suggests that implied assumption of risk must or should be eliminated 333 *333 as a complete defense to an action for negligence. I would hold, therefore, that the defense continues to exist in such situations unaffected by this court's adoption in Li of a comparative fault system.

II

The plurality opinion approaches the viability of implied assumption of risk after Li, supra, 13 Cal.3d 804, in a fashion altogether different from the traditional consent analysis I have described. It begins by conceding that Li effected only a partial merger of the assumption of risk defense into the system of comparative fault. It then concludes, with no foundational support in California law, that the actual effect of this partial merger was to bifurcate implied assumption of risk into two subcategories that the plurality calls "primary" and "secondary" assumption of risk.

The plurality's "secondary assumption of risk" category includes those situations in which assumption of risk is merely a variant of contributory negligence. In those situations, under the plurality approach, implied assumption of risk merges into comparative fault; a trial court presented with a "secondary" case would therefore instruct the jury only on the principles of damage apportionment based on comparative fault, but not on implied assumption of risk as a separate and complete defense. Thus, implied assumption of risk does not survive as a separate and complete defense in these "secondary" cases.

Under the plurality's approach, implied assumption of risk fares no better in the "primary assumption of risk" cases. That category includes only those cases in which the defendant owes no duty to the plaintiff. Without duty, of course, there is no basis for a negligence action and thus no need for an affirmative defense to negligence. Consequently, implied assumption of risk ceases to operate as an affirmative defense in these "primary" cases.

The plurality purports to interpret Li, supra, 13 Cal.3d 804, but instead works a sleight-of-hand switch on the assumption of risk defense. In those situations in which implied assumption of risk does not merge into comparative fault, the plurality recasts what has always been a question of the plaintiff's implied consent into a question of the defendant's duty. This fundamental alteration of well-established tort principles was not preordained by Li nor was it a logical evolution of California law either before or after this court's decision in Li. Seizing on Li's statement that a plaintiff who assumes the risk thereby reduces a defendant's duty of care, the plurality concludes that defendants had no duty of care in the first place. The plurality presents its analysis as merely an integration of the defense of implied 334 *334 assumption of risk into the system of comparative fault, but this "integration" is in truth a complete abolition of a defense that California courts have adhered to for more than 50 years. I see no need or justification for this drastic revision of California law.

III

On a motion for summary judgment, a defendant can establish implied assumption of risk as a complete defense to negligence by submitting uncontroverted evidence that the plaintiff sustained the injury while engaged in voluntarily chosen activity under circumstances showing that the plaintiff knew or must have known that the specific risks of the chosen activity included the injury suffered. (See Code Civ. Proc., § 437c, subds. (a), (c), (f); Garcia v. Rockwell Internat. Corp. (1986) 187 Cal. App.3d 1556, 1560 [142 Cal. Rptr. 503]; Fireman's Fund Ins. Co. v. City of Turlock (1985) 170 Cal. App.3d 988, 994 [216 Cal. Rptr. 796].) In this case, the trial court entered summary judgment for defendant, ruling that the evidence supporting the motion established assumption of risk under the traditional consent analysis.

The undisputed, material facts are as follows: Plaintiff, defendant, and six or eight other guests gathered at the home of a mutual friend to watch a television broadcast of the 1987 Super Bowl football game. During the game's half time, the group went to an adjacent dirt lot for an informal game of touch football. The participants divided into two teams, each including men as well as women. They used a child's soft, "peewee-size" football for the game. The players expected the game to be "mellow" and "noncompetitive," without any "forceful pushing, hard hitting or hard shoving."

Plaintiff and defendant were on opposing teams. Plaintiff was an avid fan of televised professional football, but she had played touch football only rarely and never with this particular group. When defendant ran into her early in the game, plaintiff objected, stating that he was playing too roughly and if he continued, she would not play. Plaintiff stated in her declaration that defendant "seemed to acknowledge [her] statement" and "left [her] with the impression that he would play less rough." On the very next play, defendant knocked plaintiff down and inflicted the injury for which she seeks recovery.

We have held that summary judgment "is a drastic measure" that should "be used with caution." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal. Rptr. 122, 762 P.2d 46].) On appeal from a summary judgment, well-settled rules dictate that the moving party's evidence supporting the motion be strictly construed and that doubts about granting the motion be 335 *335 resolved in favor of the party that opposed the motion. (Ibid.) Applying those rules here, I conclude that defendant has not established implied assumption of risk as a complete defense to plaintiff's action for negligence.

Notably missing from the undisputed facts is any evidence that plaintiff either knew or must have known that by participating in this particular game she would be engaging in a sport that would subject players to being knocked to the ground. She had played touch football only rarely, never with these players, and just before her injury had expressly told defendant that her participation in the touch football game was conditioned on him not being so rough. Moreover, the game was not even a regular game of touch football. When deposed, defendant conceded that this touch football game was highly unusual because the teams consisted of both men and women and the players used a child's peewee ball. He agreed that the game was not "regulation football," but was more of a "mock" football game.

"Touch football" is less the name of a game than it is a generic description that encompasses a broad spectrum of activity. At one end of the spectrum is the "traditional" aggressive sandlot game, in which the risk of being knocked down and injured should be immediately apparent to even the most casual observer. At the other end is the game that a parent gently plays with young children, really little more than a game of catch. Here, defendant may prevail on his summary judgment motion only if the undisputed facts show that plaintiff knew this to be the type of game that involved a risk of being knocked to the ground. As explained above, such knowledge by the plaintiff was not established. Accordingly, the trial court erred in granting summary judgment for defendant on the ground that plaintiff had assumed the risk of injury.

IV

To uphold the grant of summary judgment for defendant, the plurality relies on a form of analysis virtually without precedent in this state. As an offshoot of its advocacy of the primary/secondary approach to implied assumption of risk, the plurality endorses a categorical rule under which coparticipants in active sports have no duty to avoid conduct "inherent" in the sport, and thus no liability for injuries resulting from such conduct. Applying the rule to the facts shown here, the plurality concludes that plaintiff's injury resulted from a risk "inherent" in the sport she played and that defendant owed her no duty to avoid the conduct that caused this injury.

Generally, a person is under a legal duty to use ordinary care, measured by the conduct of a hypothetical reasonable person in like or similar circumstances, to avoid injury to others. (Civ. Code, § 1714, subd. (a).) Judicially 336 *336 fashioned exceptions to this general duty rule must be clearly supported by public policy. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1079 [9 Cal. Rptr.2d 615, 831 P.2d 1197].) The plurality's no-duty-for-sports rule is such a judicially fashioned exception to the general duty rule. Under the plurality's rule, a sports participant's conduct is not evaluated by the "reasonable person" standard. Rather, the player is exempted from negligence liability for all injuries resulting from conduct that is "inherent" in the sport.

The plurality's no-duty-for-sports rule derives from cases in a few jurisdictions concluding that a participant's liability for injuries to a coparticipant during competitive sports must be based on reckless or intentional conduct. (See Gauvin v. Clark (1989) 404 Mass. 450 [537 N.E.2d 94]; Kabella v. Bouschelle (1983) 100 N.M. 461 [672 P.2d 290]; Ross v. Clouser (Mo. 1982) 637 S.W.2d 11; Nabozny v. Barnhill (1975) 31 Ill. App.3d 212 [334 N.E.2d 258, 77 A.L.R.3d 1294].) Although these courts have chosen to explain the rule in terms of the absence of duty, the consent analysis of implied assumption of risk would provide an equally satisfactory explanation. (See Ordway, supra, 198 Cal. App.3d 98, 110-112.) The reason no duty exists in these competitive sports situations is that, as the Massachusetts Supreme Court has explained in Gauvin, each participant has a right to infer that the others have agreed to undergo a type of physical contact that would otherwise constitute assault and battery.^[2] (Gauvin v. Clark, supra, 537 N.E.2d at p. 96.) Without some reference to mutual consent or implied agreement among coparticipants, the no-duty-for-sports rule would be difficult to explain and justify. Thus, the rationale of the rule, even in no-duty garb, is harmonious with the traditional logic of implied assumption of risk.

Although there is nothing inherently wrong with the plurality's no-duty rule as applied to organized, competitive, contact sports with well-established modes of play, it should not be extended to other, more casual sports activities, such as the informal "mock" football game shown by the evidence in this case. Outside the context of organized and well-defined sports, the policy basis for the duty limitation — that the law should permit and encourage vigorous athletic competition (Gauvin v. Clark, supra, 537 N.E.2d at p. 96) — is considerably weakened or entirely absent. Thus, the no-duty-for-sports rule logically applies only to organized sports contests played under well-settled, official rules (Gauvin v. Clark, supra, 537 N.E.2d 94 [college varsity hockey game]; Ross v. Clouser, supra, 637 S.W.2d 11 [church league softball game]; Nabozny v. Barnhill, supra, 334 N.E.2d 258 [organized, 337 *337 amateur soccer game]), or on unequivocal evidence that the sport as played involved the kind of physical contact that generally could be expected to result in injury (Kabella v. Bouschelle, supra, 672 P.2d 290).

The plurality may believe that its no-duty rule for sports participants will facilitate early resolution of personal injury actions by demurrer or motions for summary judgment and thus provide relief to overburdened trial courts by eliminating the need for jury trials in many of these cases. But the plurality fails to explain just how trial courts will be able to discern, at an early stage in the proceedings, which risks are inherent in a given sport.

Under the plurality's no-duty-for-sports rule, a sports participant is exempted from negligence liability for all injuries resulting from conduct that is within "the range of ordinary activity involved in the sport." (Plur. opn., ante, at p. 320.) Under this approach, as the plurality acknowledges, "the nature of a defendant's duty in the sports context depends heavily on the nature of the sport itself." (Id., ante, at p. 317.)

The issue framed by the plurality's no-duty approach can be decided on demurrer only if the plaintiff has alleged in the complaint that the injury resulted from a risk inherent in an injury-causing sport, something careful pleaders are unlikely to do. And because summary judgment depends on uncontroverted material facts, early adjudication of the duty issue by summary judgment is equally doubtful. In cases involving all but the most well-known professional sports, plaintiffs will usually be able to counter defense evidence seeking to establish what risks are inherent in the sport. Cases that cannot be resolved by demurrer or summary judgment will, under the plurality's approach, proceed to trial solely under comparative fault, leaving the jury no opportunity to decide whether the plaintiff made a knowing and voluntary decision to assume the risk.

The plurality's resolution of this case amply illustrates the difficulty of attempting to decide the question of duty by motion for summary judgment. To sustain summary judgment under the plurality's approach, the defendant must have conclusively negated the element of duty necessary to the plaintiff's negligence case. (Molko v. Holy Spirit Assn., supra, 46 Cal.3d 1092, 1107.) Therefore, under the plurality approach, defendant here is entitled to summary judgment only if he negated the element of duty by presenting undisputed evidence showing that his injury-causing conduct was within the range of activity ordinarily involved in the sport he was then playing.

But what is "the range of the ordinary activity" involved in touch football? As I have previously explained, the generic term "touch football" encompasses such a broad range of activity that it is difficult to conceive of an 338 *338 "ordinary" game. Even if such a game could be identified, defendant offered no evidence in support of his motion for summary judgment to show that players are knocked to the ground in the "ordinary" game. In the absence of uncontroverted evidence on this material fact, defendant was not entitled to summary judgment.

As mentioned earlier, defendant admitted at his deposition that this was not a "regulation football" game, and that it was more of a "mock" game because it was played by both men and women using a child's peewee ball. Given the spontaneous and irregular form of the game, it is not surprising that the participants demonstrated uncertainty about the bounds of appropriate conduct. One participant, asked at deposition whether defendant had done anything "out of the normal," touched the nub of the problem by replying with this query: "Who's [sic; whose] normal? My normal?"

Defendant did not present uncontroverted evidence that his own rough level of play was "inherent" in or normal to the particular game being played. In the view of one of the players, defendant was playing "considerably rougher than was necessary." Other players described defendant as a fast runner and thought he might have been playing too hard. Absent uncontroverted evidence that defendant's aggressive style of play was appropriate, there is no basis for the plurality's conclusion that his injury-causing conduct in knocking plaintiff to the ground was within the range of ordinary and acceptable behavior for the ill-defined sports activity in which plaintiff was injured.

Defendant did not meet his burden to establish by undisputed evidence a legal entitlement to summary judgment. The record fails to support summary judgment under either the traditional consent approach to the defense of assumption of risk or the plurality's no-duty approach. Thus, the trial court erred in granting defendant's motion for summary judgment, and the Court of Appeal erred in affirming that judgment. I would reverse.

[1] The portion of defendant's deposition attached to plaintiff's opposition included the following passage:

"Q: .... [F]rom your perspective — and I asked this same question of both of your friends yesterday — is the standard of care in which you were going to be dealing with people out there in the play field different, in your opinion, when you're playing in that kind of a game, that is, the one that happened on that day versus if you're out there playing in the exact same place and with a bunch of guys and no girls.

"A: Yeah, it would be different. Yes.

"Q: So, theoretically, you should be much more careful when the women are out there than if it was a bunch of guys?

"A: Right."

[2] In Ordway v. Superior Court, supra, 198 Cal. App.3d 98, the court suggested that the differentiation in the treatment accorded reasonable and unreasonable plaintiffs under an approach viewing "reasonable implied assumption of risk" as a complete bar to recovery was only "superficially anomalous" (id. at p. 104), and could be explained by reference to "the expectation of the defendant. He or she is permitted to ignore reasonably assumed risks and is not required to take extraordinary precautions with respect to them. The defendant must, however, anticipate that some risks will be unreasonably undertaken, and a failure to guard against these may result in liability." (Id. at p. 105.)

Even when the matter is viewed from the defendant's perspective, however, this suggested dichotomy is illogical and untenable. From the standpoint of a potential defendant, it is far more logical to require that the defendant take precautions with respect to risks that the defendant reasonably can foresee being undertaken, than it would be to impose liability only for risks that the defendant is less likely to anticipate will be encountered.

Ordway also attempted to explain the anomaly by reformulating the distinction between reasonable and unreasonable assumption of risk as one between plaintiffs who make a "knowing and intelligent" choice and those who act "negligent[ly] or careless[ly]" (Ordway v. Superior Court, supra, 198 Cal. App.3d 98, 105), and the dissenting opinion cites this reformulated terminology with approval. (See dis. opn. by Kennard, J., post, p. 332.) The Li decision, however, specifically subsumed within comparative fault those assumption of risk cases in which a defendant "`unreasonably undertakes to encounter a specific known risk'" (Li, supra, 13 Cal.3d 804, 824, italics omitted and added), i.e., cases in which a defendant makes a knowing, but unreasonable, choice to undertake a risk. Indeed, in recasting the "unreasonable" assumption of risk category to include only those cases in which the plaintiff merely was careless and did not act with actual knowledge of the risk, Ordway inadvertently redefined the unreasonable assumption of risk category out of existence. The pre-Li decisions clearly held that where a plaintiff was injured as the result of a defendant's breach of duty, the assumption of risk doctrine applied only to those instances in which the plaintiff actually knew of and appreciated the specific risk and nonetheless chose to encounter the risk. (See, e.g., Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 271 ["Actual, and not merely constructive, knowledge of the danger is required."].)

[3] The introductory passage from the Harper and James treatise on The Law of Torts, that was cited with approval in Li, stated in this regard: "The term assumption of risk has led to no little confusion because it is used to refer to at least two different concepts, which largely overlap, have a common cultural background, and often produce the same legal result. But these concepts are nevertheless quite distinct rules involving slightly different policies and different conditions for their application. (1) In its primary sense the plaintiff's assumption of a risk is only the counterpart of the defendant's lack of duty to protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even though he was quite reasonable in encountering the risk that caused it. Volenti non fit injuria. (2) A plaintiff may also be said to assume a risk created by defendant's breach of duty towards him, when he deliberately chooses to encounter that risk. In such a case, except possibly in master and servant cases, plaintiff will be barred from recovery only if he was unreasonable in encountering the risk under the circumstances. This is a form of contributory negligence. Hereafter we shall call this `assumption of risk in a secondary sense.'" (2 Harper & James, The Law of Torts (1st ed. 1956) § 21.1, p. 1162, fns. omitted, cited in Li, supra, 13 Cal.3d 804, 825.)

[4] Although in the academic literature "express assumption of risk" often has been designated as a separate, contract-based species of assumption of risk distinct from both primary and secondary assumption of risk (see, e.g., Prosser & Keeton on Torts (5th ed. 1984) § 68, p. 496), cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk. Thus in this respect express assumption of risk properly can be viewed as analogous to primary assumption of risk. One leading treatise describes express assumption of risk in the following terms: "In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.... The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence." (Prosser & Keeton on Torts, supra, § 68, pp. 480-481, fn. omitted, second italics added.)

Since Li, California cases uniformly have recognized that so long as an express assumption of risk agreement does not violate public policy (see, e.g., Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 95-101 [32 Cal. Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]), such an agreement operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff's cause of action. (See, e.g., Madison v. Superior Court (1988) 203 Cal. App.3d 589, 597-602 [250 Cal. Rptr. 299], and cases cited.)

[5] In addition to the sports setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the "firefighter's rule." (See Terhell v. American Commonwealth Associates (1985) 172 Cal. App.3d 434, 437 [218 Cal. Rptr. 256].) In its most classic form, the firefighter's rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. (See, e.g., Walters v. Sloan (1977) 20 Cal.3d 199, 202 [142 Cal. Rptr. 152, 571 P.2d 609].) Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. (See, e.g., Baker v. Superior Court (1982) 129 Cal. App.3d 710, 719-721 [181 Cal. Rptr. 311]; Nelson v. Hall (1985) 165 Cal. App.3d 709, 714 [211 Cal. Rptr. 668]. See generally 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 739, pp. 69-70 [discussing rule as one illustration of duty approach]; Anicet v. Gant (Fla. Dist. Ct. App. 1991) 580 So.2d 273, 276 ["a person specifically hired to encounter and combat particular dangers is owed no independent tort duty by those who have created those dangers...."].) Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk. This example again demonstrates that primary assumption of risk is not the same as "reasonable implied assumption of risk."

[6] Although Justice Mosk agrees that, in this context, a defendant's liability should be analyzed under a duty analysis, he is of the view that the "primary" and "secondary" assumption of risk terminology is potentially confusing and would prefer entirely to eliminate the doctrine of implied assumption of risk as a bar to recovery and simply to apply comparative fault principles to determine liability. (See conc. and dis. opn. by Mosk, J., post, pp. 321-322.) Because the Li decision, supra, 13 Cal.3d 804, 824-825, indicated that the preexisting assumption of risk doctrine was to be only partially merged into the comparative fault system, the analysis set forth in the present opinion (distinguishing between primary and secondary assumption of risk) in our view more closely reflects the Li holding than does Justice Mosk's proposal.

[7] As suggested by the cases described in the text, the limited duty of care applicable to coparticipants has been applied in situations involving a wide variety of active sports, ranging from baseball to ice hockey and skating. Because the touch football game at issue in this case clearly falls within the rationale of this rule, we have no occasion to decide whether a comparable limited duty of care appropriately should be applied to other less active sports, such as archery or golf. We note that because of the special danger to others posed by the sport of hunting, past cases generally have found the ordinary duty of care to be applicable to hunting accidents. (See, e.g., Summers v. Tice (1948) 33 Cal.2d 80, 83 [199 P.2d 1, 5 A.L.R.2d 91].)

[1] Plaintiff points to her request to the defendant during the game to temper his roughness to demonstrate that she did not assume the risk of being injured. She claims that defendant "seemed to acknowledge [her] statement" and "left [her] with the impression that he would play less rough." Plaintiff's reported request to defendant does not defeat summary judgment. She continued to play the game. As demonstrated below, she knew that physical contact and resulting injury could occur during a touch football game.

[1] Of the several Court of Appeal decisions that considered this issue, only one concluded that our adoption in Li of a system of comparative fault necessarily abolished the traditional defense of assumption of risk.

[2] In adopting a rule of no duty for organized competitive sports, the Massachusetts court candidly acknowledged that legislative abolition of the assumption of risk defense had forced it to shift the focus of analysis from the plaintiff's knowing confrontation of risk to the scope of the defendant's duty of care. (Gauvin v. Clark, supra, 537 N.E.2d at p. 97, fn. 5.)

4.2.2.5.2 Note to Knight v. Jewett 4.2.2.5.2 Note to Knight v. Jewett

*1261 There are more than 100 published cases defining what is and what is not an “active sport” qualifying for application of the doctrine of primary assumption of risk. “Since the decision in Knight, which involved a recreational game of touch football, our state Supreme Court and appellate courts have examined the applicability of the primary assumption of the risk defense in a wide variety of cases involving sports and recreational activities. In Ford [v. Gouin (1992) ] 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724 ..., the companion case to Knight, the Supreme Court expanded the doctrine and applied it to the noncompetitive, non-team sporting activity of waterskiing. The Supreme Court has applied the doctrine to other sports, including intercollegiate baseball ( **831 Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161[, 41 Cal.Rptr.3d 299, 131 P.3d 383] ), swimming (Kahn [v. East Side Union High School Dist. (2003) ] 31 Cal.4th [990,] 1004–1005[, 4 Cal.Rptr.3d 103, 75 P.3d 30] [examining coach's relationship to sport] ), and snow skiing (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067–1068[, 68 Cal.Rptr.2d 859, 946 P.2d 817]). [Citation.] The Courts of Appeal have applied the primary assumption of the risk rule in cases involving snow skiing (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8[, 45 Cal.Rptr.2d 855]), ‘off-roading’ with a motorcycle or ‘dune buggy’ (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1255, 1259–1265 [, 102 Cal.Rptr.2d 813]), skateboarding (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115–117[, 96 Cal.Rptr.2d 394]), figure ice skating (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632–1636[, 53 Cal.Rptr.2d 657]), and long-distance group bicycle riding (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1218–1223[, 130 Cal.Rptr.2d 198]), to name a few.” (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 878–879, 67 Cal.Rptr.3d 675 [primary assumption of risk applied to bar action for injury to passenger on jet ski].)

Kindrich v. Long Beach Yacht Club, 167 Cal. App. 4th 1252, 1261, 84 Cal. Rptr. 3d 824, 830–31 (2008)

4.2.2.5.3 Farnam v. State ("The Police Dog Bites Police Officer Case") 4.2.2.5.3 Farnam v. State ("The Police Dog Bites Police Officer Case")

How does this case relate to Knight v. Jewett? What about it makes it fall under an assumption of risk analysis?

Court of Appeal of the State of California

84 Cal. App. 4th 1448

No. G021552

2000-11-28

[No. G021552.

Fourth Dist., Div. Three.

Nov. 28, 2000.]

RONALD FARNAM, Plaintiff and Appellant, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents.

*1449Counsel

Gregory L. Bosse for Plaintiff and Appellant.

*1450Daniel E. Lungren and Bill Lockyer, Attorneys General, Richard J. Rojo, Martin Ageson and Barbara A. Noble, Deputy Attorneys General, for Defendants and Respondents.

Opinion

RYLAARSDAM, J.

A police dog handled by defendant, Joseph Morrison, a California Highway Patrol officer, bit plaintiff Ronald Farnam, a Los Alamitos police officer, at the scene of an arrest. Plaintiff sued Morrison and his agency, contending Morrison negligently handled the dog. We affirm the summary judgment in favor of defendants because primary assumption of risk (the firefighter’s rule) bars the claim.

Facts

After participating with other law enforcement agencies in the vehicular pursuit of a suspected felon, Morrison learned by radio the suspect had been stopped. Morrison, accompanied by his canine companion Barry, went to the scene of the attempted arrest. Upon his arrival, he stepped out of his vehicle, holding Barry by a choke collar. Thereafter, he discovered plaintiff standing by the suspect’s car with a gun pointed at the suspect.

Unfortunately, Barry mistook plaintiff for the villain, broke free of his handler, and bit plaintiff. Plaintiff then filed this action against Morrison and his employer. The trial court granted defendants’ summary judgment motion, concluding that public safety officers were shielded from liability under Government Code section 821.6, which creates an immunity caused by “instituting or prosecuting any judicial or administrative proceeding.”

After the parties had briefed the case, our Supreme Court decided Calatayud v. State of California (1998) 18 Cal.4th 1057 [77 Cal.Rptr.2d 202, 959 P.2d 360] (Calatayud) that addressed an almost identical scenario. We therefore directed the parties to file supplemental briefs analyzing the applicability of that case to the present one. We received and considered such briefs and conclude that under Calatayud, summary judgment was properly granted.

Discussion

Primary Assumption of Risk

In Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696], the California Supreme Court held, “In cases involving ‘primary *1451assumption of risk’—where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury— the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” (Id. at pp. 314-315.) Knight involved application of the primary assumption of risk doctrine in the context of a sports-related injury (touch football).

In addition to employment of the doctrine in sports settings, primary assumption of risk has been applied to work-related injuries, frequently under the label “firefighter’s rule.” This rule was first adopted in California in Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355 [72 Cal.Rptr. 119], but the seminal Supreme Court case to discuss this aspect of primary assumption of risk is Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532 [34 Cal.Rptr.2d 630, 882 P.2d 347] (Neighbarger).

In Neighbarger, safety employees at a refinery were injured in a fire and sued the maintenance company whose employees had allegedly started the fire. Relying on primary assumption of risk in the context of the firefighter’s rule, the appellate court sustained summary judgment in favor of the defendant. Although the Supreme Court found the rule did not apply to the facts of the case, it confirmed the existence of the firefighter’s rule, limiting the public’s duty of care to firefighters and police officers. Thus, “a member of the public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combat the fire is not injured thereby.” (Neighbarger, supra, 8 Cal.4th at p. 538.)

The Neighbarger court relied on Knight v. Jewett, supra, 3 Cal.4th 296, to reiterate that the firefighter’s rule is but an application of the doctrine of primary assumption of risk. (Neighbarger, supra, 8 Cal.4th at p. 538.) It noted that the circumstances under which the rule should be applied in a work-related setting are the same as in the sports setting, where, “because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care. [Citation.]” (Id. at p. 538.)

The appellation “firefighter’s rule” can be misleading because its application is not limited to situations involving fires or firefighting. (See, e.g., Hubbard v. Boelt (1980) 28 Cal.3d 480 [169 Cal.Rptr. 706, 620 P.2d 156] [police officer injured while attempting to arrest speeder barred from recovery by firefighter’s rule]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1765 [53 Cal.Rptr.2d 713] [nurse’s aide employed specifically to care for violent patient who attacked and injured her, could not recover because *1452patient owed no duty of care].) Additionally, what has been labeled the “veterinarian’s rule” is just another application of the firefighter’s rule in a different context. (Nelson v. Hall (1985) 165 Cal.App.3d 709, 714 [211 Cal.Rptr. 668] [veterinarian’s assistant bitten by dog being treated not entitled to recover damages due to acceptance of employment involving known risk].)

Test for Applying the Firefighter’s Rule

The language in some cases, including Neighbarger, appears to restrict the firefighter’s rule to conduct that necessitated summoning an officer. (Neighbarger, supra, 8 Cal.4th at p. 538.) But a review of the applications of the rule to specific facts in other cases demonstrates it is not so limited'. Rather, in the employment context, the rule has been applied to conduct in addition to that “which necessitated the summoning of the . . . officer.” (Ibid.) For example, the veterinarian cases: Nelson v. Hall, supra, 165 Cal.App.3d at page 714, Cohen v. McIntyre (1993) 16 Cal.App.4th 650 [20 Cal.Rptr.2d 143], and Willenberg v. Superior Court (1986) 185 Cal.App.3d 185 [229 Cal.Rptr. 625]. In none of these cases did the defendant’s conduct necessitate summoning the plaintiff. Instead, “the defendant [was] impliedly relieved of any duty of care by the plaintiff’s acceptance of employment involving a known risk or danger. [Citations.]” (Nelson v. Hall, supra, 165 Cal.App.3d at p. 714.)

Rather than restricting our inquiry to whether plaintiff was summoned due to defendant’s conduct, we must determine whether public policy considerations justify “exonerating defendants from their usual duty of care. . . .” (Neighbarger, supra, 8 Cal.4th at p. 539.) The policies enunciated in Neighbarger, Calatayud, and, most recently, City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269 [96 Cal.Rptr.2d 621] (City of Oceanside), support application of primary assumption of risk here.

The Calatayud Case

In Calatayud, supra, 18 Cal.4th 1057, a highway patrol officer, who was attempting to subdue a suspect, accidentally shot a city police officer who came to his assistance. The underlying facts are similar to ours; both incidents occurred in the course of an arrest, involved law enforcement officers from different agencies, and in neither case did the defendant’s conduct require summoning the plaintiff. In Calatayud, the victim came upon the scene intending to assist the arresting officers; here an officer who was about to come to the assistance of the arresting officer injured the latter.

The Calatayud court did not directly analyze the applicability of the firefighter’s rule; rather, it focused on whether a statutory exception to the *1453rule (Civ. Code, § 1714.9, subd. (a)(1)) applied. But the opinion implicitly supports the view that under its own facts and those in this case, the rule applies. At the outset, the opinion notes, “The question we must resolve is whether the firefighter’s rule or the statutory exception should govern the negligent officer's, and his employer’s, liability.” (Calatayud, supra, 18 Cal.4th at p. 1060.) In the face of this dichotomy, the court’s conclusion that the statutory exception did not apply (id. at p. 1072) necessarily leads to the conclusion that the firefighter’s rule governed. (Id. at p. 1060.)

The policy considerations discussed in Calatayud also compel the conclusion that the rule controls here. The opinion explains the firefighter’s rule and its rationale. (Calatayud, supra, 18 Cal.4th at pp. 1061-1063.) The court first gives a brief history of the development of the rule (id. at p. 1061), then explains that “[t]he undergirding legal principle of the rule is assumption of the risk,” and that “[t]he rule is equally grounded in considerations of public policy.” (Ibid.) Next, the court proceeds to analyze that policy. (Id. at pp. 1062-1063, 1068-1072.)

It is not necessary to repeat the court’s analysis in detail. Suffice it to summarize it as follows: Public safety employees are employed to handle the very hazard that causes the injury, and they receive special public compensation for being exposed to the dangers caused by the defendants’ negligence. The firefighter’s rule is founded on a public policy decision to compensate the officers collectively through tax-generated revenue and not through individual negligence actions which would overburden the courts. (Calatayud, supra, 18 Cal.4th at pp. 1062-1063.)

Calatayud also explains the public policy considerations supporting its decision that the statutory exception of Civil Code section 1714.9, subdivision (a)(1) should not be applied. (Calatayud, supra, 18 Cal.4th at pp. 1068-1072.) These policy considerations apply equally to a determination of whether primary assumption of risk applies in the first instance. Again, we need not repeat the Calatayud court’s detailed analysis but will merely summarize it: (1) A public safety officer’s primary responsibility is to protect the public; to impose a duty of care on one officer to another creates a substantial potential for conflicting duties, especially given the large number of possible defendants and the scope of liability; (2) joint operations involving public safety officers from different agencies are to be encouraged, and a failure to apply the firefighter’s rule “could seriously compromise public safety during joint operations” (id. at p. 1069); (3) failure to extend the rule to claims between officers from different agencies would fly in the face of a critical public policy underlying the firefighter’s rule, to spread the cost, and would cause an “adverse effect on the fisc” and “impair *1454efficient judicial administration” (id. at p. 1070; see Comment, The Fireman’s Rule: Defining Its Scope Using the Cost-Spreading Rationale (1983) 71 Cal. L.Rev. 218, 235-236); (4) to permit such claims would require resolution of “the propriety of chosen police tactics or emergency procedures and in reality may simply involve, a judgment call on the part of the officer who inadvertently inflicts injury”; and, (5) there is “no rational reason [for] liability to depend solely on whether the plaintiff and defendant wore different badges and uniforms when the risk of injury is the same.” (18 Cal.4th at pp. 1072.)

All of the policy reasons advanced to support the court’s refusal to apply the statutory exception to the firefighter’s rule apply support with equal force to a determination that the rule applies in the first instance.

The City of Oceanside Case

In City of Oceanside, supra, 81 Cal.App.4th 269, our colleagues in Division One of this district viewed the limitation that “ ‘[t]he [firefighter’s] rule does not apply to . . . independent acts of misconduct that are committed after the [public safety officer] has arrived on the scene’ ” as a common law exception to the rule. (Id. at p. 275.) Whether we accept this characterization or not, the issue remains the same: When one public safety officer injures another during their joint response to an emergency, may the former be liable to the latter? City of Oceanside supports the conclusion that the question must be answered in the negative. This is true even where the conduct of the defendant-officer did not occur until the plaintiff-officer arrived at the scene of the emergency.

In City of Oceanside, lifeguards employed by different agencies were involved in a rescue. One of them, apparently in a position of authority, directed another, employed by a second agency, to move into a dangerous position which subsequently resulted in her injuries. The injured lifeguard sued the one who had given her directions, arguing the firefighter’s rule did not apply because the alleged misconduct did not occur until after she had arrived on the scene. The court disagreed and applied primary assumption of risk in spite of this fact. In doing so, the court concluded that “Calatayud’s rationale for holding the [Civil Code] section 1714.9(a)(1) statutory exception inapplicable to actions between safety officers engaged in a joint operation applies equally to the common law independent acts exception.” (City of Oceanside, supra, 81 Cal.App.4th at p. 280.)

As did the Calatayud court, before reaching this conclusion the City of Oceanside court exhaustively considered the public policy considerations *1455underlying the firefighter’s rule and the need to extend it to situations such as those we consider here. We agree with this analysis and need not repeat those considerations.

Application of Neighbarger to the Facts of this Case

This brings us back to the basic tests of Neighbarger: “[T]he doctrine of assumption of risk properly bars a plaintiff’s claim only when it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care” (Neighbarger, supra, 8 Cal.4th at p. 538), and “public policy precludes] recovery for those who are injured by the very hazard they have been employed to confront.” (Id. at p. 539.) Here, there was an attempt to apprehend a felon, an activity that poses danger not only to the officer but also to the public. Plaintiff and defendant shared the objective to effect an arrest under these dangerous conditions. The duty of care the officers owed to the public under these circumstances precludes their owing a duty of care to each other. The hazard posed by the police dog is inherent in the activity the public hired plaintiff to perform. Thus, primary assumption of risk bars the claim.

Immunity Under Government Code Section 821.6?

The trial court granted summary judgment based on a determination that defendants were immune from liability under Government Code section 821.6, which covers injuries caused by “instituting or prosecuting any judicial or administrative proceeding.” Although we are inclined to agree with plaintiff that this statute does not apply to these facts, we need not decide the issue in light of our affirmance under the doctrine of primary assumption of risk.

Disposition

The judgment is affirmed. The parties shall bear their own respective costs.

Sills, P. J., concurred.

BEDSWORTH, J., Dissenting.

I wholeheartedly support the idea of immunizing public safety officers from liability for injuries suffered by an officer from a different agency *1456during a joint response. I like the result my colleagues have crafted, and would join them if I could discern some basis for their conclusion other than judicial fiat. However, I cannot find such a rule in Calatayud v. State of California (1998) 18 Cal.4th 1057 [77 Cal.Rptr.2d 202, 959 P.2d 360], and I believe creation of such an immunity is properly the role of the Legislature, not the Court of Appeal.

In Calatayud, the Supreme Court did not analyze the firefighter’s rule itself; instead it confined its opinion to determining whether Civil Code section 1714.9, a particular statutorily created exception to the rule, was applicable to public safety officers. The court’s holding was merely that the phrase “any person” in section 1714.9 was not intended to include other police officers, and thus the exception to the firefighter’s rule created by statute did not apply. Nothing in Calatayud changed the basic parameters of the firefighter’s rule.

In fact, Calatayud cites with approval the Supreme Court’s prior opinion in Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538 [34 Cal.Rptr.2d 630, 882 P.2d 347], in which the court notes that the protection afforded by the firefighter’s rule is fairly narrow: “ ‘The rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene.’ ” (Calatayud v. State of California, supra, 18 Cal.4th at p. 1063.) I’m unable to discern the nuance my colleagues find in that language. It seems clear to me and seems clearly applicable to our case.

Here, Morrison’s inadvertent release of his dog, which occurred long after Farnam was on the scene, cannot be construed as “conduct . . . which necessitated the summoning of [Farnam].” Consequently, Morrison’s conduct simply cannot be protected by the firefighter’s rule. Because the conduct is not governed by the rule in the first instance., it is immaterial whether, under Calatayud'' s analysis, a statutory exception to the rule should apply.

Given that the firefighter’s rule does not apply in this case, the issue boils down to whether this court should declare an immunity in favor of public safety officer which did not heretofore exist. I think not. It is the role of the Legislature to make the laws, and the role of the courts to interpret them. I hope the Legislature will act; unlike my colleagues, I am unwilling to do it myself.

*1457II

Because I do not believe this case can be resolved at this point based upon the firefighter’s rule, I must address the issue actually raised by the defendants, and upon which summary judgment was granted, i.e., the notion that Government Code section 821.6. (section 821.6) provides immunity to public employees for virtually all conduct committed in the course of investigating crime or apprehending criminals.

Section 821.6, enacted as part of the California Tort Claims Act, provides “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Farnam contends section 821.6 applies only to malicious prosecution, relying primarily upon Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719-720 [117 Cal.Rptr. 241, 527 P.2d 865].

In Sullivan, the Supreme Court evaluated the scope of section 821.6 and rejected the suggestion it provided immunity for falsely imprisoning someone past the appropriate term. Although the Sullivan court gave two reasons for its decision, it stated the “more important” reason was that “the history of section 821.6 demonstrates that the Legislature intended the section to protect public employees from liability only for malicious prosecution .... The Senate Committee comment to the section states that ‘The California courts have repeatedly held . . . public employees immune from liability for this sort of conduct. [Citing several California cases which deal with public employee immunity from malicious prosecution suits: White v. Towers (1951) 37 Cal.2d 727 [235 P.2d 209, 28 A.L.R.2d 636]; Coverstone v. Davies (1952) 38 Cal.2d 315 [239 P.2d 876]; Hardy v. Vial (1957) 48 Cal.2d 577 [311 P.2d 494, 66 A.L.R.2d 739] and one case dealing with public entity immunity for malicious prosecution: Dawson v. Martin (1957) 150 Cal.App.2d 379 [309 P.2d 915].] This section continues the existing immunity of public employees', and, because no statute imposes liability on public entities for malicious prosecution, public entities likewise are immune from liability.’ ” (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at pp. 719-720, second italics added, bracketed material added by Sullivan.)

Despite the Supreme Court’s suggestion that section 821.6 provides immunity only for malicious prosecution, several Courts of Appeal have concluded its scope is not strictly limited to that tort. Defendants rely upon those cases to argue that section 821.6 immunizes any act committed by an officer in the course of investigating crime or pursuing suspected criminals. I cannot agree.

*1458Although there is some overlap, the cases which extend section 821.6 beyond traditional malicious prosecution claims can be generally divided into two categories. First, some cases have held section 821.6 provides immunity not only for the judicial or administrative proceeding itself, but also includes any “essential step to the institution of the [proceeding] . . . .” (Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1436-1437 [246 Cal.Rptr. 609] [investigation and preliminary notice of proceedings before civil service commission were within the scope of “administrative proceeding” as used in § 821.6]; see also Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 494 [203 Cal.Rptr. 33] [publication of disciplinary action against doctor was part of disciplinary process]; Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283-284 [260 Cal.Rptr. 645] [inadequate investigation of child abuse was part of dependency proceeding]; Baughman v. State of California (1995) 38 Cal.App.4th 182 [45 Cal.Rptr.2d 82] [execution of search warrant was part of criminal proceeding].)

These cases do not really challenge the basic concept that section 821.6 addresses malicious prosecution; instead they merely clarify that a judicial or administrative proceeding encompasses much more than the act of filing charges. None of the cases, however, go so far as to hold that efforts to apprehend a suspect fall within the malicious prosecution definition of “initiating a judicial proceeding.”

The second line of cases does, however, conclude that section 821.6 immunity can apply in situations where a malicious prosecution action would not technically lie. In Johnson v. City of Pacifica (1970) 4 Cal.App.3d 82 [84 Cal.Rptr. 246], the plaintiff alleged the officers had negligently, but not maliciously, instituted proceedings. The court held the concluding language of section 821.6, which specifies the immunity applies “even if he acts maliciously and without probable cause,” implied the immunity also attached if the acts were not malicious. (Johnson, at p. 87.) In Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1210 [34 Cal.Rptr.2d 319], the court evaluated the policy underlying section 821.6, before concluding immunity applied even to damage claims made by one who was not the target of the judicial or administrative proceeding (and who would thus not have standing to bring a malicious prosecution claim). The court noted section 821.6 was prompted by the need to give officers the “ ‘ “free[dom] to act in the exercise of honest judgment uninfluenced by fear of consequences personal to themselves,” ’ . . .” (Amylou R. v. County of Riverside, supra, 28 Cal.App.4th at p. 1213, citation omitted) and reasoned that the danger of such influence was the same whether or not the person injured was the target of the proceeding.

The concept that section 821.6 immunity is intended to protect the ability of law enforcement officers to make judgment calls runs through many of *1459the cases, and was strongly emphasized by the Supreme Court in Sullivan. On this point, the Supreme Court quotes from an analysis by Professor Van Alstyne, whom it characterizes as “the principal architect of the California Tort Claims Act.” In that passage, Professor Van Alstyne explains that section 821.6 was intended to “ ‘codif[y] the recognized common law immunity of prosecutors and other law enforcement officers from malicious prosecution actions, in order to prevent interference with their discretionary and quasi-judicial responsibility for institution and prosecution of enforcement proceedings.’ ” (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at pp. 721-722, quoting Van Alstyne, Cal. Government Tort Liability Supplement (Cont.Ed.Bar 1969) § 5.63, pp. 24-25, italics added.) Van Alstyne makes clear that section 821.6 was not designed to immunize inadvertent conduct such as failing to release a prisoner, and specifically distinguishes such conduct from the type “ ‘of discretionary determination . . . which the immunity was designed to safeguard.’ ” (12 Cal.3d at pp. 721-722.)

Indeed, in each of the cases discussed above, the acts which allegedly caused injury were indisputably intentional acts of judgment. In some cases, the acts were allegedly prompted by a malicious intent to injure (e.g., in Amylou R. v. County of Riverside, supra, 28 Cal.App.4th 1205, the defendants were alleged to have made intimidating and defamatory statements about the plaintiff, a rape victim, because she was not sufficiently cooperative), while in others, the acts were allegedly the product of negligence (e.g., in Jenkins v. County of Orange, supra, 212 Cal.App.3d 278, the decision to institute dependency proceedings was allegedly the product of an inadequate investigation). Baughman v. State of California, supra, 38 Cal.App.4th 182, is the only case in which the facts do not make clear whether the act complained of was intentional, and it is illuminating.

In Baughman, the defendants destroyed computer disks belonging to the plaintiff in the course of executing a search warrant. The plaintiff sued for conversion, thereby alleging the destruction was intentional. At the conclusion of the plaintiff’s case-in-chief, the trial court expressed the belief the conversion claim was immunized by section 821.6, and the plaintiff consequently dismissed the conversion claim, but was given leave to amend his complaint to conform to proof of negligence (i.e., unintentional destruction). Thus, the trial court in Baughman drew a clear distinction between an intentional destruction claim, which it felt would be immunized, and an unintentional destruction claim, which could proceed to the jury. Unfortunately, the Court of Appeal itself did not get an opportunity to evaluate how section 821.6 applied to the unintentional destruction, because the jury returned a verdict for the defendants on that claim. The appeal concluded only that section 821.6 should be applied to the conversion (intentional *1460destruction) claim. (Baughman v. State of California, supra, 38 Cal.App.4th at pp. 190-193.) Nonetheless, in my view, the trial court drew the appropriate distinction.

The purpose of section 821.6, to protect the ability of government employees to act upon their judgments without fear of personal consequences, applies only where the employee is making a conscious decision to act (or not act) that might be affected by extrinsic personal considerations. But in the instant case, unlike the cases discussed above, Farnam’s injury was not the product of an intentional act by Morrison. Instead, by all accounts, Morrison had no intention of releasing Barry; it was simply a mistake. And such mistakes, devoid of any thought process at all, are neither affected by the prospect of immunity nor should they be promoted by it. Consequently, the immunity of section 821.6 should not be applied where, as here, the act which caused the damage was not intentional.

My conclusion that Government Code section 821.6 is not intended to cover Farnam’s injury is also bolstered by Civil Code section 3342, which provides strict liability for dog bites. Although as defendants point out that Civil Code section 3342 exempts dog bites by police dogs in the course of their work (Civ. Code, § 3342, subd. (b)), they neglect to mention the exemption applies only if the person bitten is “a party to [or] participant in, [or] suspected to be a party to or a participant in, the act or acts that prompted the use of the dog . . . .” (Civ. Code, § 3342, subd. (c).)1 By that latter provision, the Legislature has made clear it intends police agencies to escape liability for their dogs’ bites only when the person bitten is the suspected wrongdoer.

In light of the Legislature’s very specific provision of strict liability for dog bites (including police dogs that bite someone other than the suspect), I can hardly conclude they intended to immunize that same damage through a broad interpretation of section 821.6. (See San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577 [7 Cal.Rptr.2d 245, 828 P.2d 147], quoting Rose v. State of California (1942) 19 Cal.2d 713, 723-724 [123 P.2d 505] [“ ‘It is well settled . . . that a general prevision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing *1461alone, woud be broad enough to include the subject to which the more particular provision relates.’ ”].)

I would reverse the summary judgment, remanding the case for further proceedings, and the legal lacuna which concerns my brethren for legislation.

Appellant’s petition for review by the Supreme Court was denied February 28, 2001. Mosk, J., was of the opinion that the petition should be granted.

4.3 Breach of Duty 4.3 Breach of Duty

4.3.1 General Unreasonableness -- Economic or Not? 4.3.1 General Unreasonableness -- Economic or Not?

4.3.1.1 United States v. Carroll Towing Co. ("The Hand Formula Case") 4.3.1.1 United States v. Carroll Towing Co. ("The Hand Formula Case")

The judge in this case is the famous Learned (yes, that's his first name) Hand (yes, that's his last name). He offers a formula, and it's been named as his formula. What is it, and what is it supposed to tell a court?

159 F.2d 169 (1947)

UNITED STATES et al.
v.
CARROLL TOWING CO., Inc., et al.

Nos. 96, 97, Dockets 20371, 20372.

Circuit Court of Appeals, Second Circuit.

January 9, 1947.

170 *170 Robert S. Erskine and Kirlin, Campbell, Hickox & Keating, all of New York City (John H. Hanrahan, of New York City, of counsel), for Grace Line, Inc.

Edmund F. Lamb and Purdy & Lamb, all of New York City, for Conners Marine Co., Inc.,

Christopher E. Heckman and Foley & Martin, all of New York City, for Carroll Towing Co., Inc.

Frederic Conger and Burlingham, Veeder, Clark & Hupper, all of New York City (Chauncey I. Clark, of New York City, of counsel), for Pennsylvania Railroad Company.

Before L. HAND, CHASE and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

These appeals concern the sinking of the barge, "Anna C," on January 4, 1944, off Pier 51, North River. The Conners Marine Co., Inc., was the owner of the barge, which the Pennsylvania Railroad Company had chartered; the Grace Line, Inc., was the charterer of the tug, "Carroll," of which the Carroll Towing Co., Inc., was the owner. The decree in the limitation proceeding held the Carroll Company liable to the United States for the loss of the barge's cargo of flour, and to the Pennsylvania Railroad Company, for expenses in salving the cargo and barge; and it held the Carroll Company also liable to the Conners Company for one half the damage to the barge; these liabilities being all subject to limitation. The decree in the libel suit held the Grace Line primarily liable for the other half of the damage to the barge, and for any part of the first half, not recovered against the Carroll Company because of limitation of liability; it also held the Pennsylvania Railroad secondarily liable for the same amount that the Grace Line was liable. The Carroll Company and the Pennsylvania Railroad Company have filed assignments of error.

The facts, as the judge found them, were as follows. On June 20, 1943, the Conners Company chartered the barge, "Anna C," to the Pennsylvania Railroad Company at a stated hire per diem, by a charter of the kind usual in the Harbor, which included the services of a barge, apparently limited to the hours 8 A.M. to 4 P.M. On January 2, 1944, the barge, which had lifted the cargo of flour, was made fast off the end of Pier 58 on the Manhattan side of the North River, whence she was later shifted to Pier 52. At some time not disclosed, five other barges were moored outside her, extending into the river; her lines to the pier were not then strengthened. At the end of the next pier north (called the Public Pier), lay four barges; and a line had been made fast from the outermost of these to the fourth barge of the tier hanging to Pier 52. The purpose of this line is not entirely apparent, and in any event it obstructed entrance into the slip between the two tiers of barges. The Grace Line, which had chartered the tug, "Carroll," sent her down to the locus in quo to "drill" out one of the barges which lay at the end of the Public Pier; and in order to do so it was necessary to throw off the line between the two tiers. On board the "Carroll" at the time were not only her master, but a "harbormaster" employed by the Grace Line. Before throwing off the line between the two tiers, the "Carroll" nosed up against the outer barge of the tier lying off Pier 52, ran a line from her own stem to the middle bit of that barge, and kept working her engines "slow ahead" against the ebb tide which was making at that time. The captain of the "Carroll" put a deckhand and the "harbormaster" on the barges, told them to throw off the line which barred the entrance to the slip; 171 *171 but, before doing so, to make sure that the tier on Pier 52 was safely moored, as there was a strong northerly wind blowing down the river. The "harbormaster" and the deckhand went aboard the barges and readjusted all the fasts to their satisfaction, including those from the "Anna C," to the pier.

After doing so, they threw off the line between the two tiers and again boarded the "Carroll," which backed away from the outside barge, preparatory to "drilling" out the barge she was after in the tier off the Public Pier. She had only got about seventy-five feet away when the tier off Pier 52 broke adrift because the fasts from the "Anna C," either rendered, or carried away. The tide and wind carried down the six barges, still holding together, until the "Anna C" fetched up against a tanker, lying on the north side of the pier below — Pier 51 — whose propeller broke a hole in her at or near her bottom. Shortly thereafter: i. e., at about 2:15 P.M., she careened, dumped her cargo of flour and sank. The tug, "Grace," owned by the Grace Line, and the "Carroll," came to the help of the flotilla after it broke loose; and, as both had syphon pumps on board, they could have kept the "Anna C" afloat, had they learned of her condition; but the bargee had left her on the evening before, and nobody was on board to observe that she was leaking. The Grace Line wishes to exonerate itself from all liability because the "harbormaster" was not authorized to pass on the sufficiency of the fasts of the "Anna C" which held the tier to Pier 52; the Carroll Company wishes to charge the Grace Line with the entire liability because the "harbormaster" was given an over-all authority. Both wish to charge the "Anna C" with a share of all her damages, or at least with so much as resulted from her sinking. The Pennsylvania Railroad Company also wishes to hold the barge liable. The Conners Company wishes the decrees to be affirmed.

The first question is whether the Grace Line should be held liable at all for any part of the damages. The answer depends first upon how far the "harbormaster's" authority went, for concededly he was an employee of some sort. Although the judge made no other finding of fact than that he was an "employee," in his second conclusion of law he held that the Grace Line was "responsible for his negligence." Since the facts on which he based this liability do not appear, we cannot give that weight to the conclusion which we should to a finding of fact; but it so happens that on cross-examination the "harbormaster" showed that he was authorized to pass on the sufficiency of the fasts of the "Anna C." He said that it was part of his job to tie up barges; that when he came "to tie up a barge" he had "to go in and look at the barges that are inside the barge" he was "handling"; that in such cases "most of the time" he went in "to see that the lines to the inside barges are strong enough to hold these barges"; and that "if they are not" he "put out sufficient other lines as are necessary." That does not, however, determine the other question: i. e., whether, when the master of the "Carroll" told him and the deckhand to go aboard the tier and look at the fasts, preparatory to casting off the line between the tiers, the tug master meant the "harbormaster" to exercise a joint authority with the deckhand. As to this the judge in his tenth finding said: "The captain of the Carroll then put the deckhand of the tug and the harbor master aboard the boats at the end of Pier 52 to throw off the line between the two tiers of boats after first ascertaining if it would be safe to do so." Whatever doubts the testimony of the "harbormaster" might raise, this finding settles it for us that the master of the "Carroll" deputed the deckhand and the "harbormaster," jointly to pass upon the sufficiency of the "Anna C's" fasts to the pier. The case is stronger against the Grace Line than Rice v. The Marion A. C. Meseck,^[1] was against the tug there held liable, because the tug had only acted under the express orders of the "harbormaster." Here, although the relations were reversed, that makes no difference in principle; and the "harbormaster" was not instructed what he should do about the fasts, but was allowed 172 *172 to use his own judgment. The fact that the deckhand shared in this decision, did not exonerate him, and there is no reason why both should not be held equally liable, as the judge held them.

We cannot, however, excuse the Conners Company for the bargee's failure to care for the barge, and we think that this prevents full recovery. First as to the facts. As we have said, the deckhand and the "harbormaster" jointly undertook to pass upon the "Anna C's" fasts to the pier; and even though we assume that the bargee was responsible for his fasts after the other barges were added outside, there is not the slightest ground for saying that the deckhand and the "harbormaster" would have paid any attention to any protest which he might have made, had he been there. We do not therefore attribute it as in any degree a fault of the "Anna C" that the flotilla broke adrift. Hence she may recover in full against the Carroll Company and the Grace Line for any injury she suffered from the contact with the tanker's propeller, which we shall speak of as the "collision damages." On the other hand, if the bargee had been on board, and had done his duty to his employer, he would have gone below at once, examined the injury, and called for help from the "Carroll" and the Grace Line tug. Moreover, it is clear that these tugs could have kept the barge afloat, until they had safely beached her, and saved her cargo. This would have avoided what we shall call the "sinking damages." Thus, if it was a failure in the Conner Company's proper care of its own barge, for the bargee to be absent, the company can recover only one third of the "sinking" damages from the Carroll Company and one third from the Grace Line. For this reason the question arises whether a barge owner is slack in the care of his barge if the bargee is absent.

As to the consequences of a bargee's absence from his barge there have been a number of decisions; and we cannot agree that it is never ground for liability even to other vessels who may be injured. As early as 1843, Judge Sprague in Clapp v. Young,^[2] held a schooner liable which broke adrift from her moorings in a gale in Provincetown Harbor, and ran down another ship. The ground was that the owners of the offending ship had left no one on board, even though it was the custom in that harbor not to do so. Judge Tenney in Fenno v. The Mary E. Cuff,^[3] treated it as one of several faults against another vessel which was run down, to leave the offending vessel unattended in a storm in Port Jefferson Harbor. Judge Thomas in The On-the-Level,^[4] held liable for damage to a stake-boat, a barge moored to the stake-boat "south of Liberty Light, off the Jersey shore," because she had been left without a bargee; indeed he declared that the bargee's absence was "gross negligence." In the Kathryn B. Guinan,^[5] Ward, J., did indeed say that, when a barge was made fast to a pier in the harbor, as distinct from being in open waters, the bargee's absence would not be the basis for the owner's negligence. However, the facts in that case made no such holding necessary; the offending barge in fact had a bargee aboard though he was asleep. In the Beeko,^[6] Judge Campbell exonerated a power boat which had no watchman on board, which boys had maliciously cast loose from her moorings at the Marine Basin in Brooklyn and which collided with another vessel. Obviously that decision has no bearing on the facts at bar. In United States Trucking Corporation v. City of New York,^[7] the same judge refused to reduce the recovery of a coal hoister, injured at a foul berth, because the engineer was not on board; he had gone home for the night as was apparently his custom. We reversed the decree,^[8] but for another reason. In The Sadie,^[9] we affirmed Judge Coleman's holding^[10] that it was actionable negligence to leave without a bargee on board a barge made fast outside another barge, in the face of storm warnings. The damage was done to the 173 *173 inside barge. In The P. R. R. No. 216,^[11] we charged with liability a lighter which broke loose from, or was cast off, by a tanker to which she was moored, on the ground that her bargee should not have left her over Sunday. He could not know when the tanker might have to cast her off. We carried this so far in The East Indian,^[12] as to hold a lighter whose bargee went ashore for breakfast, during which the stevedores cast off some of the lighter's lines. True, the bargee came back after she was free and was then ineffectual in taking control of her before she damaged another vessel; but we held his absence itself a fault, knowing as he must have, that the stevedores were apt to cast off the lighter. The Conway No. 23^[13] went on the theory that the absence of the bargee had no connection with the damage done to the vessel itself; it assumed liability, if the contrary had been proved. In The Trenton,^[14] we refused to hold a moored vessel because another outside of her had overcharged her fasts. The bargee had gone away for the night when a storm arose; and our exoneration of the offending vessel did depend upon the theory that it was not negligent for the bargee to be away for the night; but no danger was apparently then to be apprehended. In Bouker Contracting Co. v. Williamsburgh Power Plant Corporation^[15], we charged a scow with half damages because her bargee left her without adequate precautions. In O'Donnell Transportation Co. v. M. & J. Tracy,^[16] we refused to charge a barge whose bargee had been absent from 9 A.M. to 1:30 P.M., having "left the vessel to go ashore for a time on his own business."

It appears from the foregoing review that there is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others, obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i. e., whether B > PL. Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee's prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a bargee must be aboard at night at all; it may be that the custom is otherwise, as Ward, J., supposed in "The Kathryn B. Guinan," supra;^[17] and that, if so, the situation is one where custom should control. We leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee's absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. In the case at bar the bargee left at five o'clock in the afternoon of January 3rd, and the flotilla broke away at about two o'clock in the afternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time, and we hold that his fabricated story was affirmative evidence 174 *174 that he had no excuse for his absence. At the locus in quo — especially during the short January days and in the full tide of war activity — barges were being constantly "drilled" in and out. Certainly it was not beyond reasonable expectation that, with the inevitable haste and bustle, the work might not be done with adequate care. In such circumstances we hold — and it is all that we do hold — that it was a fair requirement that the Conners Company should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight.

The decrees will be modified as follows. In the libel of the Conners Company against the Pennsylvania Railroad Company in which the Grace Line was impleaded, since the Grace Line is liable in solido, and the Carroll Company was not impleaded, the decree must be for full "collision damages" and half "sinking damages," and the Pennsylvania Railroad Company will be secondarily liable. In the limitation proceeding of the Carroll Company (the privilege of limitation being conceded), the claim of the United States and of the Pennsylvania Railroad Company will be allowed in full. Since the claim of the Conners Company for "collision damages" will be collected in full in the libel against the Grace Line, the claim will be disallowed pro tanto. The claim of the Conners Company for "sinking damages" being allowed for one half in the libel, will be allowed for only one sixth in the limitation proceeding. The Grace Line has claimed for only so much as the Conners Company may recover in the libel. That means that its claim will be for one half the "collision damages" and for one sixth the "sinking damages." If the fund be large enough, the result will be to throw one half the "collision damages" upon the Grace Line and one half on the Carroll Company; and one third of the "sinking damages" on the Conners Company, the Grace Line and the Carroll Company, each. If the fund is not large enough, the Grace Line will not be able altogether to recoup itself in the limitation proceeding for its proper contribution from the Carroll Company.

Decrees reversed and cause remanded for further proceedings in accordance with the foregoing.

[1] 2 Cir., 148 F.2d 522.

[2] Fed.Cas.No. 2786.

[3] D.C., 84 F. 719.

[4] D.C., 128 F. 511.

[5] 2 Cir., 176 F. 301.

[6] D.C., 10 F.2d 884.

[7] D.C., 14 F.2d 528.

[8] 2 Cir., 18 F.2d 775.

[9] 2 Cir., 62 F.2d 1076.

[10] D.C., 57 F.2d 908.

[11] 56 F.2d 604.

[12] 2 Cir., 62 F.2d 242.

[13] 2 Cir., 64 F.2d 121.

[14] 2 Cir., 72 F.2d 283.

[15] 2 Cir., 130 F.2d 96, 98.

[16] 2 Cir., 150 F.2d 735, 738.

[17] 2 Cir., 176 F.2d 301.

4.3.1.2 Mackey v. Allen ("The Trick Door Case") 4.3.1.2 Mackey v. Allen ("The Trick Door Case")

Kentucky Court of Appeals

396 S.W.2d 55

1965-05-07

Roberta B. MACKEY et al., Appellants, v. George S. ALLEN et al., Appellees.

Court of Appeals of Kentucky.

May 7, 1965.

Rehearing Denied Dee. 17, 1965.

*56Herman E. Frick, Louisville, for appellants.

William Mellor, Louis N. Garlove, Carl J. Bensinger, Henry D. Hopson, Hamilton, Hopson & Hamilton, Louisville, for appel-lees.

PALMORE, Judge.

Early in the afternoon of December 15, 1961, Mrs. Roberta B. Mackey was having her hair dressed at Ken’s Beauty Salon on Central Avenue in Louisville. One of the young ladies employed in the shop became ill and Dr. Kenneth Hodge was summoned from the Central Medical Clinic, located diagonally across the street. At his request Mrs. Adams, proprietor of the beauty shop, got her automobile and transported the young lady over to the clinic. Mrs. Adams did not return at once to the beauty shop. Meanwhile, customers began to arrive pursuant to their appointments with her and the lady who had been taken ill, and the operator who had completed the job begun *57on Mrs. Mackey’s hair by Mrs. Adams asked Mrs. Mackey if she would be kind enough, on leaving, to go over to the clinic and find out from Mrs. Adams whether the customers should be asked to wait or to make new appointments. Mrs. Mackey obliged, and went over to the clinic for that purpose. She had never been there before. There were two identical doors side by side (five or six feet apart) under a canopy or marquee bearing the name “Central Medical Clinic.” The left door actually was the only entrance to the clinic. The right door opened directly from a sidewalk outside of the building into an unlighted stairway leading to a storage area in the basement. Assuming that both doors entered the clinic Mrs. Mackey opened the one to the right and stepped inside, all in one continuous motion. She landed at the foot of the stairs and was injured.

The building in which the accident occurred was owned by George S. and Helen W. Allen and occupied by two tenants, Arthur J. Voss, d/b/a Voss Pharmacy, and Central Medical Clinic, a partnership consisting of Dr. Hodge and Dr. Stuart Cohen. The basement storage area into which Mrs. Mackey fell was used by both Voss and the clinic. Each had a key to the door in question, --’hich ordinarily was kept locked. Within two hours or so before Mrs. Mack-ey’s accident a quantity of merchandise ordered by Voss had been delivered by two employes of Our Own Deliveries, Inc. Voss unlocked the door to the basement and directed the delivery men to store the packages below. When the delivery men left, they pulled the door to but did not lock it. In Voss’ own words, “I opened the door to the basement for a delivery from Gould’s Wholesale Supply House. I went back in the drug store and got busy and' forgot to check to see if the basement door had been locked after the delivery boy left. I didn’t tell the delivery boy to lock the door after he completed his delivery. * * I left the store about one-thirty and returned to my home, and I got a call — I forget whether I called the store or whether they called me and told me that someone had fallen down the basement stairway.”

In this action Mrs. Mackey sued Voss, the Allens, the doctors, and the delivery company for her personal injuries and damages. Her husband joined a claim against the same defendants for loss of consortium. After the taking of depositions the trial court sustained motions for summary judgment by the Allens and the doctors. At the close of the evidence for the plaintiffs a verdict was directed in favor of the remaining defendants, Voss and the delivery company. The Mackeys appeal.

As pointed out in a very able summary delivered by the trial court in passing on the motions for directed verdict, the facts of the case are virtually undisputed. Further details will be provided as our discussion relates to each defendant or set of defendants.

1. Central Medical Clinic.

In his deposition Dr. Hodge admitted that another lady, a Mrs. Showalter, had mistakenly entered the same door and fallen down the same stairway about a month before Mrs. Mackey’s accident. Following Mrs. Showalter’s fall he and Dr. Cohen actually discussed the advisability of putting up some kind of sign to prevent further accidents of the same nature. This evidence, we believe, with an appropriate admonition limiting its purpose, would have been admissible against the doctors to show their knowledge of the dangerous condition, hence the foreseeability of the accident. 38 Am.Jur. 1012-1014 (Negligence § 314); Louisville & N. R. Co. v. Jackson’s Adm’r, 250 Ky. 92, 61 S.W.2d 1104 (1933); O’Neil & Hearne v. Bray’s Adm’x, 262 Ky. 377, 90 S.W.2d 353, 356 (1936). In the absence of evidence to the contrary, Dr. Hodge’s deposition concerning the previous accident was sufficient to indicate its having occurred under substantially similar circumstances.

In the briefs much discussion has been devoted to the technical status of Mrs. *58Mackey, whether she was an invitee, licensee, or trespasser. We are inclined to regard her as a business invitee of the clinic, because her visit to the premises was “for the convenience or arose out of the necessities” of another person who definitely was in the clinic for purposes of the possessor’s business, that other person being Mrs. Adams. Cf. Restatement of Torts, § 332, Comment d. The principle that a business invitee’s guest is also an invitee was recognized in City of Madisonville v. Poole, Ky., 249 S.W.2d 133 (1952), and the Restatement of Torts has been cited repeatedly by this court as a reliable source of authority on this general subject. Cf. Kentucky & West Virginia Power Co. v. Stacy, 291 Ky. 325, 164 S.W.2d 537, 170 A.L.R. 1 (1942).

Certainly Mrs. Mackey was not a trespasser, and it really makes no difference whether she was an invitee or a bare licensee, because the basic distinction between the duties of the possessor is that he owes an invitee the duty of discovering a dangerous condition, whereas he owes a licensee only the duty to warn him of a dangerous condition already known to the possessor. Kentucky & West Virginia Power Co. v. Stacy, supra. If the possessor is aware of a condition involving unreasonable risk to the licensee and by the exercise of ordinary care should foresee that the licensee will not discover it or realize the risk, he has at least a duty to warn him. Coleman v. Baker, Ky., 382 S.W.2d 843, 848 (1964). In this case it is beyond cavil that the doctors knew of the dangerous condition.

It is true that there was no intent on the part of the doctors to invite people into the basement. But the extension over their marquee and sign over both doors gave the appearance of inviting entry through either. That circumstance alone distinguishes the case from Farmer v. Modern Motors Co., 235 Ky. 483, 31 S.W.2d 716 (1930), and Illinois Cent. R. Co. v. Sanderson, 175 Ky. 11, 192 S.W. 869, L.R.A. 1917D (1917). In neither of those cases was there a sign on or over the door to suggest that it was an entrance to the visitor’s intended destination. It is our opinion that an apparent invitation must be equated with an invitation in fact.

The negligence of Voss in causing the basement door to be left unlocked was not an independent act superseding the negligence of the clinic under the principles stated in Brown Hotel v. Levitt, 306 Ky. 804, 209 S.W.2d 70 (1948), and Bengold Properties Inc. v. Crook, Ky., 377 S.W.2d 56 (1964), unless it was an act the members of the clinic could not reasonably have been expected to foresee. This appears to be a deviation from the familiar rule that a person is not bound to anticipate the negligence of another, but it is well settled nevertheless. Hines v. Westerfield, Ky., 254 S.W.2d 728 (1953). We quote the Restatement of Torts, § 447, as follows:

“The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about if

“(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

“(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

“(c) the intervening act is a normal response to a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.”

The doctors knew that Mrs. Showalter’s accident also had happened as the result of a failure by Voss to lock the door to the basement. That they did in fact realize he might do the same thing again is estab*59lished conclusively by the express admissions of Dr. Hodge in relating the ensuing discussion with Dr. Cohen.

We are not persuaded that Mrs. Mackey was contributorily negligent as a matter of law. She walked out of the bright sunlight of mid-day into the comparative darkness of an unlighted staircase reasonably expecting a floor to be there. There was neither floor nor platform. She had no opportunity to realize she might have entered the wrong door or to appreciate the existence of danger, as did the injured plaintiff in Illinois Cent. R. Co. v. Sanderson, 175 Ky. 11, 192 S.W. 869 (1917). Whether she exercised ordinary care for her own safety in choosing the door to the right, and in the manner in which she entered it, is properly a question for the jury. Cf. Phelps Roofing Company v. Johnson, Ky., 368 S.W.2d 320, 324 (1963).

It is our conclusion on this phase of the case that the clinic was negligent as a matter of law, and that if the evidence produced at a trial be substantially the same the jury should be required to determine only the questions of contributory negligence and damages.

2. Voss.

We reach the same conclusion with respect to Voss. He and the clinic shared the use of the basement door. They had the only keys to it. He knew the clinic sign was over the door. He was as well able as were the members of the clinic to foresee the probable consequences. His knowledge that the sign gave the appearance of an invitation to enter his door puts him in the same position as if he had shared in the invitation. If he did not want people to act on the strength of that ostensible invitation he should have kept the door locked. By sharing in the occupancy and possession of the basement he shared in the responsibility of exercising ordinary care to see that the invitees or licensees of his co-possessor were not lured into a trap known to him but concealed to them.

As a matter of fact, Voss also knew of Mrs. Showalter’s fall down this same stairway. The evidence was excluded by the trial court because Voss did not know that the circumstances were similar. We think this was a hypertechnical result. The doctors had advised him of Mrs. Showalter’s accident. In the usual course of human events people do not fall down stairways on purpose. The very fact that a lady had fallen down the stairs was enough to put a reasonably prudent man on notice that it was not safe to leave the door unlocked.

3. The Allens (landlord).

The lease to Voss specifically covered two-thirds of the basement. The lease to the clinic made no reference to the basement. Nevertheless, the understanding among the parties was that it was in the exclusive possession of the two tenants. The Allens did not have a key to the door in question. Mr. Allen visited the premises once a month when he came around to collect the rents, and on these occasions he usually borrowed a key from one of the tenants and went down into the basement for the purpose of cleaning it up, though he had no duty to do so.

When a landlord retains control of a portion of the leased premises for the common use of two or more tenants he is responsible for the condition of the part so retained. 32 Am Jur. 561-562 (Landlord and Tenant, § 688). In Primus v. Bellevue Apartments, 241 Iowa 1055, 44 N.W.2d 347, 25 A.L.R. 565 (1950), it was said that in the absence of proof to the contrary a landlord is presumed to have retained control over premises used in common by his different tenants. See also Starks Building Co. v. Eltinge, Ky., 269 S.W.2d 240, 242 (1954). Be that as it may, we think such a presumption would be conclusively rebutted by the circumstances of this case. At the time Mrs. Mackey was injured the exclusive control *60of the basement and its entrance lay jointly in Voss and the clinic.

The Allens were entitled to their summary judgment.

4. Our Own Deliveries, Inc.

The legal position of the delivery company is not free of doubt. Its employes did participate in the act, or omission, of the door’s being left unlocked. See Brown Hotel Company, Inc. v. Sizemore, 303 Ky. 431, 197 S.W.2d 911 (1946), recognizing the liability of a deliveryman for insecurely replacing the cover of a manhole in a public alley. In this instance the door was equipped with an inside push-button type of lock, though the delivery men did not actually notice that fact. They could have asked Voss whether they should lock the door when they finished their job. They could also have notified him when they left. On the other hand, they were on the premises for only 10 to 15 minutes at the most, and neither of them had ever been in the basement before. An ordinary workman employed on a delivery truck can hardly be expected to exercise a great deal of independent judgment beyond what he is told to do. We think it would be unreasonable to find that these two men should have appreciated the risk to third persons that would result from their failure to see that the door was locked, much less to recognize an affirmative responsibility to prevent it. The Brown Hotel Company-Sizemore case is distinguishable on the ground that the delivery man in that instance knew very well that he was to replace the manhole cover securely and is bound to have been fully aware of the probable consequences of a failure to do so.

We think the action of the trial court in directing a verdict for the delivery company was correct.

The cause is affirmed as to the appellees George S. Allen, Helen W. Allen, and Our Own Deliveries, Inc. As to the appellees Hodge, Cohen, and Voss it is reversed for further proceedings consistent with this opinion.

4.3.1.3 Barker v. City of Philadelphia ("The Tragic Kid Crushing Case") 4.3.1.3 Barker v. City of Philadelphia ("The Tragic Kid Crushing Case")

United States District Court for the Eastern District of Pennsylvania

134 F. Supp. 231

Civ. A. No. 14685

1955-08-31

Dolores BARKER, Administratrix of the Estate of Robert P. Ebbecke, Deceased, v. CITY OF PHILADELPHIA, Room 202, City Hall, Philadelphia, Pennsylvania.

Civ. A. No. 14685.

United States District Court E. D. Pennsylvania.

Aug. 31, 1955.

*232John R. McConnell (of Morgan, Lewis & Bockius), Philadelphia, Pa., for plaintiff.

Abraham L. Freedman, Philadelphia, Pa., for defendant.

LORD, District Judge.

This action was instituted by Dolores Barker,' administratrix of the estate of Robert P. Ebbecke, deceased, to recover damages under the Wrongful Death, 12 P.S. §§ 1601 et seq., and Survival Statutes of Pennsylvania, 20 P.S. ch. 3 Appendix, § 771, for' the death of Robert P. Ebbecke, a minor, on August 18, 1952. Plaintiff alleged the minor’s death resulted from the negligent operation of one of the City of Philadelphia’s trash trucks.

The case was tried before a jury and resulted in verdicts in favor of the estate and the parents of the deceased minor. Defendant has filed the present motion to set aside the verdicts and for judgment n. o. v. •

The question is; Should a prudent or reasonably cautious man have foreseen that the alleged negligent act of defendant would result in the injury sustained?

The accident occurred in a densely populated section of the City of Phila*233delphia. The City maintained a garage for its trash trucks approximately one and one-half blocks from the scene of the accident. The street on which the garage is situated- is the- same street on which the- misfortune occurred. The trucks used' this street regularly in traveling to- and from the garage. As a- result of such use, the drivers of the trucks were thoroughly familiar with the fact that this was a neighborhood of children.

On the east side of 'the block where the accident occurred is a vacant lot which attracts' children from time to time. On the west side of the same block is a City playground whére at- the time of the accident, “quite a- gang of” children were playing.

On the afternoon of the accident, the driver of the City’s truck was proceeding down this street to the garage. As he-approached the scene where the accident occurred, he came upon another City truck double-parked in the street and headed in the same direction. The driver of the double-parked vehicle motioned that it was all right to proceed around him. Thereupon, the driver of the City-truck which was in motion turned out into the extreme left-hand side of the street, in attempting to pass the City vehicle which was parked. While doing, so, the driver noticed a huge piece of brown wrapping paper approximately six feet in diameter and two or three feet in height. This paper was lying' partially in the gutter and partially on the curb on the east side of the street. The driver stated he .did not desire to run over the paper because it might contain broken bottles and thus injure the tires of the truck. He attempted to avoid it by judging the distance between the paper and the City trash truck that was double-parked. After endeavoring to pass between these two objects, he then proceeded on to the garage.

What, in fact, actually happened was that the driver misjudged the truck’s position with respect to the paper and ran over it, crushing to death the boy who was under the paper with a playmate.

At the conclusion of the trial, the Court charged the jury in substance as follows:

“In the argument of counsel much has been said as to the foreseeability of the danger on the part of the truck driver. The law as to this is that one cannot be held legally liable for injury to the- personal property of another unless by the exercise of that degree of care and caution which a prudent or reasonably cautious man, acting under similar circumstances, would exert could he have foreseen, not the extent of the injury or damage, or manner in which it occurred, but could have foreseen that some injury or damage to the person or property of another would reasonably be expected to ensue as the result of his action or conduct.

“In this case the question for you to determine as a fact is whether the truck driver acted as a reasonably prudent and cautious man would act in driving his truck under the facts and the evidence as they have been testified to in this case. If he did you should find for the defendant. If he did not your verdict should be for the plaintiff. Could he have foreseen that the injury would reasonably be expected as a result of his conduct? If he could, you should find for the plaintiff. If he could not, your verdict should be for the defendant.”

To determine if there was negligence, it is necessary to ascertain first if a prudent or reasonably cautious man should have foreseen that his act would cause injury.-

Negligence has long, been defined generally as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Blyth v. Birmingham Water Works, 11 Exchequer 781 (1856).

*234The American Law Institute in its definition of negligence has said “negligence is * * * conduct * * * which falls below the standard established by law for the protection of others against unreasonable risk of harm” and further in Section 283, that this standard of conduct “is that of a reasonable man under like circumstances.” Restatement, Torts §§ 282, 283.

Thus, negligence is a matter of risk — that is to say, of recognizable danger of injury. In most instances, it is caused by an act of heedlessness or carelessness, where the negligent party is unaware of the results which may follow from his act. But it may also exist where he has considered the possible consequences carefully and has exercised his own best judgment as in the present case.

The Restatement of Torts in Section 435, ill. 1, and the Supreme Court of Pennsylvania have adopted the view that a defendant who is negligent must take existing circumstances as he finds them, and may be liable for consequences brought about by his acts, even though they were not reasonably to have been anticipated. Or, as it is sometimes expressed, what he could foresee is important in determining whether he was negligent in the first instance, but not at all decisive in determining the extent of the consequences for which, once negligent, he will be liable. Shipley v. City of Pittsburgh, 1936, 321 Pa. 494, 184 A. 671; Oil City Gas Co. v. Robinson, 1881, 99 Pa. 1; Bunting v. Hogsett, 1891, 139 Pa. 363, 21 A. 31, 33, 34, 12 L.R.A. 268.

Applying the law to the facts of the instant case it is readily ascertainable that the driver of the City’s truck should have known that some form of injury might ensue if he were to pass over this huge piece of paper. Taking the facts most favorable to the plaintiff, it is a justifiable conclusion to draw that the appearance of the paper, as shown by the fact it was two to three feet in height, would put an ordinarily prudent man on notice that injury might result if he ran over it, and that he should exercise additional precautions to avoid doing so. This is evident by the fact that the driver acknowledged that he was aware that something might be under the wrapping paper. Additionally, I believe that this awareness coupled with the fact that the driver was one who consistently handled trash, bundles of paper and similar discarded objects, put him on notice that the nature and position of this object was not of the kind ordinarily encountered in his travels. A person who is employed specifically to collect trash, and does so for a period of time, acquires that additional and somewhat special, knowledge as to the type of ordinary trash set out by inhabitants to be collected.

The evidence shows that the deceased and another little boy were playing “opening envelopes” under this huge piece of paper and that the boys were not sitting absolutely still. The natural tendency of children is to move about causing some movement of the paper.

In Shipley v. City of Pittsburgh, supra, the court held that an instruction to the jury that the defendant was not liable if the accident was not “ ‘such accident as should have been reasonably anticipated’ ”, constituted reversible error. However, in some of the earlier cases there is language which is in conflict with the rule there stated. Cf. Wood v. Pennsylvania R. Co., 1896, 177 Pa. 306, 35 A. 699, 35 L.R.A. 199. It is to be noted that in cases following the Wood decision, courts have improperly assumed the defendant’s negligence qua the plaintiff and considered the “cause” question in language which would have been more appropriately directed to the negligence issue.

In cases in which other elements of a cause of action for negligence were present, the Pennsylvania courts have repeatedly followed the rule of the Ship-ley case. As early as City of Pittsburgh v. Grier, 1853, 22 Pa. 54, the defendant contended that the “destruction of the boat was a consequence which the agents could not have foreseen as likely to oc*235cur.” However, the Court said, “But it is not the law, that men are responsible for their negligence only to the extent of the injuries which they knew would result from it.”

It has been held: “If the city was negligent, it was liable for the consequences of its neglect, though those consequences were not, and could not by any ordinary prudence have been, anticipated.” Corbin v. City of Philadelphia, 1900, 195 Pa. 461, 45 A. 1070, 1071, 49 L.R.A. 715; Restatement, Torts, § 435.

Accordingly, under Pennsylvania law a defendant who has failed to exercise reasonable care under the circumstances cannot escape liability for damage upon the ground that he could not have foreseen the particular results of his negligent act. Therefore, in the instant case, it is no defense for the City to say that the driver, who carelessly drove over a piece of paper which for reasons of safety he intended to avoid, did not foresee that a child was under the paper. To allow such a defense would exculpate negligent persons from liability for all but deliberate or wantonly malicious acts.

However, assuming the law requires the driver to have foreseen the possibility of injury, the jury, from the facts in evidence, together with all reasonable inferences in favor of plaintiif, might well have found that the driver should have foreseen the possibility that a child was underneath this object.

Moreover, the driver saw this piece of paper and noticed that it was high enough for a little child to be underneath. He then ran over the very piece of paper which he had concluded was unsafe to crush.

The jury resolved as a fact that two little children were underneath the paper, also, that one of the children had been sitting up underneath the paper in the street. The jury also could have resolved that the two children had not been lying motionless under the paper, but were playing there. As a matter of fact, the surviving child testified that he had been sitting under the paper with decedent “opening envelopes.” The jury may then have concluded that the motion caused by children playing underneath the paper was easily observable by a prudent driver.

The evidence in the case amply supports the jury’s verdict that the driver of the truck under these particular circumstances was careless and that his careless act resulted in the decedent’s death.

This Court is of the opinion that there was negligence when the driver attempted to avoid the paper and failed to do so, and, as a matter of law, the verdicts of the jury should not be disturbed.

Accordingly, defendant’s motion to set aside the verdicts and for judgment n. o. v. is dismissed.

4.3.1.4 McCarty v. Pheasant Run, Inc. ("The Safety Chain Case") 4.3.1.4 McCarty v. Pheasant Run, Inc. ("The Safety Chain Case")

According to this opinion, who gets to decide whether the hotel breached its duty of reasonable care? What theories of breach were put forward?

Dula McCARTY, Plaintiff-Appellant, v. PHEASANT RUN, INC., Defendant-Appellee.

No. 86-2135.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 9, 1987.

Decided July 22, 1987.

*1555Arthur L. Klein, Arnstein, Gluck, Lehr, Barron & Milligan, Chicago, Ill., for plaintiff-appellant.

Byron D. Knight, Judge & Knight, Ltd., Park Ridge, Ill., for defendant-appellee.

Before BAUER, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The high crime rate in the United States has interacted with expanding notions of tort liability to make suits charging hotel owners with negligence in failing to protect their guests from criminal attacks increasingly common. See Annot., 28 A.L.R.4th 80 (1984). Dula McCarty, a guest at the Pheasant Run Lodge in St. Charles, Illinois, was assaulted by an intruder in her room, and brought suit against the owner of the resort. The suit charges negligence, and bases federal jurisdiction on diversity of citizenship. The parties agree that Illinois law governs the substantive issues. The jury brought in a verdict for the defendant, and Mrs. McCarty appeals on a variety of grounds.

In 1981 Mrs. McCarty, then 58 years old and a merchandise manager for Sears Roebuck, checked into Pheasant Run — a large resort hotel on 160 acres outside Chicago— to attend a Sears business meeting. In one wall of her second-floor room was a sliding glass door equipped with a lock and a safety chain. The door opens onto a walkway that has stairs leading to a lighted courtyard to which there is public access. The drapes were drawn and the door covered by them. Mrs. McCarty left the room for dinner and a meeting. When she returned, she undressed and got ready for bed. As she was coming out of the bathroom, she was attacked by a man with a stocking mask. He beat and threatened to rape her. She fought him off, and he fled. He has never been caught. Although Mrs. McCarty’s physical injuries were not serious, she claims that the incident caused prolonged emotional distress which, among other things, led her to take early retirement from Sears.

Investigation of the incident by the police revealed that the sliding glass door had been closed but not locked, that it had been pried open from the outside, and that the security chain had been broken. The intruder must have entered Mrs. McCarty’s room by opening the door to the extent permitted by the chain, breaking the chain, and sliding the door open the rest of the way. Then he concealed himself somewhere in the room until she returned and entered the bathroom.

Mrs. McCarty argues that the judge should have granted her motion for judgment notwithstanding the jury’s verdict for the defendant. But she failed to move for a directed verdict on the issue of the defendant’s negligence, and that is a prerequisite to judgment n.o.v. Fed.R. Civ.P. 50(b). It is true that she made a motion for a directed verdict on the issue of her contributory negligence, which was denied, and that the defendant made a motion for a directed verdict on the issue of its negligence, which was also denied, but these motions were not equivalent to the motion she failed to make. Even if she had been innocent of contributory negligence as *1556a matter of law, this would not have made the defendant guilty of negligence as a matter of law; in many accidents, neither injurer nor victim is at fault, and then there is no liability. Similarly, all that the denial of the defendant’s motion for a directed verdict showed was that the defendant was not innocent of negligence as a matter of law; it could of course be guilty of negligence as a matter of law. Thus, neither motion for directed verdict presented the question whether the issue of the defendant’s negligence should be withdrawn from the jury and resolved in the plaintiff’s favor. She could not present that issue for the first time in her motion for judgment n.o.v.

The modern rationale for the rule that a motion for directed verdict is a prerequisite to judgment n.o.v. is that the opposing party should have a chance to rectify (or at least seek the court’s leave to rectify) deficiencies in his evidence before it is too late, that is, before the case goes to the jury. McKinnon v. City of Berwyn, 750 F.2d 1383, 1388 (7th Cir.1984); see also Benson v. Allphin, 786 F.2d 268, 273-74 (7th Cir.1986). That rationale is applicable to this case. After both motions for directed verdict (the plaintiff’s on contributory negligence, and the defendant’s on negligence) were denied, the defendant had no reason to think it hadn’t put in enough evidence to get to the jury on the issue of liability. If the plaintiff thought otherwise she had to move for a directed verdict on that issue.

As an alternative ground for denying the motion for judgment n.o.v., the district judge correctly pointed out that the case was not so one-sided in the plaintiff’s favor that the grant of a directed verdict or judgment n.o.v. in her favor would be proper. Her theories of negligence are that the defendant should have made sure the door was locked when she was first shown to her room; should have warned her to keep the sliding glass door locked; should have equipped the door with a better lock; should have had more security guards (only two were on duty, and the hotel has more than 500 rooms), cf. Nordmann v. National Hotel Co., 425 F.2d 1103, 1107 (5th Cir.1970); should have made the walkway on which the door opened inaccessible from ground level; should have adopted better procedures for preventing unauthorized persons from getting hold of keys to guests’ rooms; or should have done some combination of these things. The suggestion that the defendant should have had better procedures for keeping keys away from unauthorized persons is irrelevant, for it is extremely unlikely that the intruder entered the room through the front door. Compare Danile v. Oak Park Arms Hotel, Inc., 55 Ill.App.2d 2, 203 N.E.2d 706 (1964). The other theories were for the jury to accept or reject, and its rejection of them was not unreasonable. Cf. Courtney v. Remler, 566 F.Supp. 1225, 1233-34 (D.S.C.1983).

There are various ways in which courts formulate the negligence standard. The analytically (not necessarily the operationally) most precise is that it involves determining whether the burden of precaution is less than the magnitude of the accident, if it occurs, multiplied by the probability of occurrence. (The product of this multiplication, or “discounting,” is what economists call an expected accident cost.) If the burden is less, the precaution should be taken. This is the famous “Hand Formula” announced in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947) (L. Hand, J.), an admiralty case, and since applied in a variety of cases not limited to admiralty. See, e.g., United States Fidelity & Guaranty Co. v. Jadranska Slobodna Plovidba, 683 F.2d 1022, 1026 (7th Cir.1982); Maryland Cas. Co. v. City of Jackson, 493 So.2d 955, 960 n. 3 (Miss.1986) (dictum); People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 266-67, 495 A.2d 107, 117-18 (1985); Micallef v. Miehle Co., 39 N.Y.2d 376, 386, 384 N.Y.S.2d 115, 348 N.E.2d 571, 577-78 (1976); Phillips v. Croy, 173 Ind.App. 401, 404-05, 363 N.E.2d 1283, 1285 (1977); Benlehr v. Shell Oil Co., 62 Ohio App.2d 1, 9 and n. 5, 402 N.E.2d 1203, 1208 and n. 5 (1978); Golden v. McCurry, 392 So.2d 815, 819 (Ala.1980) (separate opinion); 3 Harper, James & Gray, The Law of Torts § 16.9, at pp. 467-*155768 (2d ed. 1986); Prosser and Keeton on the Law of Torts § 31, at p. 173 (5th ed. 1984); cf. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 2302, 90 L.Ed.2d 865 (1986); Prentis v. Yale Mfg. Co., 421 Mich. 670, 687, 365 N.W.2d 176, 184 (1984).

We are not authorized to change the common law of Illinois, however, and Illinois courts do not cite the Hand Formula but instead define negligence as failure to use reasonable care, a term left undefined. See, e.g., Hardware State Bank v. Cotner, 55 Ill.2d 240, 247-48, 302 N.E.2d 257, 262 (1973); Denniston v. Skelly Oil Co., 47 Ill.App.3d 1054, 1067, 6 Ill.Dec. 77, 87, 362 N.E.2d 712, 722 (1977). But as this is a distinction without a substantive difference, we have not hesitated to use the Hand Formula in cases governed by Illinois law. See EVRA Corp. v. Swiss Bank Corp., 673 F.2d 951, 958 (7th Cir.1982); Davis v. Consolidated Rail Corp., 788 F.2d 1260, 1263-64 (7th Cir.1986). The formula translates into economic terms the conventional legal test for negligence. This can be seen by considering the factors that the Illinois courts take into account in negligence cases: the same factors, and in the same relation, as in the Hand Formula. See Hendricks v. Peabody Coal Co., 115 Ill.App.2d 35, 45-46, 253 N.E.2d 56, 61 (1969); Bezark v. Kostner Manor, Inc., 29 Ill.App.2d 106, 111-12, 172 N.E.2d 424, 426-27 (1961). Unreasonable conduct is merely the failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost.

Ordinarily, and here, the parties do not give the jury the information required to quantify the variables that the Hand Formula picks out as relevant. That is why the formula has greater analytic than operational significance. Conceptual as well as practical difficulties in monetizing personal injuries may continue to frustrate efforts to measure expected accident costs with the precision that is possible, in principle at least, in measuring the other side of the equation — the cost or burden of precaution. Cf. Conway v. O’Brien, 111 F.2d 611, 612 (2d Cir.1940) (L. Hand, J.), rev’d on other grounds, 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. 969 (1941). For many years to come juries may be forced to make rough judgments of reasonableness, intuiting rather than measuring the factors in the Hand Formula; and so long as their judgment is reasonable, the trial judge has no right to set it aside, let alone substitute his own judgment.

Having failed to make much effort to show that the mishap could have been prevented by precautions of reasonable cost and efficacy, Mrs. McCarty is in a weak position to complain about the jury verdict. No effort was made to inform the jury what it would have cost to equip every room in the Pheasant Run Lodge with a new lock, and whether the lock would have been jimmy-proof. The excluded exhibits (of which more later) were advertisements for locks, and Mrs. McCarty’s lawyer expressed no interest in testing the claims made in them, or in calculating the expense of installing new locks in every room in the resort. And since the door to Mrs. McCarty’s room was unlocked, what good would a better lock have done? No effort was made, either, to specify an optimal security force for a resort the size of Pheasant Run. No one considered the fire or other hazards that a second-floor walkway not accessible from ground level would create. A notice in every room telling guests to lock all doors would be cheap, but since most people know better than to leave the door to a hotel room unlocked when they leave the room — and the sliding glass door gave on a walkway, not a balcony — the jury might have thought that the incremental benefits from the notice would be slight. Mrs. McCarty testified that she didn’t know there was a door behind the closed drapes, but the jury wasn’t required to believe this. Most people on checking into a hotel room, especially at a resort, are curious about the view; and it was still light when Mrs. McCarty checked in at 6:00 p.m. on an October evening.

It is a bedrock principle of negligence law that due care is that care which is optimal given that the potential victim is himself reasonably careful; a careless per*1558son cannot by his carelessness raise the standard of care of those he encounters. Davis v. Consolidated Rail Corp., supra, 788 F.2d at 1265. The jury may have thought it was the hotel’s responsibility to provide a working lock but the guest’s responsibility to use it. See Brewer v. Roosevelt Motor Lodge, 295 A.2d 647, 652 (Me.1972). We do not want to press too hard on this point. A possible explanation for the condition of the door as revealed by the police investigation is that Mrs. McCarty on leaving the room for the evening left the door unlocked but with the safety chain fastened, and she might have been reasonable in thinking this a sufficient precaution. But it would not follow that the hotel was negligent, unless it is negligence to have sliding doors accessible to the public, a suggestion the jury was not required to buy. We doubt whether a boilerplate notice about the dangers of unlocked doors would have altered the behavior of the average guest; in any event this too was an issue for the jury. Cf. Rosier v. Gainsville Inns Associates, Ltd., 347 So.2d 1100, 1102 (Fla.App.1977); Otwell v. Motel 6, Inc., 755 F.2d 665, 667 (8th Cir.1985) (per curiam).

Now it is true that in Illinois an innkeeper, which in contemplation of law this defendant is, is required to use a high (not merely the ordinary) standard of care to protect its guests from assaults on the innkeeper’s premises. Mrzlak v. Ettinger, 25 Ill.App.3d 706, 712-13, 323 N.E.2d 796, 800 (1975); Danile v. Oak Park Arms Hotel, Inc., supra, 55 Ill.App.2d at 8-9, 203 N.E.2d at 709. This is not the general rule, see, e.g., Kveragas v. Scottish Inns, Inc., 733 F.2d 409, 413 (6th Cir.1984); Peters v. Holiday Inns, Inc., 89 Wis.2d 115, 123-24, 278 N.W.2d 208, 212 (1979); Phillips Petroleum Co. v. Dorn, 292 So.2d 429, 431-32 (Fla.App.1974), though it has some ambiguous support in Louisiana, see Kraaz v. La Quinta Motor Inns, Inc., 410 So.2d 1048 (La.1982) — ambiguous because while the court said that “a guest is entitled to a high degree of care and protection,” it promptly added that “the innkeeper has a duty to take reasonable precautions against criminals” (id. at 1053, emphasis added). Conceivably, as suggested in Dorn, it is no longer the rule in Illinois either, though Yamada v. Hilton Hotel Corp., 60 Ill.App.3d 101, 112, 17 Ill.Dec. 228, 237, 376 N.E.2d 227, 236 (1977), decided after Dorn, suggests it is. The rule may simply be an inadvertent extrapolation from the principle (see Restatement (Second) of Torts, § 314A and comment e (1965); Kveragas v. Scottish Inns, Inc., supra, 733 F.2d at 412) that an innkeeper, like a common carrier but unlike a mere bystander, has a duty to prevent (or rescue from) dangers created by third parties. See Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 331, 125 N.E.2d 544, 546 (1955), seeming to equate these distinct propositions.

The rule, if it is a rule, may be defensible however; and whether it is or is not defensible is relevant to whether it is a genuine rule or a mere inadvertence. Ordinarily the innkeeper knows much more about the hazards of his trade than the guest, and can take reasonable (=cost-justified) steps to reduce them, while ordinarily the guest can do little to protect himself against them. See Banks v. Hyatt Corp., 722 F.2d 214, 226-27 (5th Cir.1984). Pheasant Run, Inc. knows more about the danger of break-ins to guest rooms at its lodge than the guests do, and more about the alternative methods for preventing such break-ins, as well. Maybe this asymmetry in the parties' position should make the defendant’s standard of care higher than it would be in, say, an ordinary collision case. See Danile v. Oak Park Arms Hotel, Inc., supra, 55 Ill.App.2d at 6-8, 203 N.E.2d at 708-09. But it does not make the defendant’s liability strict. In this case there was evidence of negligence but not so much as to establish liability as a matter of law or (the plaintiff’s alternative argument) to require a new trial. And the rule, based as it seems to be on an asymmetry in the parties’ abilities to prevent mishaps, has a certain hollowness in a case such as this, where the victim may have failed to take an elementary precaution — locking the sliding door before leaving the room.

*1559The next issue that Mrs. McCarty seeks to raise is whether the judge should have instructed the jury to decide whether she had been contributorily negligent. She argues that there was no evidence of her contributory negligence. Pheasant Run is not in the middle of a large city and it might not occur to a guest that a safety chain on a sliding door to the outside was an inadequate protection against nocturnal marauders. On the other hand Mrs. McCarty was an experienced business traveler, so maybe she should have known better; and most people don’t consider a safety chain an adequate substitute for a lock. But even if there was no evidence of contributory negligence, there was no prejudicial error in giving an instruction on it. The jury was clearly and correctly instructed that contributory negligence in Illinois is not a complete defense; it just cuts down the amount of damages that the plaintiff would otherwise be entitled to. This is the principle of comparative negligence, and at the time of the trial of this ease it existed in Illinois in its pure form, meaning that the plaintiff is entitled to some damages even if he was more negligent than the defendant. See Alvis v. Ribar, 85 Ill.2d 1, 25-28, 52 Ill.Dec. 23, 421 N.E.2d 886, 897-98 (1981). (The rule has since been modified. See Ill.Rev.Stat. ch. 110, ¶¶ 2-1107.1, 2-1116; Davis v. United States, 824 F.2d 549, 551 (7th Cir.1987).) Since the jury returned a verdict for the defendant, rather than a verdict for the plaintiff with truncated damages, it probably thought that the defendant had not been negligent at all or that its negligence had not caused the mishap; in either case the plaintiff’s contributory negligence or lack thereof would be moot. It is unlikely that the mere giving of the instruction somehow signaled to the jury the judge’s belief that the verdict should be for the defendant.

The remaining questions concern the judge’s exclusion of evidence that the plaintiff sought to put before the jury. The exclusion of evidence about proper key-control procedures was proper for a reason we have already indicated: such evidence was not relevant to any plausible theory of the defendant’s negligence. Also proper or at least defensible was the judge’s decision to exclude evidence of previous criminal activity at Pheasant Run that did not involve breaking into a room through the sliding glass door. The judge admitted evidence of the nine previous break-ins that did. The principal evidence in the previous-crimes category that he excluded was of two alleged sexual assaults and eleven alleged thefts from rooms. This evidence was of limited relevance, at best. One of the so-called assaults involved a complaint from a man who said that he saw a man and woman having intercourse in a hallway and that he sprained his ankle pursuing the man; it is entirely unclear whether the intercourse was coerced or what the relationship of the complainant to the couple was. The circumstances of the other alleged assault are equally shadowy. Neither involved an intrusion into a room. The eleven reports of theft appear to include cases where a guest lost or mislaid an item as well as cases of genuine theft, but in any event are remote from the issues in this case; among other things, none involved forcing the sliding glass door.

A trial judge has broad discretion in administering Rule 403 of the Federal Rules of Evidence, which authorizes him to .exclude relevant evidence if its probative significance is substantially outweighed by its prejudicial, confusing, or cumulative effect. Where as here the judge explains the reasoning process behind his exclusions, they will rarely be overturned. See United States v. Beasley, 809 F.2d 1273, 1278-79 (7th Cir.1987). Pheasant Run is a large place, and it is not to be supposed that it would be free of criminal activity no matter how careful (within the bounds of reason) the management was. There is no indication that its experience with criminal activity was abnormal or indicative of a need to take additional precautions. Maybe the jury should have been allowed to figure this out for itself, but a jury’s ability to digest statistical evidence is limited, especially when no comparison was attempted by the plaintiff’s counsel between the frequency of criminal activity at Pheasant *1560Run and at comparable resort hotels, cf. Anderson v. Malloy, 700 F.2d 1208, 1211-12 (8th Cir.1983), and no effort was made to show that precautions which would have averted crimes not involving the forcing of the sliding glass doors would also have averted the attack on Mrs. McCarty.

She also complains about the exclusion from evidence of advertisements for locks for sliding glass doors. These locks are designed to foil intruders, as the advertisements make clear, and Mrs. McCarty argues with some show of reason that the advertised locks appear to be more effective than the locks on the sliding glass doors at Pheasant Run. The problem is the absence of a causal relationship between the failure to have fancy locks and the attack on Mrs. McCarty. There is no evidence that Mrs. McCarty’s assailant jimmied the lock. The door was unlocked. The world’s fanciest lock — a lock to foil a Houdini — would thus have done her no good, and the failure to install a precaution that would not have avoided this accident (the accident that is the basis of the suit) is not actionable. Kveragas v. Scottish Inns, Inc., supra, 733 F.2d at 415. Her complaint about the exclusion of evidence of inadequate maintenance by the defendant of its sliding glass doors fails for the same reason; there is no indication that her failure to lock the door was due to improper maintenance. Finally, it is merely speculation that if the door had been equipped with a lock that locked automatically when the door was slid closed, the door would not have been left open with merely the safety chain fastened.

Affirmed.

4.3.2 Violation of a Statute 4.3.2 Violation of a Statute

4.3.2.1 Historical Cases 4.3.2.1 Historical Cases

4.3.2.1.1 Martin v. Herzog ("The Lightless Buggy to Tarrytown Case") 4.3.2.1.1 Martin v. Herzog ("The Lightless Buggy to Tarrytown Case")

Why was the plaintiff found to be contributorily negligent? Distinguish between two claims: that the plaintiff breached the duty of reasonable care and that this breach caused the accident. Are both claims true?

Elizabeth Martin, as Administratrix of the Estate of William J. Martin, Deceased, Appellant, v. Samuel A. Herzog, Respondent, Impleaded with Another.

Negligence — Highway Law — driving a vehicle at night on public highway without lights is negligence — erroneous charge.

1. Where a ease has been tried and argued on the assumption of a certain fact, it is not important whether that fact might have been a question for the jury. A controversy put out of a ease by the parties is not to be put into it by the court.

2. Evidence of a collision occurring more than an hour after sundown between an automobile and an unseen buggy, proceeding without the lights required by the statute (Highway Law [Cons. Laws, eh. 25l, § 329-a, as amended by L. 1915, ch. 367), is evidence from which a causal connection may be inferred between the collision and the lack of-signals.

3. Where, in an action to recover for the death of plaintiff’s intestate, killed in a collision between a wagon in which decedent was riding at night and an automobile, negligence was charged against the driver of the car in that he did not keep to the right of the center of the highway, and negligence against decedent, who was driving the wagon, in that *165he was traveling without lights as required by the statute, it was error for the court to charge, at plaintiff’s request, that “the fact that the plaintiff’s intestate was driving without a light is not negligence in itself.” They should have been told not only that the omission of the lights was negligence, but that it was “prima facie evidence of contributory negligence,” i. e., that it was sufficient in itself, unless its probative force was overcome, to sustain a verdict that the decedent was in fault.

Martin v. Herzog, 176 App. Div. 614, affirmed.

(Argued December 11, 1919;

decided February 24, 1920.)

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 2, 1917, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial.

The nature of the action and the facts, so far as material, are stated in the opinion.

Hugh A. Thornton and Martin J. Tierney for appellant.

The omission of plaintiff’s intestate to have a light upon his vehicle was not prima facie evidence of contributory negligence by him. (Amberg v. Kinley, 214 N. Y. 531; Barr v. Green, 210 N. Y. 252; Kelly v. N. Y. S. Rys. Co., 207 N. Y. 342; Mariano v. Lehmaier, 173 N. Y. 530; Donnelly v. City of Rochester, 166 N. Y. 315; Graham v. Manhattan Ry. Co., 149 N. Y. 336; McRickard v. Flint, 114 N. Y. 222; Briggs v. N. Y. C. & H. R. R. R. Co., 72 N. Y. 26; McGrath v. N. Y. C. R. R. Co., 63 N. Y. 522; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Flucker v. Zeigle Brewing Co., 201 N. Y. 40; Orr v. Baltimore & O. R. Co., 168 App. Div. 548; Shields v. Pugh & Co., 122 App. Div. 586; Koch v. Fox, 71 App. Div. 288; Buys v. Third Ave. R. R. Co., 45 App. Div. 11; McCambley v. Staten Is. M. R. R. Co., 32 App. Div. 346; McCauley v. Schneider, 9 App. Div. 279; Fox Constr. Co., Inc., v. Dailey’s Towing Line, Inc., 180 App. Div. 593; Fitten v. Sumner, 176 App. Div. 617; Karpeles v. Heine, 227 *166 N. Y. 74.) The court’s charge in reference to contributory negligence was correct in every respect and not prejudicial error. (Kelley v. N. Y. C. Rys., 207 N. Y. 342; Mendelson v. Van Rensselaer, 118 App. Div. 516; Barr v. Green, 210 N. Y. 252; Amberg v. Kinley, 214 N. Y. 531.)

Herbert C. Smyth, Roderic Wellman and Alfred W. Andrews for respondent.

The refusal to charge defendant’s request, that the absence of a light on the buggy was prima facie evidence of contributory negligence, was prejudicial error. (Amberg v. Kinley, 214 N. Y. 531; Racine v. Morris, 201 N. Y. 240; Jetter v. N. Y. C. & H. R. R. R. Co., 2 Abb. Ct. App. Dec. 458; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535; Willy v. Mulledy, 78 N. Y. 310; Pauley v. S. G. & L. Co., 131 N. Y. 90; Lewis v. L. I. R. R. Co., 162 N. Y. 52; Huda v. Am. Glucose Co., 154 N. Y. 474; Lambert v. S. I. R. R. Co., 70 N. Y. 164; Fisher v. Vil. of Cambridge, 133 N. Y. 527.)

Cardozo, J.

The action is one to recover damages for injuries resulting in death.

Plaintiff and her husband, while driving toward Tarrytown in a buggy on the night of August 21, 1915, were struck by the defendant’s automobile coming in the opposite direction. They were thrown to the ground, and the man was killed. At the point of the collision the highway makes a curve. The car was rounding the curve when suddenly it came upon the buggy, emerging, the defendant tells us, from the gloom. Negligence is charged against the defendant, the driver of the car, in that he did not keep to the right of the center of the highway (Highway Law, sec. 286, subd. 3; sec. 332; Consol. Laws, ch. 25). Negligence is charged against the plaintiff’s interstate, the driver of the wagon, in that he was traveling without lights (Highway Law, sec. 329a, as amended by L. 1915, ch. 367). There is no evidence *167that the defendant was moving at an excessive speed. There is none of any defect in the equipment of his car. The beam of light from his lamps pointed to the right as the wheels of his car turned along the curve toward the left; and looking in the direction of the plaintiff’s approach, he was peering into the shadow. The case against him must stand, therefore, if at all, upon the divergence of his course from the center of the highway. The jury found him delinquent and his victim blameless. The Appellate Division reversed, and ordered a new trial.

We agree with the Appellate Division that the charge to the jury was erroneous and misleading. The case was tried on the assumption that the hour had arrived when lights were due. It was argued on the same assumption in this court. In such circumstances, it is not important whether the hour might have been made a question for the jury (Todd v. Nelson, 109 N. Y. 316, 325). A controversy put out of the case by the parties is not to be put into it by us. We say this by way of preface to our review of the contested rulings. In the body of the charge the trial judge said that the jury could consider the absence of light “in determining whether the plaintiff’s intestate was guilty of contributory negligence in failing to have a light upon the buggy as provided by law. I do not mean to say that the absence of light necessarily makes him negligent, but it is a fact for your consideration.” The defendant requested a ruling that the absence of a light on the plaintiff’s vehicle was “prima facie evidence of contributory negligence.” This request was refused, and the jury were again instructed that they might consider the absence of lights as some evidence of negligence, but that it was not conclusive evidence. The plaintiff then requested a charge that “the fact that the plaintiff’s intestate was driving without a light is not negligence in itself,” and to this the court acceded. The defendant saved his rights by appropriate exceptions.

*168We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway (Highway Law, sec. 329a). By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the established rule in this state (Amberg v. Kinley, 214 N. Y. 531; Karpeles v. Heine, 227 N. Y. 74; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535, 538; Marino v. Lehmaier, 173 N. Y. 530, 536; cf. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 39, 40; Prest-O-Lite Co. v. Skeel, 182 Ind. 583, 600, 601; Newcomb v. Boston Protective Dept., 146 Mass. 596; Bourne v. Whitman, 209 Mass. 155, 163). Whether the omission of an absolute duty, not willfully or heedlessly, but through unavoidable accident, is also to be characterized as negligence, is a question of nomenclature into which we need not enter, for it does not touch the case before us. There may be times, when if jural niceties are to be preserved, the two wrongs, negligence and breach of statutory duty, must be kept distinct in speech and thought (Pollock Torts [10th ed.], p. 458; Clark & Linseil Torts [6th ed.], p. 493; Salmond Jurisprudence [5th ed.], pp. 351, 363; Texas & Pac. Ry. Co. v. Rigsby, supra, p. 43; Chicago, B. & Q. Ry. Co. v. U. S., 220 U. S. 559). In the conditions here present they come together and coalesce. A rule less rigid has been applied where the one who complains of the omission is not a member of the class for whose protection the safeguard is designed (Amberg v. Kinley, supra; Union Pac. Ry. Co. v. McDonald, 152 U. S. 262, 283; Kelley v. N. Y. State Rys. 207 N. Y. 342; Ward v. Hobbs, 4 App. Cas. 13). Some relaxation there has also been where the *169safeguard is prescribed by local ordinance, and not by statute (Massoth v. D. & H. C. Co., 64 N. Y. 524, 532; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488). Courts have been reluctant to hold that the police regulations of boards and councils and other subordinate officials create rights of action beyond the specific penalties imposed. This has led them to say that the violation of a statute is negligence, and the violation of a like ordinance is only evidence of negligence. An ordinance, however, like a statute, is a law within its sphere of operation, and so the distinction has not escaped criticism (Jetter v. N. Y. & H. R. R. Co., supra; Knupfle v. Knickerbocker Ice Co., supra; Newcomb v. Boston Protective Dept., supra; Prest-O-Lite Co. v. Skeel, supra). Whether it has become too deeply rooted to be abandoned, even if it be thought illogical, is a question not now before us. What concerns us at this time is that even in the ordinance cases, the omission of a safeguard prescribed by statute is put upon a different plane, and is held not merely some evidence of negligence, but negligence in itself (Massoth v. D. & H. Canal Co., supra; and cf. Cordell v. N. Y. C. & H. R. R. R. Co., supra). In the ease at hand, we have an instance of the admitted violation of a statute intended for the protection of travelers on the highway, of whom the defendant at the time was one. Yet the jurors were instructed in effect that they were at liberty in their discretion to treat the omission of lights either as innocent or as culpable. They were allowed to “consider the default as lightly or gravely” as they would (Thomas, J., in the court below). They might as well have been told that they could use a like discretion in holding a master at fault for the omission of a safety appliance prescribed by positive law for the protection of a workman (Scott v. International Paper Co., 204 N. Y. 49; Fitzwater v. Warren, 206 N. Y. 355; Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33). Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes *170under the statute to another. It is error to tell them that they have. The omission of these lights was a wrong, and being wholly unexcused was also a negligent wrong. No license should have been conceded to the triers of the facts to find it anything else.

We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury. A defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the disaster. A plaintiff who travels without them is not to forfeit the right to damages unless the absence of lights is at least a contributing cause of the disaster. To say that conduct is negligence is not to say that it is always contributory negligence. “Proof of negligence in the air, so to speak, will not do” (Pollock Torts [10th ed.], p. 472). We think, however, that evidence of a collision occurring more than an hour after sundown between a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals (Lambert v. Staten Island R. R. Co., 70 N. Y. 104, 109, 110; Walsh v. Boston & Maine Railroad, 171 Mass. 52, 58; The Pennsylvania, 19 Wall. 125, 136, 137; Fisher v. Village of Cambridge, 133 N. Y. 527, 532). If nothing else is shown to break the connection, we have a case, prima facie sufficient, of negligence contributing to the result. There may indeed be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous. If that is so, it is for the offender to go forward with the evidence, and prove the illumination as a kind of substituted performance. The plaintiff asserts that she did so here. She says that the scene of the accident was illumined by moonlight, by an electric lamp, and by the lights of the approaching car. Her position is that if the defendant did not see the buggy thus illumined, a jury might reasonably infer that he would not have seen *171it anyhow. We may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing such an inference, but the decision of the case does not make it necessary to resolve the doubt, and so we leave it open. It is certain that they were not required to find that lights on the wagon were superfluous. They might reasonably have found the contrary. They ought, therefore, to have been informed what effect they were free to give, in that event, to the violation of the statute. They should have been told not only that the omission of the lights was negligence, but that it was “prima facie evidence of contributory negligence,” i. e., that it was sufficient in itself unless its probative force was overcome (Thomas, J., in court below) to sustain a verdict that the decedent was at fault (Kelly v. Jackson, 6 Pet. 622, 632). Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road, but he did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless speed that warning would of necessity have been futile. Nothing of the kind is shown. The collision was due to his failure to see at a time when sight should have been aroused and guided by the statutory warnings. Some explanation of the effect to be given to the absence of those warnings, if the plaintiff failed to prove that other lights on the car or the highway took their place as equivalents, should have been put before the jury. The explanation was asked for, and refused.

We are persuaded that the tendency of the charge and of all the rulings following it, was to minimize unduly, in the minds of the triers of the facts, the gravity of the decedent’s fault. Errors may not be ignored as unsubstantial when they tend to such an outcome. A statute designed for the protection of human life is not to be brushed aside as a form of words, its commands reduced *172to the level of cautions, and the duty to obey attenuated into an option to conform.

The order of the Appellate Division should be affirmed, and judgment absolute directed on the stipulation in favor of the defendant, with costs in all courts.

Hogan, J. (dissenting).

Upon the trial of this action, a jury rendered a verdict in favor of the plaintiff. Defendant appealed from the judgment entered thereon and an order made denying an application to set aside the verdict and for a new trial to the Appellate Division. The latter court reversed the judgment on the law and granted a new trial on questions of law only, the court having examined the facts and found no error therein. The decision thus made was equivalent to a determination by the court that it had passed upon the question of the sufficiency of the evidence and as to whether the verdict rendered by the jury was against the weight of evidence. The effect of that decision was that the order denying the motion to set aside the verdict and grant a new trial was upon the facts properly denied. (Judson v. Central Vt. R. R. Co., 158 N. Y. 597, 602.) A jury and the Appellate Division having determined that upon the facts developed on the trial of the action, the plaintiff was entitled to recover, in view of certain statements in the prevailing opinion, and for the purpose of explanation of my dissent, I shall refer to the facts which were of necessity found in favor of plaintiff and approved by the Appellate Division.

The following facts are undisputed. Leading from Broadway in the village of Tarrytown, Westchester county, is a certain public highway known as Neperham road, which runs in an easterly direction to East View, town of Greenburg. The worked portion of the highway varies in width from twenty-one and one-half feet at the narrowest point a short distance easterly of the place of the collision hereinafter mentioned, to a width of *173twenty-seven and one-half feet at the point where the collision occurred.

On the evening of August 21st, 1915, the plaintiff, together with her husband, now deceased, were seated in an open wagon drawn by a horse. They were traveling on the highway westerly towards Tarrytown. The defendant was traveling alone on the highway in the opposite direction, viz., from Tarrytown easterly towards East View in an automobile which weighed about three thousand pounds, having a capacity of seventy horse power, capable of developing a speed of seventy-five miles an hour. Defendant was driving the car.

A collision occurred between the two vehicles on the highway at or near a hydrant located on the northerly side of the road. Plaintiff and her husband were thrown from the wagon in which they were seated. Plaintiff was bruised and her shoulder dislocated. Her husband was seriously injured and died as a result of the accident.

The plaintiff, as administratrix, brought this action to recover damages arising by reason of the death of her husband caused as she alleged solely by the negligence of defendant in operating, driving and running the automobile at a high, unlawful, excessive and unsafe rate of speed, in failing to blow a horn or give any warning or signal of the approach of said automobile and in operating, driving and riding said automobile at said time and place upon his left-hand or wrongful side of said road or highway, thereby causing the death of her husband.

Defendant by his answer admitted that he was operating the automobile, put in issue the remaining allegations of the complaint and affirmatively alleged that any injury to plaintiff’s intestate was caused by his contributory negligence.

As indicated in the prevailing opinion, the manner in which the accident happened and the point in the highway where the collision occurred are important facts in this case, for as therein stated: “The case against him (defend*174ant) must stand, therefore, if at all, upon the divergence of his course from the center of the highway.” The evidence on behalf of plaintiff tended to establish that on the evening in question her husband was driving the horse at a jogging gait along on their right side of the highway near the grass which was outside of the worked part of the road on the northerly side thereof; that plaintiff observed about one hundred twenty feet down the road the automobile operated by defendant approaching at a high rate of speed, two searchlights upon the same, and that the car seemed to be upon her side of the road; that the automobile ran into the wagon in which plaintiff and her husband were seated at a point on their side of the road while they were riding along near the grass. Evidence was also presented tending to show that the rate of speed of the automobile was eighteen to twenty miles an hour and the lights upon the car illuminated the entire road. The defendant was the sole witness on the part of the defense upon the subject under consideration. His version was: “Just before I passed the Tarrytown Heights Station, I noticed a number of children playing in the road. I slowed my car down a little more than I had been running. I continued to drive along the road, probably I proceeded along the road thre’e hundred or four hundred feet further, I do not know exactly how far, when suddenly there was a crash and I stopped my car as soon as I could after I realized that there had been a collision. Whether I saw anything in that imperceptible fraction of space before the wagon and car came together I do not know. I have an impression, about a quarter of a second before the collision took place, I saw something white cross the road and heard somebody call 'whoa’ and that is all I knew until I stopped my car. My best judgment is I was travelling about twelve miles an hour. At the time of the collision I was driving on the right of the road.”

*175The manner in which and the point in the highway where the accident occurred presented a question of lact for a jury. If the testimony of defendant was accredited by the jury, plaintiff and her intestate having observed the approaching automobile deliberately, thoughtlessly or with an intention to avoid the same left their side of the road at a moment when an automobile was rapidly approaching with lights illuminating the road, to cross over to the side of the highway where the automobile should be, and as claimed by defendant was traveling, and thereby collided with the same, or, on the contrary, defendant was driving upon his left side of the road and caused the collision. The trial justice charged the jury fully as to the claims of the parties and also charged that the plaintiff in her complaint specifically alleged the acts constituting negligence on the part of defendant (amongst which was that he was driving on the wrong side of the road thereby causing the death of her husband, the alleged absence of signals having been eliminated from the case) and in order to recover the plaintiff must show that the accident happened in the way and in the manner she has alleged in her complaint. “It is for you to determine whether the defendant was driving on the wrong side of the road at the time he collided with the buggy; whether his lights did light up the road and the whole road ahead of him to the extent that the buggy was visible, and so, if he negligently approached the buggy in which plaintiff and her husband were driving at the time. If you find from the evidence here, he was driving on the wrong side of the road and that for this reason he collided with the buggy which was proceeding on the proper side, or if you find that as he approached the buggy the road was so well lighted up that he saw or should have seen the buggy and yet collided with it then you may say, if you so find, that the defendant was careless and negligent.” No exception was taken by the defendant to that charge, but at the *176close of the charge counsel for defendant made certain requests to charge upon the subject as follows:

“(1) If the jury find that Mr. Martin was guilty of any negligence, no matter how slight, which contributed to the accident, the verdict must be for defendant.

“(2) In considering the photographs and consideration of which side of the vehicle, wagon, was damaged, that the jury have no right to disregard physical facts, and unless they find the accident happened as described by Mrs. Martin and Mrs. Cain, the verdict must be for the defendant.

“(3) The plaintiff must stand or fall on her claim as made, and if the jury do not find that the accident happened as substantially claimed by her and her witnesses, that the verdict of the jury must be for defendant.

“(4) It was the duty of Mr. Martin to keep to the right.”

Each one of the several requests was charged, and in addition the trial justice charged that if the deceased, Mr. Martin, collided with the automobile while the wagon was on the wrong side of the road, the verdict must be for defendant.

The principal issue of fact was not only presented to the jury in the original charge made by the trial justice, but emphasized and concurred in by counsel for defendant.

The prevailing opinion in referring to the accident and the highway at the point where the accident occurred describes the same in the following language: “At the point of the collision, the highway makes a curve. The car was rounding the curve when suddenly it came upon the buggy emerging the defendant tells us from the gloom.” Such in substance was the testimony of the defendant but his version was rejected by the jurors and the Appellate Division, and the evidence in the record is ample to sustain a contrary conclusion. As to the statement that the car was rounding “a curve,” *177two maps made by engineers from actual measurements and surveys for defendant were put in evidence by counsel for plaintiff. Certain photographs made for the purposes of the trial were also before the jury. I think we may assume that the jurors gave credence to the maps and actual measurements rather than to the photographs and failed to discover therefrom a curve of any importance or which would interfere with an unobstructed view of the road. As to the “buggy emerging the defendant tells us from the gloom,” evidence was adduced by plaintiff tending to show that the searchlights on defendant’s car lighted up the entire roadway to the extent that the vehicle in which plaintiff and her husband were riding was visible, that the evening was not dark, though it appeared as though a rainfall might be expected. Some witnesses testified it was moonlight. The doctor called from Tarrytown who arrived within twenty minutes after the collision, testified that the electric lights all along the highway were burning as he passed over the road. The width of the worked part of the highway at the point of the accident was twenty-seven and one-half feet. About twenty-five feet westerly on the southerly side was located an electric fight which was burning. A fine drawn across the highway from that fight to the point of the accident would be about forty-two feet. One witness called by plaintiff lived in a house directly across the highway from the point of the accident. Seated in a front room it was sufficiently fight for her to see plaintiff’s intestate when he was driving along the road at a point near a telegraph pole which is shown on the map some ninety or one hundred feet easterly of the point of the accident, when she observed him turn his horse into the right towards the fence. Soon thereafter she heard the crash of the collision and immediately went across the highway and found Mr. Martin in a sitting position on the grass. A witness called by the *178defendant testified that she was on the stoop of her house, which is across the highway from the point of the accident and about forty feet distant from said point and while seated there she could see the body of Mr. Martin. While she testified the evening was dark, the lights on the highway were sufficient to enable her to see the body of Mr. Martin lying upon the grass forty feet distant. The defendant upon cross-examination was confronted with his testimony given before the coroner where he testified that the road was “fairly light.”

The facts narrated were passed upon by the jury under a proper charge relating to the same, and were sustained by the Appellate Division. The conclusions deducible therefrom are: (A) Defendant was driving his car upon the wrong side of the road. (B) Plaintiff and her intestate were driving a horse attached to the wagon in which they were seated upon the extreme right side of the road. (C) The highway was well lighted. The evening was not dark. (D) Defendant collided with the vehicle in which plaintiff and her husband were riding and caused the accident.

I must here note the fact that concededly there was no light upon the wagon in which plaintiff and her husband were riding, in order that I may express my views upon additional phrases in the prevailing opinion. Therein it is stated: “There may indeed be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous.” I am in accord with that statement, but I dissent from the suggestion we may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing the inference that if defendant did not see the buggy thus illumined it might reasonably infer that he would not have seen it anyway. Further the opinion states: “Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road, but he *179did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless rate of speed that warning would of necessity be futile. Nothing of the kind is shown.” As to the rate of speed of the automobile, the evidence adduced by plaintiff’s witnesses was from eighteen to twenty miles an hour, as “very fast,” further that after the collision the car proceeded one hundred feet before it was stopped. The defendant testified that he was driving about twelve miles an hour, that at such rate of speed he thought the car should be stopped in five or six feet and though he put on the foot brake he ran twenty feet before he stopped. The jury had the right to find that a car traveling at the rate of twelve miles an hour which could be stopped within five or six feet, and with the foot brake on was not halted within one hundred feet must at the time of the collision have been running “very fast” or at a reckless rate of speed, and, therefore, warning would of necessity be futile. No claim was made that defendant was intoxicated or that he purposely ran into the buggy. Nor was proof of such facts essential to plaintiff’s right to recover. This case does not differ from many others wherein the failure to exercise reasonable care to observe a condition is disclosed by evidence and properly held a question of fact for a jury. In the earlier part of the prevailing opinion, as I have pointed out, the statement was: “The case against him (defendant) must stand or fall, if at all, upon the divergence of his course from the center of the highway.” It would appear that “lack of vision whether excusable or not was the cause of the disaster” had been adopted in lieu of divergence from the center of the highway. I have, therefore, discussed divergence from the center of the road. My examination of the record leads me to the conclusion that lack of vision was not on the undisputed facts the sole cause of the disaster. Had the defendant been upon his right side of the road, upon the plaintiff’s theory he might have been driving reck*180lessly and the plaintiff and her intestate being near to the grass on the northerly side of a roadway twenty-seven feet and upwards in width the accident would not have happened and the presence of or lack of vision would not be material. If, however, as found by the jury, defendant was wrongfully on plaintiff’s side of the road and caused the accident, the question of whether or not under the facts in the exercise of reasonable care he might have discovered his error and the presence of plaintiff and thereupon avoid the collision was for the jury. The question was presented whether or not as defendant approached the wagon the roadway was so well lighted up that defendant saw or in the exercise of reasonable care could have seen the wagon in time to avoid colliding with the same, and upon that proposition the conclusion of the jury was adverse to defendant, thereby establishing that the lights of the car on the highway were equivalent to any light which if placed upon the wagon of plaintiff would have aroused the attention of defendant, and that no causal connection existed between the collision and absence of a light on the wagon.

At the close of the charge to the jury the trial justice was requested by counsel for defendant to charge “that the failure to have a light on plaintiff’s vehicle is prima facie evidence of contributory negligence on the part of plaintiff.” The justice declined to charge in the language stated, but did charge that the jury might consider it on the question of negligence, but it was not in itself conclusive evidence of negligence. For the refusal to instruct the jury as requested, the judgment of the Trial Term was reversed by the Appellate Division.

The request to charge was a mere abstract proposition. Even assuming that such was the law, it would not bar a recovery by plaintiff unless such contributory negligence was the proximate and not a remote contributory cause of the injury. (Laidlaw v. Sage, 158 N. Y. 73; Rider v. Syracuse R. T. Ry. Co., 171 N. Y. 139, and cases cited.) The *181request to charge excluded that important requisite. The trial justice charged the jury that the burden rested upon plaintiff to establish by the greater weight of evidence that plaintiff’s intestate’s death was caused by the negligence of the defendant and that such negligence was the proximate cause of his death; that by “proximate cause” is meant that cause without which the injury would not have happened, otherwise she could not recover in the action. In the course of his charge the justice enlarged on the subject of contributory negligence, and in connection therewith read to the jury the provisions of the Highway Law and then charged that the jury should consider the absence of a light upon the wagon in which plaintiff and her intestate were riding and whether the absence of a light on the wagon contributed to the accident: At the request of counsel for defendant, the justice charged that, if the jury should find any negligence on the part of Mr. Martin, no matter how slight, contributed to the accident, the verdict must be for the defendant. I cannot concur that we may infer that the absence of a light on the front of the wagon was not only the cause but the proximate cause of the accident. Upon the evidence adduced upon the trial and the credence attached to the same, the fact has been determined that the accident would have been avoided had the defendant been upon his side of the road or attentive to where he was driving along a public highway, or had he been driving slowly, used his sense of sight and observed plaintiff and her intestate as he approached them, they being visible at the time. The defendant’s request to charge which was granted, “that plaintiff must stand or fall on her claim as made, and if the jury do not find that the accident happened as substantially claimed by her and her witnesses that the verdict of the jury must be for the defendant,” presented the question quite succinctly. The jury found that the accident happened as claimed by the plaintiff- and her witnesses and we cannot surmise or *182infer that, the accident would not have happened had a light been located on the wagon.

In my opinion the charge of the trial justice upon the subject of proximate cause of the accident was a full and complete statement of the law of the case, especially when considered in connection with the charge that the slightest negligence on the part of the intestate contributing to the accident would require a verdict for defendant.

It would not be profitable to refer to and analyze the numerous decisions of this court upon the effect of a violation of an ordinance or a statute. A large number of cases were cited in the opinions in the Amberg case. That case was decided upon the principle that where a duty is imposed by statute and a violation of the duty causes an injury, such violation is evidence of negligence as matter of law. That proposition was clearly discussed in the Amberg case (Amberg v. Kinley, 214 N. Y. 531) as will appear by the result therein. The doctrine of causal connection therein declared was but a reiteration of the rule laid down in Willy v. Mulledy (78 N. Y, 310); Briggs v. N. Y. C. & H. R. R. R. Co. (72 N. Y. 26), and numerous other cases.

The charge requested and denied in this case was in effect that a failure to have a light upon the intestate’s wagon was as matter of law such negligence on his part as to defeat the cause of action irrespective of whether or not such negligence was the proximate cause of the injury. My conclusion is that we are substituting form and phrases for substance and diverging from the rule of causal connection.

Hiscock, Ch. J., Pound, McLaughlin, Andrews and Elkus, JJ., concur with Cardozo, J.; Hogan, J., reads dissenting opinion.

Order affirmed.

4.3.2.1.2 Tedla v. Ellman ("The Walking With Traffic Case") 4.3.2.1.2 Tedla v. Ellman ("The Walking With Traffic Case")

When is there a justification for violating a statue that would otherwise ground a negligence per se theory?

Anna Tedla et al., Respondents, v. Joseph Ellman et al., Appellants. Mary Bachek, as Administratrix of the Estate of John Bachek, Deceased, Respondent, v. Joseph Ellman et al., Appellants.

Submitted October 24, 1938;

decided February 28, 1939.

*125 Hobart R. Marvin and James A. Hughes for appellants.

Decedent and plaintiff respondant were guilty of contributory negligence as a matter of law and the complaints should have been dismissed. (Martin v. Herzog, 228 N. Y. 164; Concolino v. Kunzelman, 259 N. Y. 602; Rosenberg v. Schwartz, 260 N. Y. 162.)

Jacob Zelenko and Sidney R. Siben for respondents.

Plaintiffs are not barred from recovering merely because section 85, subdivision 6, of the Vehicle and Traffic Law (Cons. Laws, ch. 72) prescribes the method of walking upon a highway. (Rabinowitz v. Solomon, 221 App. Div. 366; Martin v. Herzog, 228 N. Y. 164; Kettle v. Turl, 162 N. Y. 255; Boronkay v. Robinson & Carpenter, 247 N. Y. 365; Zurich G. A. & L. Ins. Co. v. Childs Co., 253 N. Y. 324; Anderson v. Calkins, 252 App. Div. 836; Van Brunt v. N. V. Tel. Co., 209 App. Div. 4; Shields v. Consolidated Gas Co., 193 App. Div. 86; Brown v. Shyne, 242 N. Y. 176; Hoffman v. Union Ferry Co., 47 N. Y. 176; Minerly v. Union Ferry Co., 56 Hun, 113; Lewis v. Rowland, 225 App. Div. 25.)

Lehman, J.

While walking along a highway, Anna Tedla and her brother, John Bachek, were struck by a passing automobile, operated by the defendant Heilman. She was injured and Bachek was killed. Bachek was a deaf-mute. His occupation was collecting and selling junk. His sister, Mrs. Tedla, was engaged in the same occupation. They often picked up junk at the incinerator of the village of Islip. At the time of the accident they were walking along “Sunrise Highway” and wheeling baby carriages containing junk and wood which they had picked up at the incinerator. It was about six o’clock, or a little earlier, *126on a Sunday evening in December. Darkness bad already set in. Bachek was carrying a lighted lantern, or, at least, there is testimony to that effect. The jury found that the accident was due solely to the negligence of the operator of the automobile. The defendants do not, upon this appeal, challenge the finding of negligence on the part of the operator. They maintain, however, that Mrs. Tedla and her brother were guilty of contributory negligence as matter of law.

Sunrise Highway, at the place of the accident, consists of two roadways, separated by a grass plot. There are no footpaths along the highway and the center grass plot was soft. It is not unlawful for a pedestrian, wheeling a baby carriage, to use the roadway under such circumstances, but a pedestrian using the roadway is bound to exercise such care for his safety as a reasonably prudent person would use. The Vehicle and Traffic Law (Cons. Laws, ch. 71) provides that “Pedestrians walking or remaining on the paved portion, or traveled part of a roadway shall be subject to, and comply with, the rules governing vehicles, with respect to meeting and turning out, except that such pedestrians shall keep to the left of the center fine thereof, and turn to their left instead of right side thereof, so as to permit all vehicles passing them in either direction to pass on their right. Such pedestrians shall not be subject to the rules governing vehicles as to giving signals.” (§ 85, subd. 6.) Mrs. Tedla and her brother did not observe the statutory rule and, at the time of the accident, were proceeding in easterly direction on the east-bound or right-hand roadway. The defendants moved to dismiss the complaint on the ground, among others, that violation of the statutory rule constitutes contributory negligence as matter of law. They did not, in the courts below, urge that any negligence in other respect of Mrs. Tedla or her brother bars a recovery. The trial judge left to the jury the question whether failure to observe the statutory rule was a proximate cause of the accident; he left to the jury no question of other fault or negligence on the part of Mrs. Tedla or her brother, and the *127defendants did not request that any other question be submitted. Upon this appeal, the only question presented is whether, as matter of law, disregard of the statutory rule that pedestrians shall keep to the left of the center line of a highway constitutes contributory negligence which bars any recovery by the plaintiff.

Vehicular traffic can proceed safely and without recurrent traffic tangles only if vehicles observe accepted rules of the road. Such rules, and especially the rule that all vehicles proceeding in one direction must keep to a designated part or side of the road — in this country the right-hand side — have been dictated by necessity and formulated by custom. The general use of automobiles has increased in unprecedented degree the number and speed of vehicles. Control of traffic becomes an increasingly difficult problem. Rules of the road, regulating the rights and duties of those who use highways, have, in consequence, become increasingly important. The Legislature no longer leaves to custom the formulation of such rules. Statutes now codify, define, supplement and, where changing conditions suggest change in rule, even change rules of the road which formerly rested on custom. Custom and common sense have always dictated that vehicles should have the right of way over pedestrians and that pedestrians should walk along the edge of a highway so that they might step aside for passing vehicles with least danger to themselves and least obstruction to vehicular traffic. Otherwise, perhaps, no customary rule of the road was observed by pedestrians with the same uniformity as by vehicles; though, in general, they probably followed, until recently, the same rules as vehicles.

Pedestrians are seldom a source of danger or serious obstruction to vehicles and when horse-drawn vehicles were common they seldom injured pedestrians, using a highway with reasonable care, unless the horse became unmanageable or the driver was grossly negligent or guilty of willful wrong. Swift-moving motor vehicles, it was soon recognized, do endanger the safety of pedestrians crossing highways, and it is imperative that there the relative rights and duties of *128pedestrian s and of vehicles should be understood and observed. The Legislature in the first five subdivisions of section 85 of the Vehicle and Traffic Law has provided regulations to govern the conduct of pedestrians and of drivers of vehicles when a pedestrian is crossing a road. Until, by chapter 114 of the Laws of 1933, it adopted subdivision 6 of section 85, quoted above, there was no special statutory rule for pedestrians walking along a highway. Then for the first time it reversed, for pedestrians, the rule established for vehicles by immemorial custom, and provided that pedestrians shall keep to the left of the center line of a highway.

The plaintiffs showed by the testimony of a State policeman that “there were very few cars going east” at the time of the accident, but that going west there was “very heavy Sunday night traffic.” Until the recent adoption of the new statutory rule for pedestrians, ordinary prudence would have dictated that pedestrians should not expose themselves to the danger of walking along the roadway upon which the “very heavy Sunday night traffic” was proceeding when they could walk in comparative safety along a roadway used by very few cars. It is said that now, by force of the statutory rule, pedestrians are guilty of contributory negligence as matter of law when they use the safer roadway, unless that roadway is left of the center of the road. Disregard of the statutory rule of the road and observance of a rule based on immemorial custom, it is said, is negligence which as matter of law is a proximate cause of the accident, though observance of the statutory rule might, under the circumstances of the particular case, expose a pedestrian to serious danger from which he would be free if he followed the rule that had been established by custom. If that be true, then the Legislature has decreed that pedestrians must observe the general rule of conduct which it has prescribed for their safety even under circumstances where observance would subject them to unusual risk; that pedestrians are to be charged with negligence as matter of law for acting as prudence dictates. It is unreasonable to ascribe to the Legislature an intention that *129the statute should have so extraordinary a result, and the courts may not give to a statute an effect not intended by the Legislature.

The Legislature, when it enacted the statute, presumably knew that this court and the courts of other jurisdictions had established the general principle that omission by a plaintiff of a safeguard, prescribed by statute, against a recognized danger, constitutes negligence as matter of law which bars recovery for damages caused by incidence of the danger for which the safeguard was prescribed. The principle has been formulated in the Restatement of the Law of Torts: “A plaintiff who has violated a legislative enactment designed to prevent a certain type of dangerous situation is barred from recovery for a harm caused by a violation of the statute if, but only if, the harm was sustained by reason of a situation of that type.” (§ 469.) So where a plaintiff failed to place lights upon a vehicle, as required by statute, this court has said: “we think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway. (Highway Law, § 329-a.) By the very terms of the hypothesis, to omit, wilfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the established rule in this State.” (Martin v. Herzog, 228 N. Y. 164, 168, per Cardozo, J.) The appellants lean heavily upon that and kindred cases and the principle established by them.

The analogy is, however, incomplete. The “established rule” should not be weakened either by subtle distinctions or by extension beyond its letter or spirit into a field where “by the very terms of the hypothesis” it can have no proper application. At times the indefinite and flexible standard of care of the traditional reasonably prudent man may be, in the opinion of the Legislature, an insufficient *130measure of the care which should be exercised to guard against a recognized danger; at times, the duty, imposed by custom, that no man shall use what is his to the harm of others provides insufficient safeguard for the preservation of the life or limb or property of others. Then the Legislature may by statute prescribe additional safeguards and may define duty and standard of care in rigid terms; and when the Legislature has spoken, the standard of the care required is no longer what the reasonably prudent man would do under the circumstances but what the Legislature has commanded that is the rule established by the courts and “by the very terms of the hypothesis” the rule applies where the Legislature has prescribed safeguards “for the benefit of another that he may be preserved in life or limb.” In that field debate as to whether the safeguards so prescribed are reasonably necessary is ended by the legislative fiat. Obedience to that fiat cannot add to the danger, even assuming that the prescribed safeguards are not reasonably necessary and where the legislative anticipation of dangers is realized and harm results through heedless or willful omission of the prescribed safeguard, injury flows from wrong and the wrongdoer is properly held responsible for the consequent damages.

The statute upon which the defendants rely is of different character. It does not prescribe additional safeguards which pedestrians must provide for the preservation of the life or limb or property of others, or even of themselves, nor does it impose upon pedestrians a higher standard of care. What the statute does provide is rules of the road to be observed by pedestrians and by vehicles, so that all those who use the road may know how they and others should proceed, at least under usual circumstances. A general rule of conduct — and, specifically, a rule of the road — may accomplish its intended purpose under usual conditions, but, when the unusual occurs, strict observance may defeat the purpose of the rule and produce catastrophic results.

Negligence is failure to exercise the care required by law. Where a statute defines the standard of care and the safe*131guards required to meet a recognized danger, then, as we have said, no other measure may be applied in determining whether a person has carried out the duty of care imposed by law. Failure to observe the standard imposed by statute is negligence, as matter of law. On the other hand, where a statutory general rule of conduct fixes no definite standard of care which would under all circumstances tend to protect life, limb or property but merely codifies or supplements a common-law rule, which has always been subject to limitations and exceptions; or where the statutory rule of conduct regulates conflicting rights and obligations in manner calculated to promote public convenience and safety, then the statute, in the absence of clear language to the contrary, should not be construed as intended to wipe out the limitations and exceptions which judicial decisions have attached to the common-law duty; nor should it be construed as an inflexible command that the general rule of conduct intended to prevent accidents must be followed even under conditions when observance might cause accidents. We may assume reasonably that the Legislature directed pedestrians to keep to the left of the center of the road because that would cause them to face traffic approaching in that lane and would enable them to care for their own safety better than if the traffic approached them from the rear. We cannot assume reasonably that the Legislature intended that a statute enacted for the preservation of the life and limb of pedestrians must be observed when observance would subject them to more imminent danger.

The distinction in the effect of statutes defining a standard of care or requiring specified safeguards against recognized dangers and the effect of statutes which merely codify, supplement or even change common-law rules or which prescribe a general rule of conduct calculated to prevent accidents but which under unusual conditions may cause accidents, has been pointed out often. Seldom have the courts held that failure to observe a rule of the road, even though embodied in a statute, constitutes negligence as matter of law where observance would subject a person to *132danger which might be avoided by disregard of the general rule. “In the United States and in England certain rules regarding the rights of vehicles and persons meeting or passing in the public highway have been established by long continued custom or usage, or, in many jurisdictions, by statutory regulation. These rules and regulations are usually spoken of as ‘the law of the road’ or the ‘rules of the road.’ These rules are, however, not inflexible, and a strict observance should be avoided when there is a plain risk in adhering to them, and one who too rigidly adheres to such rules when the injury might have been averted by variance therefrom, may be charged with fault; * * * the exceptions to the rule of the road depend upon the special circumstances of the case, and in respect to which no general rule can be applied.” (13 Ruling Case Law, tit. “Highways,” § 222. Cf. Clarke v. Woop, 159 App. Div. 437; 2 Thomas on Negligence [2d ed.], p. 2346; 3 Shearman & Redfield on The Law of Negligence, § 649; Herdman v. Zwart, 167 Iowa, 500, 503; McElhinney v. Knittle, 199 Iowa, 278; Piper v. Adams Express Co., 270 Penn. St. 54; Dohm v. Cardozo, 165 Minn. 193; Snow v. Biggs, 172 Ark. 835, 840. See, also, 24 A. L. R. 1304, note; 63 A. L. R. 277, note.)

The generally accepted rule and the reasons for it are set forth in the comment to section 286 of the Restatement of the Law of Torts: “Many statutes and ordinances are so worded as apparently to express a universally obligatory rule of conduct. Such enactments, however, may in view of their purpose and spirit be properly construed as intended to apply only to ordinary situations and to be subject to the qualification that the conduct prohibited thereby is not wrongful if, because of an emergency or the like, the circumstances justify an apparent disobedience to the letter of the enactment. The provisions of statutes, intended to codify and supplement the rules of conduct which are established by a course of judicial decision or by custom, are often construed as subject to the same limitations and exceptions as the rules which they supersede. Thus, a *133statute or ordinance requiring all persons to drive on the right side of the road may be construed as subject to an exception permitting travellers to drive upon the other side, if so doing is likely to prevent rather than cause the accidents which it is the purpose of the statute or ordinance to prevent.”

Even under that construction of the statute, a pedestrian is, of course, at fault if he fails without good reason to observe the statutory rule of conduct. The general duty is established by the statute, and deviation from it without good cause is a wrong and the wrongdoer is responsible for the damages resulting from his wrong. (Cf. Dohm v. Cardozo, supra; Heidman v. Zward, supra; Clarke v. Woop, supra.)

I have so far discussed the problem of the plaintiffs’ right to compensation for the damages caused by defendants’ negligence as if it depended solely upon the question of whether the pedestrians were at fault, and I have ignored the question whether their alleged fault was a proximate cause of the accident. In truth, the two questions cannot be separated completely. If the pedestrians had observed the statutory rule of the road they would have proceeded easterly along the roadway on the left of the center grass plot, and then, it must be conceded, they would not have been struck by the automobile in which the defendants were riding, proceeding in the same direction along the roadway on the right. Their presence on the roadway where they were struck was an essential condition of their injury. Was it also as matter of law a proximate cause of the accident? “The position of a vehicle, which has been struck by another, may or may not have been one of the causes of the striking. Of course it would not have been struck if it had not been in the place where the blow came. But this is a statement of an essential condition, and not of a cause of the impact. The distinction is between that which directly or proximately produces, or helps to produce, a result as an efficient cause, and that which is a necessary condition or attendant circumstance of it. *134* * * What is a contributing cause of an accident is usually a question for a jury, to be determined by the facts of the particular case.” (Newcomb v. Boston Protective Department, 146 Mass. 596, 604.) Here the jury might find that the pedestrians avoided a greater, indeed an almost suicidal, risk by proceeding along the east bound roadway; that the operator of the automobile was entirely heedless of the possibility of the presence of pedestrians on the highway; and that a pedestrian could not have avoided the accident even if he had faced oncoming traffic. Under those circumstances the question of proximate cause, as well as the question of negligence, was one of fact.

In each action, the judgment should be affirmed, with costs.

Crane, Ch. J., Hubbs, Loughran and Rippey, JJ., concur; O’Brien and Finch, JJ., dissent on the authority of Martin v. Herzog (228 N. Y. 164).

Judgments affirmed.

4.3.2.2 Modern Cases 4.3.2.2 Modern Cases

4.3.2.2.1 Bowen v. Baumgardner ("The No Parking Sign Case") 4.3.2.2.1 Bowen v. Baumgardner ("The No Parking Sign Case")

Was violating the crosswalk statute negligence per se? Was it non-negligent as a matter of law, or something else?

Washington Court of Appeals

6 Wash. App. 18

No. 740-1

1971-12-13

[No. 740-1.

Division One—Panel 1.

December 13, 1971.]

Ralph Bowen, as Guardian, Appellant, v. Emelia Baumgardner, Defendant, Joe Doe Hobart et al., Respondents.

*19 Clodfelter, Lindell & Carr and Jerome R. Cronk, for appellant.

Miracle & Pruzan, for respondents.

Horowitz, C.J.

The minor plaintiff appeals from the summary judgment dismissing her claim for negligence against the defendants Hobart. The claim for negligence is based on the Hobarts’ alleged illegal parking of their car in an unmarked intersection at N.E. 65th Street and 34th Avenue N.E. in Seattle, Washington. Plaintiff contends that defendants Hobart were either guilty of negligence per se, or the issue of their negligence raises questions of fact precluding the entry of summary judgment under CR 56.

N.E. 65th Street in Seattle is a 36-foot-wide street running in an easterly-westerly direction. A 6-foot sidewalk adjoins and runs parallel to that street to the south. Thirty-fourth Avenue N.E. is a street 26 feet wide, running in a northerly-southerly direction. A 3-foot sidewalk adjoins and runs parallel to that street on its easterly side. Thirty-fourth Avenue N.E. runs south into N.E. 65th Street at right angles, but the former does not run beyond the southerly boundary of N.E. 65th Street. It thus forms a T-intersection at that point. A pedestrian on the 6-foot sidewalk who seeks to cross over to the 3-foot sidewalk in plain view on 34th Avenue N.E. could proceed in the path of an unmarked crosswalk — a prolongation of the 3-foot sidewalk into N.E. 65th Street. A telephone pole is located on the 6-foot sidewalk approximately opposite the southerly edge of the 3-foot sidewalk on 34th Avenue N.E., across the street. A “No Parking 4-6 PM” sign is on the telephone pole, placed there by the City of Seattle.

Defendants Hobart had lived in a nearby apartment for approximately 1 year. During that period it was customary practice for motorists, including defendants Hobart, in the belief that it was legal so to do, to park cars where the *20Hobart car was parked at all hours except during the 4 to 6 p.m. no parking period specified by the sign affixed to the telephone pole. The Hobarts had never been given a traffic ticket for illegal parking, and they had seen police cars, conducting radar traffic checks, parked at the same place where their car in the instant case was parked.

On the morning of March 2, 1968, the Hobarts’ oar, facing east, was parked on the south side of N.E. 65th Street, the front end of the car being approximately 5 feet west of the telephone pole. At about 10:20 a.m., plaintiff 6-year-old child was walking on the 6-foot sidewalk, then left it to cross to the other side of the street. In crossing, she passed between the front of the defendant Hobarts’ car and the telephone pole. When she reached a point near the left front of the Hobart car, she looked east down N.E. 65th Street and then, without looking to the west, she started to run across the street. As she did so, she was struck by defendant Mrs. Baumgardner’s car, then traveling in an easterly direction. Mrs. Baumgardner’s view of the minor plaintiff was blocked by the Hobart car and she did not see her in time to avoid striking her.

The controlling question presented is whether the negligence claimed by the party plaintiff raises possible issues of fact precluding the entry of summary judgment.

RCW 46.61.570(1) (b) (iii) in substance provides that, with certain exceptions, no persons may park a vehicle within 20 feet of a crosswalk. See RCW 46.04.160.1 It is conceded that the Hobart car was parked within 20 feet of the unmarked crosswalk formed by the prolongation of the 3-foot sidewalk into and across N.E. 65th Street.

The purpose of statutes such as RCW 46.61.570(1) (b) (iii) is “to prevent motor vehicles from blocking the view of other motorists entering the intersection, and to keep the way clear for pedestrians.” 7 Am. *21Jur. 2d Automobiles and Highway Traffic § 232 (1963, Supp. 1971). Accord, D. Blashfield, Automobile Law and Practice § 116.30 (3d ed. 1965, Supp. 1971). The unexcused parking of an automobile in a place forbidden by legislative enactment is what amounts to negligence per se. Tierney v. Riggs, 141 Wash. 437, 252 P. 163 (1926). See Greisen v. Robbins, 36 Wn.2d 64, 216 P.2d 210 (1950); D. Blashfield, Automobile Law and Practice § 116.14 (3d ed. 1965, Supp. 1971). However, when the issue is one of reasonable care under the circumstances, the existence of lawful excuse or justification may prevent a violation of statute from being negligence per se. As stated by our Supreme Court in White v. Peters, 52 Wn.2d 824, 329 P.2d 471 (1958), quoting with approval from Prosser on Torts:

“Where the statute is interpreted as intended to protect the class of persons in which the plaintiff is included [plaintiff White is included in this class], against the risk of the type of harm which has in fact occurred, the weight of authority holds that an unexcused violation is negligence in itself, and that the court must so direct the jury.”

52 Wn.2d at 828. In Burlie v. Stephens, 113 Wash. 182, 189, 193 P. 684 (1920), our Supreme Court said:

Circumstances may arise where it is entirely proper, in the exercise of reasonable care, to violate the ordinance

The principle that the violation of an ordinance or statute may be excused or justified so as not to constitute negligence per se has also been recognized or applied in a number of Washington cases cited in the margin,2 as well as considered or recognized in legal writings in the tort field. See generally, Restatement (Second) of Torts §§ 288 A, 288' *22B (1965); D. Blashfield, Automobile Law and Practice § 416.2 at 43, and § 116.15 (3d ed. 1965 and 1968, Supp. (1971)); F. Harper and F. James, The Law of Torts § 17.6 at 1007 to 1011 (1956, Supp. 1968). The burden of going forward with evidence of excuse or justification as a defense to a charge of negligence per se is upon the party who has violated the statute. Goldfarb v. Wright, 1 Wn. App. 759, 463 P.2d 669 (1970). See Leach v. Weiss, 2 Wn. App. 437, 467 P.2d 894 (1970).

We cannot say from the summary judgment affidavit that the defendants Hobart sustained the burden of negativing possible fact issues predicated upon excuse or justification for violating RCW 46.61.570(1)(b)(iii). It is true the excuse or justification here is not based upon some unavoidable emergency or physical disability leaving defendants Hobart with no choice but to park where they did so that it could be said that the violation was “due to some oause beyond the violator’s control . . . and a violation against which reasonable prudence could not have guarded.” Jess v. McNamer, 42 Wn.2d 466, 255 P.2d 902 (1953). Were these the basis of claimed excuse or justification for violating RCW 46.61.570(1) (b) (iii), no fact issue would exist under the facts stated by the sole summary judgment affidavit. Excuse or justification may be based on other grounds as well, e.g., Restatement (Second) of Torts §§ 288 A, 288 B (1965). In the instant case, defendants rely upon the “No Parking 4-6 PM” sign as excuse or justification for parking where they did during the morning of the accident. Plaintiff disputes the validity of the justification claimed. The guardian ad litem argues that if the sign constitutes an “official traffic-control device” within the meaning of RCW 46.61.570 so as to permit an exception to the statutory prohibition of parking, it is unauthorized because it is one “inconsistent with Title 46 RCW placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning or guiding traffic.” RCW 46.04.611. See Krogh v. Pemble, 50 Wn.2d 250, 310 P.2d 1069 (1957).

*23Whether or not the sign was authorized, however, it could not be ignored. If unauthorized by law, a motorist could treat the sign as presumptively a lawful one (see Lyle v. Fiorito, 187 Wash. 537, 60 P.2d 709 (1936)). In any case, it was a de facto sign. A motorist, in the exercise of reasonable care, was required to respect it. As stated in Comfort v. Penner, 166 Wash. 177, 6 P.2d 604 (1932):

Travelers upon public highways are not expected to first ascertain and determine whether such signs are established in strict compliance with law, before respecting them.

166 Wash. at 183. Fothergill v. Kaija, 183 Wash. 112, 48 P.2d 643 (1935); Clinkscales v. Carver, 22 Cal. 2d 72, 136 P.2d 777 (1943). See also, Radosevich v. County Comm’rs, 3 Wn. App. 602, 476 P.2d 705 (1970). Cf., McCandless v. Inland Northwest Film Serv., Inc., 64 Wn.2d 523, 392 P.2d 613 (1964).

In respecting the sign, whether de jure or de facto, it would be apparent that it permitted, but did not mandatorily require, parking at the particular spot chosen by the Hobarts. The sign in effect and at best left it optional with the Hobarts whether, during the nonprohibited hours, they would or would not park where they did. In exercising this optional choice, the Hobarts were required to act reasonably, taking into account other users of the street. Thus it can scarcely be claimed that had the Hobarts known that it was dangerous to park at the particular spot, even if it was customary practice so to do, that they would have been free of negligence in doing so in face of such known danger. See D. Blashfield, Automobile Haw and Practice §§ 51.8, 102.41 (3d ed. 1965, Supp. 1971); 57 Am. Jur. 2d Negligence § 78 (1971). Similarly, if, instead of actual knowledge, they were charged with knowledge of the dangerous character of parking where they did, the same rule should apply. There is a common-law duty upon motorists to “exercise reasonable and ordinary care” to select a place of parking “so that [the car’s] presence will not constitute a source of danger to other users of the highway.” Gelling v. Golden *24 Arrow Farms, 39 Wn.2d 87, 92, 234 P.2d 539 (1951). See also McGovern v. Greyhound Corp., 53 Wn.2d 773, 337 P.2d 290 (1959); Swanson v. Gilpin, 25 Wn.2d 147, 169 P.2d 356 (1946). See generally, Annot., 4 A.L.R.3d 324 (1965, Supp. 1970). This rule is consistent with the statutory rules of the road dealing with stopping, standing and parking, as well as pedestrian rights and duties. RCW 46.61.560-.580; RCW 46.61.230-.260. See also RCW 46.08.020-.030.

Whether the defendants Hobart, on the issue of excuse or justification, exercised reasonable and ordinary care in parking where they did in reliance upon the sign as customarily interpreted, taking into account the vision-blocking effects in so parking as to pedestrians, including the minor plaintiff, raises a question of fact. Swanson v. Gilpin, supra. For the reasons stated, therefore, the summary judgment was premature.

The judgment is reversed.

James and Swanson, JJ., concur.

4.3.2.2.2 Tingle v. C., B. & Q. R. ("The Sunday Case") 4.3.2.2.2 Tingle v. C., B. & Q. R. ("The Sunday Case")

What goes wrong in this case? Which element of a negligence per se theory is not satisfied?

Iowa Supreme Court

60 Iowa 333

1882-12-15

Tingle v. C., B. & Q. R. Co.

1. Kailroads; violation oe Sunday law: damage to stock. A railroad company incurs no other penalty for running trains on Sunday than the fine provided by section 4072 of the Code. The liability of such company for killing an animal by a train run on Sunday is to be determined by the same rules as if the accident had occurred on a secular day.

Appeal from Lucas Circuit Court.

Friday, December 15.

The plaintiff claims of the defendant thirty-five dollars, for the alleged killing of plaintiff’s cow upon a public highway, by a locomotive and train operated by the defendant on Sunday. The defendant filed a demurrer to the petition, which the court overruled. The defendant elected to stand upon its demurrer, and judgment was entered against the defendant for the amount claimed. The defendant appeals.

Stua/rt Bros., for appellant.

W. 8. Dungan, for appellee.

Day, J.

The amount in controversy not exceeding one hundred dollars, the court certified for our determination 'the following question: “When a railroad company unlawfully runs its trains on Sunday, in violation of the provisions of section 4072 of the Code, and while so running, strikes and kills a cow at a point where its track crosses a public highway, when said animal was lawfully running at large at the time, is said railroad company liable for said injury, in the absence of negligence on the part of the railroad or its employes operating said trains?” Section 4072 of the Code provides that if any person be found on the first day of the week, commonly called Sabbath, engaged in any labor, the work of necessity and charity only excepted, he shall, on con*334viction, be fined in a sum not more than five dollars, nor less than one dollar. The question which we have now to determine is whether the simple operation of a train, in violation of the provisions of this statute, renders a railroad company liable for all damages accidently occurring, without fault or negligence on its part, other than the mere operating of the train. Although this question has never been determined in this State, yet principles have been settled which, in our opinion, are decisive of it. In Schmid v. Humphrey, 48 Iowa, 652, it was held that the right of a party to recover damages for injuries resulting from the frightening of his horses by the defendant’s dogs, was not affected by the fact that the injury was sustained whilst the plaintiff was riding on a business errand on Sunday, in violation of the provisions of section 4072 of the Code. In Sutton v. The Town of Wauwatossa, 29 Wis., 21, after an exhaustive review of the authorities, it was held that the fact that plaintiff was driving his cattle to market on' Sunday, in violation of the statute, when they were injured by the breaking down of a defective bridge which the defendant town was bound to maintain, would not prevent a recovery, upon due proof of defendant’s negligence in constructing and maintaining such bridge. Now, if the mere fact that a party is engaged in employment upon the Sabbath day, in violation of statute, will not defeat recovery for an injury sustained whilst so employed, it follows, we think, that the mere fact that a person is so employed will not render him liable for injuries inflicted without other fault or negligence than the being so employed. It is true that if the defendant’s train had not been operated on Sunday, the injury complained of would not have occurred. It is also true, in the cases of Schmid v. Humphrey, and Sutton v. The Town of Wauwatossa, supra, that if the plaintiffs had not, in violation of statute, been at the places where the injuries of which they complained were inflicted, the injuries would not have been sustained. Yet in both cases it was in eifect held, that the fact of the parties being at the places in *335question, and engaged in an unlawful employment, did not proximately contribute to the injuries of which they complained. So, in this case, whilst the injury could not have been inflicted if the defendant’s train had not been operated, still, as it is not claimed that the train was operated in a negligent manner, the proximate cause of the injury was not the operation of the train, but it resulted from an accident for which the defendant is not responsible. The cases in this court in which a party has been held liable in damages for the violation of a statute, have all been cases in which the unlawful act contributed to the injury. In our opinion, no other liability is incurred by the operation of a railway train in violation of the provisions of section 4072 of the Code, than that which the statute itself imposes. It follows that the demurrer to the plaintiff’s petition should have been sustained.

Reversed.

4.3.3 Violation of Custom 4.3.3 Violation of Custom

4.3.3.1 Texas & Pacific Railway Co. v. Behymer ("The Holmes Quote Case") 4.3.3.1 Texas & Pacific Railway Co. v. Behymer ("The Holmes Quote Case")

Supreme Court of the United States

189 U.S. 468, 47 L. Ed. 905, 23 S. Ct. 622, SCDB 1902-147, 1903 U.S. LEXIS 1375

No. 224

1903-04-20

TEXAS AND PACIFIC RAILWAY COMPANY v. BEHYMER.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 224.

Argued March 20, April 6, 1903.

Decided April 20, 1903.

Tn an action for personal injuries sustained by a brakeman by falling from a car, where the claim was based upon negligence in stopping the car suddenly with knowledge of his position and of the slippery condition of the roof of the car, and also upon the projection of a nail in the roof of the car which increased the danger and contributed to his fall, \eld, there was no error in the court declining to rule that the chance of such an accident was one of the risks assumed by the plaintiff, or that the question whether the defendant was liable depended on whether the freight train was handled in the usual and ordinary way. It was proper for the court to leave it to the jury to say whether the train was handled with due care.

The case is stated in the opinion of the court.

Mr. D. D. Duncan for plaintiff in error. Mr. John F. Dillon and Mr. Winslow S. Pierce were on the brief.

Mr. Cone Johnson for defendant in error. .

Me. Justice Holmes

delivered the opinion of the court.

This is an action for personal injuries brought by an employé against a railroad company. It was tried in the Circuit Court, where the plaintiff had a verdict. It then was taken to the .Circuit Court of Appeals on a writ of error and bill of excep*469tions by the company, 112 Fed. Rep. 35, and now is brought here on a further writ of error, the company being a United States corporation. A good deal of the argument for the railroad is devoted to disputing the testimony of the plaintiff below and arguing that the verdict was excessive, but of course we have nothing to do with that. New York, Lake Erie & Western Railroad v. Winter, 143 U. S. 60, 75; Lincoln v. Power, 151 U. S. 436. We must assume the most favorable statement of the plaintiff’s case to be true, unless some particular request for instructions makes it necessary to deal with conflicting evidence. That statement may be made in a few words.

Behymer had been in the employ of the company as a brakeman about three months. On February 7,1899, at Big Sandy, in Texas, he was ordered by the conductor of a local freight train to get up on some cars standing on a siding and, let off the brakes, so that the engine might move them to the main track and add them to the train. The tops of the cars were covered with ice, as all concerned knew. He obeyed orders; the engine picked up the cars,, moved to the main track and stopped suddenly. The cars ran forward to the extent of the slack and back again, as they were moving up hill. The jerk upset Behymer’s balance, the bottom of his trousers caught in a projecting nail in the running board and he was thrown between the cars. It is true that the jury might have drawn a different conclusion from his evidence or have disbelieved it in essential points, but they also were at liberty to find, as they must be taken to have found, that the foregoing statement is true. The car belonged to another road but was in the charge of the defendant company, and, according to the statement of the counsel for the plaintiff in error, had been inspected before the accident, although we should have doubted whether the testimony meant to go so far.. Behymer based his claim upon negligence in stopping the cars so suddenly with knowledge of his position and the slippery condition of the roof of the car, and upon the projection of the nail, which increased the danger and contributed to Ins fall. It should be added that by a statute of Texas if there was negligence the fact that it was the *470negligence of a fellow servant was not a defence. -General Laws, Texas, 1897, Special Session, c. 6, § 1; 2 Sayles, Texas Civil Stat. 1897, art. 4560 f.

The fundamental error alleged in the exceptions to the charge is that the court declined to rule that the chance of such an accident as happened was one of the risks that the plaintiff assumed, or that the question whether the defendant was liable for it depended on whether the freight train was handled in the usual and ordinary way. Instead of that, the court left it to the jury to say whether the train was handled with ordinary care, that is, the care that a person of ordinary prudence would use under the same circumstances. This exception needs no discussion. The charge embodied one of the commonplaces of the law. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not. Wabash Railway Co. v. McDaniels, 107 U. S. 454. No doubt a certain amount of bumping and jerking is to be expected on freight trains, and, under ordinary circumstances, ' cannot be complained of. Yet it can be avoided if necessary, and when the particular and known condition of the train makes a sudden bump obviously dangerous to those known to be on top of the cars, we are not prepared to say that a jury would not be warranted in finding that an easy stop is a duty. If it was negligent to stop as the train did stop, the risk of it was not assumed by the plaintiff. Texas & Pacific Ry. v. Archibald, 170 U. S. 665, 672.

However, the plaintiff did not rely on the management of the train alone. The projecting nail was another element in his case. The jury were instructed with regard to that, that the railroad company was not liable unless there was a nail there improperly projecting, and a reasonable inspection would have discovered and remedied the defect. The car was in. the custody of the company. There is no suggestion that the company had not had an opportunity to inspect, and the contrary was assumed by a request for instructions on the part of the company. Indeed, as we have said, its counsel interprets the evidence as meaning that the car had been inspected before *471the accident. It is not pressed that there was error on this point. See Mackin v. Boston & Albany Railroad, 135 Massachusetts, 201; Glynn v. Central Railroad, 175 Massachusetts, 510, 512. The jury were instructed properly on the subject of assumption of risks and contributory negligence, and we think it unnecessary to deal more specifically with this part of the case.

. It was argued that Behymer had aggravated the injury by refusing proper surgical treatment. With regard to this the jury were instructed in substance, but at more length, that it was his duty to submit to all treatment that a reasonably prudent person would have submitted to in order to improve his condition, and that no damages could be allowed which might have been prevented' by reasonable care. It is suggested that, as a prudent man, he might , have postponed recovery from his injury to' recovery of damages. The instructions plainly excluded such, a view. The argument hardly is serious. We have examined all the minute criticisms on the rulings and refusals to rule, and discover no error. We deem it unnecessary to answer them in greater detail. ■

Judgment affirmed.

4.3.3.2 Norton v. Railway Express Agency, Inc. ("The Barrel of Meat Case") 4.3.3.2 Norton v. Railway Express Agency, Inc. ("The Barrel of Meat Case")

United States Court of Appeals for the Third Circuit

412 F.2d 112

No. 17715

1969-07-09

Jacob NORTON, Appellant, v. RAILWAY EXPRESS AGENCY, INC.

No. 17715.

United States Court of Appeals Third Circuit.

Submitted May 20, 1969.

Decided July 9, 1969.

*113Leonard E. Price, Price, Bercik & Kernan, Oakdale, Pa. (Herbert J. Johnson, Jr., Evans, Johnson, Searpitti, Bernard & Wittmann, Erie, Pa., on the brief), for appellant.

John A. Spaeder, Marsh, Spaeder, Baur, Spaeder & Schaaf, Erie, Pa., for appellee.

Before FREEDMAN, SEITZ and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This is a tort action sounding in negligence which is in the federal courts solely because of the diversity of citizenship of the litigants. It requires us to consider the familiar doctrines of reasonable care and respondeat superior as interpreted by the courts of Pennsylvania. The facts are not complicated.

The plaintiff-appellant worked as a handyman for a supper club in Erie, Pennsylvania. In response to a club order for food, the defendant-appellee Railway Express delivered a 226 pound barrel of meat to the premises. On arrival, the defendant’s deliveryman was requested by the appellant to unload the cargo by way of a stairway leading to the cellar. It was decided that the barrel would be placed on a wheeled dolly or truck and lowered step by step to the delivery point in the cellar.

The appellant positioned himself on the steps and held the bottom of the barrel; the deliveryman held the top. Step by step the barrel was eased down the stairs toward the cellar. Something then occurred, described with exquisite imprecision by the participants 1 and culminating in the barrel’s unscheduled rapid descent to a resting place on top of the plaintiff.

In support of his personal injuries claim against the defendant-employer, the plaintiff proffered the testimony of an expert witness on the subject of the methods customarily employed in the delivery of barreled cargo. The district court rejected the relevancy of this offer, and at the close of testimony, directed a verdict for the defendant on the alternative grounds that no negligence had been established or that the plaintiff had been contributorily negligent as a matter of law.

We might have agreed with the result reached by the court below had the sole question of negligence been limited to the conduct of the participants in the unloading episode. Considered from this constricted viewpoint, the result could have been justified on the ground that the plaintiff failed to delineate any particular act amounting to a breach of care on the defendant’s part. Present and germane to this case, however, was a broader concept of negligence: the method chosen to lower the barrel, as distinguished from the role the participants played in the misadventure, may have been a breach of the ordinary care owed by the defendant to its customers. Inherent in the grant of the directed *114verdict was the unwarranted assumption that the choice of the method of delivery did not in itself present a separate and distinct issue of negligence. With proper supervision and instructions from the trial judge, it would be appropriate for the jury to consider whether the method used was itself a breach of care and the proximate cause of the injuries to the plaintiff.2

In this respect, the proffered testimony of the customary manner of delivering barreled cargo would be relevant. Although not controlling, custom and practice may be shown to establish the standard of care to which the party charged with the wrongful act may be required to conform. Accepted with the limitation that such evidence is only an indication of reasonable conduct, and mindful of Mr. Justice Holmes’ admonition that “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard or ordinary prudence, whether it is complied with or not,” 3 testimony on the customarily accepted method of lowering barrels of this size and bulk could have been received in evidence. Upon retrial, with a proper offer on the particularities of the testimony and with due consideration for the degree of expertise characterizing it, it may be that such testimony should be admitted.4

The final question raised on this appeal is whether the evidence was sufficient for a jury to find that the appel-lee’s deliveryman was acting within the scope of his employment in delivering the barrel by way of the cellar stairs. The appellee urges that the employee was instructed not to make cellar deliveries, that he attempted to do so solely at the insistence of the appellant, and that therefore no liability could attach from the doctrine of respondeat superior because the act of delivery was wholly outside the scope of the employment.

There is no question that under the law of Pennsylvania, the scope of the authority or employment of an agent or servant is a factual issue for jury determination.5 That the servant may have deviated from the literal instructions of the master does not necessarily relieve the master of liability for these acts.6 The master is still responsible if the performance occurs in the course of the employment with a view towards furthering the business of the master, and not with a purpose personal to the employee. We conclude there was sufficient evidence from which a jury might reasonably infer that the acts complained of were within the scope of the servant’s employment.

Accordingly, the judgment of the district court will be reversed and the case remanded for a new trial.

4.3.3.3 Trimarco v. Klein ("The Shattered Bathtub Glass Case") 4.3.3.3 Trimarco v. Klein ("The Shattered Bathtub Glass Case")

When is custom relevant to establishing the defendant's breach or compliance with duty? Were those requirements satisfied in this case?

New York Court of Appeals

56 N.Y.2d 98

1982-05-20

Vincent N. Trimarco et al., Appellants, v Irving Klein et al., Individually and as Copartners Doing Business as Glenbriar Company, Respondents.

Argued March 29, 1982;

decided May 20, 1982

*99POINTS OF COUNSEL

Thomas R. Newman, L. Kevin Sheridan and Louis G. Adolfsen for appellants.

I. Since plaintiff established a prima facie case of common-law negligence and the evidence supports the jury’s finding that defendants did not *100exercise reasonable care, the court below should not have disturbed the verdict of liability; certainly it should not have dismissed the complaint. (Sagorsky v Maylon, 307 NY 584; Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376; Cohen v Hallmark Cards, 45 NY2d 493; Stein v Palisi, 308 NY 293; Basso v Miller, 40 NY2d 233; Havas v Victory Paper Stock Co., 49 NY2d 381; Farrell v Royal Crown Bottling Co., 53 NY2d 619; Smith v Arbaugh’s Rest., 469 F2d 97; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Kane v Ten Eyck Co., 10 Misc 2d 398, 267 App Div 789, 292 NY 701.) II. In the event this court finds no common-law negligence, plaintiff should be permitted in the alternative to recover against defendants for breach of the warranty of habitability or strict liability in tort. (Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433; Quinlan v Cecchini, 41 NY2d 686; Part West Mgt. Corp. v Mitchell, 47 NY2d 316; Brownstein v Edison, 103 Misc 2d 316; Kaplan v Coulston, 85 Misc 2d 745; McBride v 218 E. 70th St. Assoc., 102 Misc 2d 279; Curry v New York City Housing Auth., 77 AD2d 534; Segal v Justice Ct. Mut. Housing Coop., 108 Misc 2d 1074; Codling v Paglia, 32 NY2d 330.) III. Evidence was properly received and the jury was properly instructed concerning the relevant statutes. (McCallin v Walsh, 64 AD2d 46, 46 NY2d 808; Hassan v Stafford, 472 F2d 88; Curtis v District of Columbia, 363 F2d 973; Edmonds, Inc. v Vojka, 332 F2d 309; Boston & Maine R. R. v Talbert, 360 F2d 286; Fluor Corp. v Black, 338 F2d 830; Caprara v Chrysler Corp., 52 NY2d 114; Halloran v Virginia Chems., 41 NY2d 386; Letendre v Hartford Acc. & Ind. Co., 21 NY2d 518; Fleury v Edwards, 14 NY2d 334.) IV. The trial court should not have submitted the issue of contributory negligence to the jury. Since there was no proper evidence to support it and, in any event, since plaintiff’s conduct was not unreasonable or imprudent, he cannot be considered negligent. (Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Wolf v City of New York, 39 NY2d 568; Matter of Allstate Ins. Co. [Spadaccini], 52 AD2d 813; Osleeb v Block, 36 AD2d 605; Horn v State of New York, 31 AD2d 364; Matter of Burris v Lewis, 2 NY2d 323; Matter of Riehl v Town of Amherst — Dept. of Highways, 308 NY 212; Blum v Fresh Grown Preserve Corp., 292 NY 241; Matter of Case, 214 NY 199.)

*101 Norman H. Dachs for respondents.

I. Plaintiff-appellant failed to establish any actionable negligence on the part of defendants as a matter of law. The complaint was properly dismissed. (Pulka v Edelman, 40 NY2d 781; Collins v Noss, 258 App Div 101; Basso v Miller, 40 NY2d 233; Garthe v Ruppert, 264 NY 290; Levine v Blaine Co., 273 NY 386; Fuchs v Brody, 282 NY 627; Burger v Fifth Ave. Coach Co., 249 NY 583; Lipner v Levy, 44 AD2d 797; Yeargans v Yeargans, 24 AD2d 280; Gustavson v Southern Blvd. R. R. Co., 292 NY 309.) II. Neither the “warranty of habitability” nor the strict liability doctrine is applicable herein. (Curry v New York City Housing Auth., 77 AD2d 534; Snyder v Moore, 72 AD2d 580.) III. The court below correctly held that the receipt in evidence of sections 389-m and 389-o of the General Business Law, despite the avowed purpose for which they were introduced, was error. (Jokelson v Allied Stores Corp., 31 AD2d 200, 806; Curry v New York City Housing Auth., 77 AD2d 534; Carhart v Relmar Operating Corp., 66 AD2d 680; Loeser v Nathan Hale Gardens, 73 AD2d 187; Siivonen v City of Oneida, 33 AD2d 934; Lodato v Town of Oyster Bay, 68 AD2d 904; Hassan v Stafford, 472 F2d 88; Florentine v Church of Our Lady of Mt. Carmel, 340 F2d 239; Gallagher v St. Raymond’s R. C. Church, 21 NY2d 554; Schuster v City of New York, 5 NY2d 75.) IV. Section 78 of the Multiple Dwelling Law is not applicable. (Kitchen v Landy, 215 App Div 586; Israel v Toonkel, 134 Misc 327; Cooperman v Anderson, 158 Misc 155; Block v Balden Realty Co., 129 Misc 906; Boyland v 1986 Grand Ave. Realty Corp., 169 Misc 881.) V. The trial court properly submitted the issue of plaintiff’s contributory negligence to the jury. VI. Plaintiffs’ counsel’s trial tactics constituted reversible error. (Cherry Creek Nat. Bank v Fidelity & Cas. Co. of N. Y., 207 App Div 787; Youngentob v Luongo, 139 Misc 840; Cohon & Co. v Pennsylvania Coal & Coke Corp., 10 AD2d 667; McCabe v Queensboro Farm Prods., 21 AD2d 67 5; Kohlmann v City of New York, 8 AD2d 598; Simpson v Foundation Co., 201 NY 479; Bromberg v City of New York, 25 AD2d 885; Bassi v City of New York, 7 AD2d 713; Williams v Long Is. R. R., 41 AD2d 940; MacDormand v Auchenpaugh, 29 AD2d 1022.)

*102OPINION OF THE COURT

Fuchsberg, J.

After trial by jury in a negligence suit for personal injuries, the plaintiff, Vincent N. Trimarco, recovered a judgment of $240,000. A sharply divided Appellate Division having reversed on the law and dismissed the complaint, our primary concern on this appeal is with the role of the proof plaintiff produced on custom and usage. The ultimate issue is whether he made out a case.

The controversy has its genesis in the shattering of a bathtub’s glass enclosure door in a multiple dwelling in July, 1976. Taking the testimony most favorably to the plaintiff, as we must in passing on the presence of a prima facie case, we note that, according to the trial testimony, at the time of the incident plaintiff, the tenant of the apartment in which it happened, was in the process of sliding the door open so that he could exit the tub. It is undisputed that the occurrence was sudden and unexpected and the injuries he received from the lacerating glass most severe.

The door, which turned out to have been made of ordinary glass variously estimated as one sixteenth to one quarter of an inch in thickness, concededly would have presented no different appearance to the plaintiff and his wife than did tempered safety glass, which their uncontradicted testimony shows they assumed it to be. Nor was there any suggestion that defendants ever brought its true nature to their attention.

Undeveloped in the trial record is the source of a hospital record entry which ascribed the plaintiff’s injuries to a “fall through his bathroom glass door”. Obviously, this may have been taken into account by the jury, since its verdict called for a reduction of its $400,000 gross assessment of damages by 40% to account for contributory negligence.1

As part of his case, plaintiff, with the aid of expert testimony, developed that, since at least the early 1950’s, a *103practice of using shatterproof glazing materials for bathroom enclosures had come into common use, so that by 1976 the glass door here no longer conformed to accepted safety standards. This proof was reinforced by a showing that over this period bulletins of nationally recognized safety and consumer organizations along with official Federal publications had joined in warning of the dangers that lurked when plain glass was utilized in “hazardous locations”, including “bathtub enclosures”.2 Over objection, the trial court also allowed in sections 389-m and 389-0 of New York’s General Business Law, which, enacted in 1972 though effective only as of July 1, 1973, required, on pain of criminal sanctions, that only “safety glazing material” be used in all bathroom enclosures after the effective date;3 however, the court carefully cautioned the jury that, because the statute did not apply to existing installations, of which the glass in question was one, it only was to be considered “along with all the other proof in this case, as a standard by which you may measure the conduct of the defendants”. And, on examination of the defendants’ managing agent, who long had enjoyed extensive familiarity with the management of multiple dwelling units in the New York City area, plaintiff’s counsel elicited agreement that, since at least 1965, it was customary for landlords *104who had occasion to install glass for shower enclosures, whether to replace broken glass or to comply with the request of a tenant or otherwise, to do so with “some material such as plastic or safety glass”.

In face of this record, in essence, the rationale of the majority at the Appellate Division was that, “assuming that there existed a custom and usage at the time to substitute shatterproof glass” and that this was a “better way or a safer method of enclosing showers” (82 AD2d, p 23), unless prior notice of the danger came to the defendants either from the plaintiff or by reason of a similar accident in the building, no duty devolved on the defendants to replace the glass either under the common law or under section 78 of the Multiple Dwelling Law.4 To this the court added that, were it not dismissing, it would have ordered a new trial because, in its view, the admission of the afore-mentioned sections of the General Business Law, even with the reservations attached by the Trial Judge, constituted reversible error.

In a dissenting opinion, Justice Leonard Sandler disagreed on both counts; on the underlying liability issue, he found that the plaintiff had presented a clear question of fact for the jury and, on the evidentiary one stemming from the submission of the General Business Law, after noting that a careful marshaling of authorities had persuaded him that it was a “close question” (82 AD2d, p 28), he opined that whether the statute should have gone to the jury was properly within the Trial Judge’s discretion. Concurring in part and dissenting in part, Justice Arnold Fein, writing separately, took the position that, while there indeed was “ample” evidence of custom and usage to support the plaintiff’s verdict, a new trial was required since the advice to the jury of the contents of the statute, no matter how cushioned by qualifications, “could only be misleading” (82 AD2d, p 30).

For the reasons which follow, we agree with Justice Sandler and Justice Fein that plaintiff established a *105prima facie case. However, we would not disturb the conclusion of Justice Fein and the majority that the General Business Law did not belong in the case.

Our analysis may well begin by rejecting defendants’ contention that the shower door was not within the compass of section 78 of the Multiple Dwelling Law. From early on, it was understood that this statute was enacted in recognition of the reality that occupants of tenements in apartment houses, notwithstanding their control of the rented premises, as a practical matter looked to their landlords for the safe maintenance of the tenanted quarters as well. The result was that, if responsibility for keeping “every part thereof * * * in good repair” was not placed on the landlords, defects would remain unremedied (Multiple Dwelling Law, § 78; see Altz v Leiberson, 233 NY 16, 19). Therefore, though early cases may have chosen to give the statutory phrase “every part” a restrictive connotation (e.g., Kitchen v Landy, 215 App Div 586 [defective coal stove]; and Boylan v 1986 Grand Ave. Realty Corp., 169 Misc 881 [defective clothes drier]), later cases made clear that the remedial reach of the legislation mandated a more expansive interpretation under which fixtures or appliances furnished by the landlord were found to be within the statutory intendment (Herring v Slattery & Bros., 266 App Div 719, affd 291 NY 794 [defective gas range]; Rosen v 2070 Davidson Ave. Corp., 246 App Div 588, mot for lv to app den 270 NY 676 [defective clothes drier]).

Which brings us to the well-recognized and pragmatic proposition that when “certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that [the one charged with the dereliction] has fallen below the required standard” (Garthe v Ruppert, 264 NY 290, 296). Such proof, of course, is not admitted in the abstract. It must bear on what is reasonable conduct under all the circumstances, the quintessential test of negligence.

It follows that, when proof of an accepted practice is accompanied by evidence that the defendant conformed to *106it, this may establish due care (Bennett v Long Is. R. R. Co., 163 NY 1, 4 [custom not to lock switch on temporary railroad siding during construction]), and, contrariwise, when proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability (Levine v Blaine Co., 273 NY 386, 389 [custom to equip dumbwaiter with rope which does not splinter]). Put more conceptually, proof of a common practice aids in “formulating] the general expectation of society as to how individuals will act in the course of their undertakings, and thus to guide the common sense or expert intuition of a jury or commission when called on to judge of particular conduct under particular circumstances” (Pound, Administrative Application of Legal Standards, 44 ABA Rep, 445, 456-457).

The source of the probative power of proof of custom and usage is described differently by various authorities, but all agree on its potency. Chief among the rationales offered is, of course, the fact that it reflects the judgment and experience and conduct of many (2 Wigmore, Evidence [3d ed], § 461; Prosser, Torts [4th ed], § 33). Support for its relevancy and reliability comes too from the direct bearing it has on feasibility, for its focusing is on the practicality of a precaution in actual operation and the readiness with which it can be employed (Morris, Custom and Negligence, 42 Col L Rev 1147, 1148). Following in the train of both of these boons is the custom’s exemplification of the opportunities it provides to others to learn of the safe way, if that the customary one be. (See Restatement, Torts 2d, § 295A, Comments a, b.)

From all this it is not to be assumed customary practice and usage need be universal. It suffices that it be fairly well defined and in the same calling or business so that “the actor may be charged with knowledge of it or negligent ignorance” (Prosser, Torts [4th ed], § 33, p 168; Restatement, Torts 2d, § 295A, p 62, Comment a).

However, once its existence is credited, a common practice or usage is still not necessarily a conclusive or even a compelling test of negligence (1 Shearman & Redfield, Negligence [rev ed], § 10). Before it can be, the jury must *107be satisfied with its reasonableness, just as the jury must be satisfied with the reasonableness of the behavior which adhered to the custom or the unreasonableness of that which did not (see Shannahan v Empire Eng. Corp., 204 NY 543, 550). After all, customs and usages run the gamut of merit like everything else. That is why the question in each instance is whether it meets the test of reasonableness. As Holmes’ now classic statement on this subject expresses it, “[w]hat usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not” (Texas & Pacific Ry. Co. v Behymer, 189 US 468, 470).

So measured, the case the plaintiff presented, even without the insertion of sections 389-m and 389-o of the General Business Law, was enough to send it to the jury and to sustain the verdict reached. The expert testimony, the admissions of the defendant’s manager, the data on which the professional and governmental bulletins were based, the evidence of how replacements were handled by at least the local building industry for the better part of two decades, these in the aggregate easily filled that bill. Moreover, it was also for the jury to decide whether, at the point in time when the accident occurred, the modest cost and ready availability of safety glass and the dynamics of the growing custom to use it for shower enclosures had transformed what once may have been considered a reasonably safe part of the apartment into one which, in the light of later developments, no longer could be so regarded.

Furthermore, the charge on this subject was correct. The Trial Judge placed the evidence of custom and usage “by others engaged in the same business” in proper perspective, when, among other things, he told the jury that the issue on which it was received was “the reasonableness of the defendant’s conduct' under all the circumstances”. He also emphasized that the testimony on this score was not conclusive, not only by saying so but by explaining that “the mere fact that another person or landlord may have used a better or safer practice does not establish a standard” and that it was for the jurors “to determine whether *108or not the evidence in this case does establish a general custom or practice”.

Nevertheless, we reverse and order a new trial because the General Business Law sections should have been excluded. True, if a statutory scheme intended for the protection of a particular class, as is the one here, does not expressly provide for civil liability, there is responsible authority for the proposition that a court may, in furtherance of the statutory purpose, read in such an intent (see Martin v Herzog, 228 NY 164, 168; Restatement, Torts 2d, § 286; see, generally, James, Statutory Standards and Negligence in Accident Cases, 11 La L Rev 95). Be that as it may, the fact is that the statutes here protected only those tenants for whom shower glazing was installed after the statutory effective date. Plaintiff was not in that class. Thus, while new installations made during the three-year interval between July 1,1973, the effective date of the new General Business Law provisions, and July, 1976, when plaintiff was injured, could have counted numerically in the totality of any statistics to support the existence of a developing custom to use safety glass, defendants’ objection to the statutes themselves should have been sustained. Without belaboring the point, it cannot be said that the statutes, once injected into the adversarial conflict, did not prejudice the defendants. Nor is it any answer to suggest that balancing the risk of prejudice against the asserted relevancy of the statutes here was a supportable discretionary judicial act. Unlike hearsay, which at times may be rendered admissible by necessity, the other proof of custom here eliminates the possibility of this justification.

For all these reasons, the order should be reversed and a new trial granted. In so ruling, we see no reason for a retrial of the damages issue. Instead, the new trial will be confined initially to the issue of liability and, if plaintiff once again should succeed in proving that defendants were negligent, to the issue of apportionment of fault between the parties (cf. Ferrer v Harris, 55 NY2d 285).

Accordingly, the case should be remitted to Supreme Court, Bronx County, for further proceedings in accordance with this opinion.

*109Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

Order reversed, with costs, and case remitted to Supreme Court, Bronx County, for a new trial in accordance with the opinion herein.

. Section 389-0 provides “It shall be unlawful within the state of New York to knowingly sell, fabricate, assemble, glaze, install, consent or cause to be installed glazing materials other than safety glazing materials in or for use in, any ‘hazardous locations’.”

“Safety glazing materials” as pertinent here, are defined as “[a]ny glazing material, such as tempered glass, laminated glass, wire glass or rigid plastic, which meets the test requirements of the American National Standards Institute Standard (ANSI Z-97.1 — 1972), and which are so constructed, treated or combined with other materials as to minimize the likelihood of cutting and piercing injuries resulting from human contact with the glazing material”. (§ 398-m, subd [1].)

“Hazardous locations”, as pertinent here, are defined as “those structural elements, glazed or to be glazed in residential buildings and other structures used as dwellings, * * * known as sliding glass doors *** shower doors, bathtub enclosures * * * whether or not the glazing in such doors *** and enclosures is transparent” (§398-m, subd [21).

4.3.4 Res Ipsa Loquitur 4.3.4 Res Ipsa Loquitur

4.3.4.1 Byrne v. Boadle ("The Falling Flour Barrel Case") 4.3.4.1 Byrne v. Boadle ("The Falling Flour Barrel Case")

Should courts be willing to presume negligence in situations where the plaintiff's injury implies negligence has occurred, even in the absence of direct evidence to that effect?

159 Eng. Rep. 299

BYRNE

v.

BOADLE.

Nov. 25, 1863

The plaintiff was walking in a public street past the defendant's shop when a barrel of flour fell upon him from a window above the shop, and seriously injured him. Held sufficient prima facie evidence of negligence for the jury, to cast on the defendant the onus of proving that the accident was not caused by his negligence.

[S.C. 33 L.J. Ex. 13; 12 W.R. 279; 9 L.T. 450. Followed, Briggs v. Oliver, 1866, 4 H. & C. 407. Adopted, Smith v. Great Eastern Railway, 1866, L. R. 2 C.P. 11.]

Declaration. For that the defendant, by his servants, so negligently and unskillfully managed and lowered certain barrels of flour by means of a certain jigger-hoist and machinery attached to the shop of the defendant, situated in a certain highway, along which the plaintiff was then passing, that by and through t he negligence of the defendant, by his said servants, one of the said barrels of flour fell upon and struck against t he plaintiff, whereby the plaintiff was thrown down, wounded, lamed, and permanently injured, and was prevented from attending to his business for a long time, to wit, thence hitherto, and incurred great expense for medical attendance, and suffered great pain and anguish, and was otherwise damnified.

Plea. Not guilty.

At the trial before the learned Assessor of the Court of Passage at Liverpool, the evidence adduced on the part of the plaintiff was as follows:—A witness named Critchley said: "On the 18th July, I was in Scotland Road, on the right side going north, defendant's shop is on that side. When I was opposite to his shop, a barrel of flour fell from a window above in defendant's house and shop, and knocked [2 Hurlst. & Colt. 723] the plaintiff down. He was carried into an adjoining shop. A horse and cart came opposite the defendant's door. Barrels of flour were in the cart. I do not think the barrel was being lowered by a rope. I cannot say: I did not see the barrel until it struck the plaintiff. It was not swinging when it struck the plaintiff. It struck him on the shoulder and knocked him towards the shop. No one called out until after the accident." The plaintiff said: "On approaching Scotland Place and defendant’s shop, I lost all recollection. I felt no blow. I saw nothing to warn me of danger. I was taken home in a cab. I was helpless for a fortnight." (He then described his sufferings.) "I saw the path clear. I did not see any cart opposite defendant's shop." Another witness said: "I saw a barrel falling. I don't know how, but from defendant's." The only other witness was a surgeon, who described the injury which the plaintiff had received. It was admitted that the defendant was a dealer in flour.

It was submitted, on the part of the defendant, that there was no evidence of negligence for the jury. The learned Assessor was of that opinion, and nonsuited t he plaintiff, reserving leave to him to move the Court of Exchequer to enter the verdict for him with 501. damages, the amount assessed by the jury.

Littler, in the present term, obtained a rule nisi to enter the verdict for the plaintiff, on the ground of misdirection of the learned Assessor in ruling that there was no evidence of negligence on the part of the defendant; against which

Charles Russell nowshewed cause. First, there was noevidence to connect the defendant or his servants with the occurrence. It is not suggested that the defendant himself was present, and it will be argued that upon these pleadings it is not open to the defendant to contend that his servants were not engaged in lowering the barrel of flour. But the [2 Hurlst. & Colt. 724]declaration alleges that the defendant, by his servants, so negligently lowered the barrel of flour, that by and through the negligence of the defendant, by his said servants, it fell upon the plain tiff. That is tantamount to an allegation that the injury was caused by t he defendant's negligence, and it is competent to him, under t he plea of not guilty, to contend that his servants were not concerned in the act alleged. The plaintiff could not properly plead to this declaration that his servants were not guilty of negligence, or that the servants were not his servants. If it [159 Eng. Rep. 300] had been stated by way of inducement that at the time of the grievance the defendant’s servants were engaged in lowering the barrel of flour, that would have been a traversable allegation, not in issue under the plea of not guilty. Mitchell v. Crassweller (13 C. B. 237) and Hart v. Crowley (12 A. & E. 378) are authorities in favour of the defendant. Then, assuming the point is open upon these pleadings, there was no evidence that the defendant, or any person for whose acts he would be responsible, was engaged in lowering the barrel of flour. It is consistent with the evidence that the purchaser of the flour was superintending the lowering of it by his servant, or it may be that a stranger was engaged to do it without the knowledge or authority of the defendant. [Pollock, C. B. The presumption is that the defendant's servants were engaged in removing the defendant's flour; if they were not it was competent to the defendant to prove it. J Surmise ought not to be substituted for strict proof when it is sought to fix a defendant with serious liability. The plaintiff should establish his case by affirmative evidence.

Secondly, assuming the facts to be brought home to the defendant or his servants, these facts do not disclose any evidence for the jury of negligence. The plaintiff was bound to give affirmative proof of negligence. But there [2 Hurlst. & Colt. 725]was not a scintilla of evidence, unless the occurrence is of itself evidence of negligence. There was not even evidence that the barrel was being lowered by a jigger-hoist as alleged in the declaration. [Pollock, C. B. There are certain cases of which it may be said res ipsa loquitur, and this seems one of them. In some cases the Courts have held that the mere fact of the accident having occurred is evidence of negligence, as, for instance, in the case of railway collisions.] On examination of the authorities, that doctrine would seem to be confined to the case of a collision between two trains upon the same line, and both being the property and under the management of the same Company. Such was the case of Skinner v. The London, Brighton and South Coast Railway Company (5 Exch. 787), where the train in which the plaintiff was ran into another train which had stopped a short distance from a station, in consequence of a luggage train before it having broken down. In that case there must have been negligence, or the accident could not have happened. Other cases cited in the text-books, in support of the doctrine of presumptive negligence, when examined, will be found not to do so. Amongst them is Carpue v. The London and Brighton Railway Company (5 Q.B. 747), but there, in addition to proof of the occurrence, the plaintiff gave affirmative evidence of negligence, by shewing that the rails were somewhat deranged at the spot where the accident took place, and that the train was proceeding at a speed which, considering the state of the rails, was hazardous. Another case is Christie v. Griggs (2 Campb. 79), where a stage-coach on which the plaintiff was travelling broke down in consequence of the axle-tree having snapped asunder. But that was an action on the contract to carry safely, and one of the counts imputed the accident to the insufficiency of the [2 Hurlst. & Colt. 726]coach, of which its breaking down would be evidence for the jury. [Pollock, C. B. What difference would it have made, if instead of a passenger a bystander had been injured?) In the one case the coach proprietor was bound by his contract to provide a safe vehicle, in the other he would only be liable in case of negligence. The fact of the accident might be evidence of negligence in the one case, though not in the other. It would seem, from the case of Bird v. The Great Northern Railway Company (28 L.J. Exch. 3), that the fact of a train running off the line is not prima facie proof where the occurrence is consistent with the absence of negligence on the part of the defendants. Later cases have qualified the doctrine of presumptive negligence. In Cotton v. Wood (11 C.B. N.S. 568) it was held that a Judge is not justified in leaving the case to the jury where the plaintiff's evidence is equally consistent with the absence as with the existence of negligence in the defendant. In Hammack v. White (11 C.B. N.S. 588, 594), Erie, J., said that he was of opinion “that the plaintiff in a case of this sort was not entitled to have the case left to the jury unless he gives some affirmative evidence that there has been negligence on the part of the defendant.” [Pollock, C.B. If he meant that to apply to all cases, I must say, with great respect, that I entirely differ from him. He must refer to the mere nature of the accident in that particular case. Bramwell, B. No doubt, the presumption of negligence is not raised in every case of injury from accident, but in some it is. We must judge of the facts in a reasonable way; and regarding them in that light we know that these accidents do not take place without a cause, and in general that cause is negligence.] The law will not presume that a man is guilty of a wrong. It is consistent with the [159 Eng. Rep. 301] facts proved that the defendant's servants were using [2 Hurlst. & Colt. 727] the utmost care and the best appliances to lower the barrel with safety. Then why should the fact that accidents of this nature are sometimes caused by negligence raise any presumption against the defendant? There are many accidents from which no presumption of negligence can arise. [Bramwell, B. Looking at the matter in a reasonable way it comes to this—an injury is done to the plaintiff, who has no means of knowing whether it was the result of negligence; the defendant, who knows how it was caused, does not think fit to tell the jury.] Unless a plaintiff gives some evidence which ought to be submitted to the jury, the defendant is not bound to offer any defence. The plaintiff cannot, by a defective proof of his case, compel the defendant to give evidence in explanation. [Pollock, C.B. I have frequently observed that a defendant has a right to remain silent unless a prima facie ease is established against him. But here the question is whether the plaintiff has not shewn such a case.] In a case of this nature, in which the sympathies of a jury are with the plaintiff, it would be dangerous to allow presumption to be substituted for affirmative proof of negligence. Littler appeared to support the rule, but was not called upon to argue.

POLLOCK, C.B. We are all of opinion that the rule must be absolute to enter the verdict for the plaintiff. The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong tolay down asa rule that in no case can presumption of negligence arise from the fact of an accident. Suppose in this case the barrel bad rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred?It is [2 Hurlst. & Colt. 728] the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be prima facie evidence of negligence. Or if an article calculated to cause damage is put in a wrong place and does mischief, I think that those whose duty it was to put it in the right place are prima facie responsible, and if there is any state of facts to rebut the presumption of negligence, they must prove them. The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the controul of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to shew that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.

BRAMWELL, B. I am of the same opinion.

CHANNELL, B. I am of the same opinion. The first part of the rules assumes the existence of negligence, but takes this shape, that there was no evidence to connect the defendant with the negligence. The barrel of flour fell from a warehouse over a shop which the defendant occupied, and [2 Hurlst. & Colt. 729] therefore prima facie he is responsible. Then the question is whether there was any evidence of negligence, not a mere scintilla, but such as in the absence of any evidence in answer would entitle the plaintiff to a verdict. I am of opinion that there was. I think that a person who has a warehouse by the side of a public highway, and assumes to himself the right to lower from it a barrel of flour into a cart, has a duty cast upon him to take care that persons passing along the highway are not injured by it. I agree that it is not every accident which will warrant the inference of negligence. On the other hand, I dissent from the doctrine that there is no accident which will in itself raise a presumption of negligence. In this case I think that there was evidence for the jury, and that the rule ought to be absolute to enter the verdict for the plaintiff.

PIGOTT, B. I am of the same opinion.

Rule absolute.

4.3.4.2 Sapp v. United States ("The B-47 Bomber Case") 4.3.4.2 Sapp v. United States ("The B-47 Bomber Case")

Is this an easy case to apply res ipsa loquitur, and if so, why?

United States District Court for the Western District of Louisiana

153 F. Supp. 496

Civ. A. No. 5398

1957-07-22

James C. SAPP and Annie R. Sapp v. The UNITED STATES of America.

Civ. A. No. 5398.

United States District Court W. D. Louisiana, Lake Charles Division.

July 22, 1957.

James A. Smith, Lake Charles, La., for plaintiffs.

T. Fitzhugh Wilson, U. S. Atty., Meredith T. Holt, Asst. U. S. Atty., Shreveport, La., for defendant.

HUNTER, District Judge.

Brought under the Federal Tort Claims Act,1 this suit is for personal injuries sustained by Sgt. and Mrs. James. C. Sapp when a United States Air Force B-47 Bomber crashed and burst into flames within a few feet of their home.

The facts, insofar as shown, are these:

(1) On the evening of February 28, 1955, at approximately 6:30 P.M., a B-47 aircraft, No. 2045, took off on a routine training mission from the Lake Charles Air Force Base.

*497(2) At all times pertinent the aircraft was in the sole and exclusive custody and control of employees of the United States, acting in the scope of their employment and for the benefit of the United States.

(3) Soon after the take-off, the aircraft developed engine trouble with its No. 2 engine, and as a precaution the pilot shut down that engine and remained in the Lake Charles-Lafayette area until sufficient fuel had been burned to permit the plane to land safely at its home field.

(4) At about 11:30 P.M. the aircraft came in for a landing, the craft made a regular, announced approach into the Lake Charles Air Base flying area. The plane was under the command of Captain Clarence Wilson. He was accompanied by Captain Mark Veck, listed as pilot, and Captain Elwyn McBee, Observer. All three of these officers were members of the 52nd Bombardment Squadron, 68th Bombardment Wing, Lakes Charles Air Force Base, Lake Charles, Louisiana.

(5) The aircraft was cleared for a standard jet landing; and at the proper time, control of the aircraft was transferred to GCA. GCA picked up the aircraft on search radar at 21 miles north of the Air Base and advised the pilot to report over the North Lake Charles “homer” at 3,000 feet. The final controller took control of the aircraft between five and eight miles out, at which time the aircraft was right on course. At five miles out it was still on the course line but slightly over the glide path. GCA advised the aircraft to correct its position, and at four miles out the plane was lined up properly on the glide path. At three and one-half miles out it began to drift to the left. GCA directed a correction to the right, and receiving no answer did so again. No acknowledgment was received and the plane continued approximately five degrees off course to the left. Seconds later, the aircraft was observed to take a sharp 90-degree turn to the right, and dropped off the scope. It then crashed into Hazel’s Trailer Village in the vicinity of Highway 171 at Moeling Street, Lake Charles, Louisiana.

(6) Sgt. and Mrs. Sapp were sleeping in their trailer home when the bomber crashed and burst into flames mere feet away.

(7) Sgt. Sapp is now, and was at the time of the accident, a sergeant in the United States Air Force. His injuries were not service-connected or in any sense incident to his military service. What Sapp was doing at the time he was injured (sleeping at his home) had absolutely nothing to do with his military service.

(8) At the time of the crash the weather was suitable for flying — visibility 10 miles, ceiling 400 to 600 feet, and there was no fog. The turbulence mentioned by the weather officials was so slight that is should not have affected the flight of an aircraft the size and weight of a B-47. One B-47 landed before Aircraft 2045 crashed, and two landed immediately thereafter.

(9) In the past several years tremendous improvements have been effected in the design and construction of the B-47, and in the operation and maintenance thereof. Today, the B-47 is no longer an experimental plane, and has been accepted by the United States Air Force as a combat plane and is used in the training of pilots.

(10) An accident of this nature does not ordinarily happen when the aircraft has been properly inspected, maintained, serviced and flown by competent personnel, unless there is a lack of due care by someone responsible for its operation 2.

(11) The doctrine of res ipsa loquitur is applicable here. The defendant has not proven why the accident occurred, nor has it proven that it was without fault. Applying the doctrine of res ipsa loquitur the Court concludes as a fact that the government agents were guilty *498of negligence which was the proximate cause of the plane going off its course and crashing. The circumstances leave no room for a different finding. Defendant has not overcome the inference of negligence.

(12) Mrs. J. C. Sapp, one of the plaintiffs in the case at bar, was thrown from her bed at the time of the impact. Her husband, Sergeant J. C. Sapp, the other plaintiff herein, carried her from their trailer wrapped in a blanket to protect her from the fire which engulfed their small home. Sgt. Sapp, when awakened by the crash, heard his wife screaming and immediately set out to take her from the burning trailer.

(13) We do not believe that Mrs. Sapp has proven by a preponderance of the evidence that she suffered a miscarriage, and for that she is to receive nothing.

(14) Mrs. Sapp received no traumatic injury. Her remaining claim arises out of and indirectly from nervous tension and anxiety which she allegedly suffered as a result of the accident. There is no evidence that she was ever examined by Lake Charles Air Force Base Hospital at the time of the accident. She did consult later with and was examined by Dr. L. L. DiGiglia and Dr. Charles F. Adkins, a Psychiatrist of Beaumont, Texas. The Court finds that Mrs. Sapp’s condition, which has been diagnosed both by Dr. Adkins and Dr. DiGiglia as an anxiety psychoneurosis, was precipitated by the crash and accident of February 28, 1955, and damages therefor are fixed at $3,000.-

(15) Sgt. Sapp’s injuries consisted of 2nd and 3rd degree burns over approximately 10 per cent of his body. These burns were confined specifically to the neck, arms, head and shoulders. All the hair was burned from his head. Dr. Harold R. Bicknell, who treated Sgt. Sapp, and testified for defendant, stated that severe pain accompanied the burned area for approximately three weeks after the accident. Sgt. Sapp was hospitalized for nineteen days and was treated as an out-patient for an additional thirty-four days. He returned to duty fifty-three days after the accident but was still treated for a urticarian (penicillin rash) condition after that. This condition was caused by penicillin shots administered as treatment for the burns and the condition lasted for two or three weeks and resulted in frequent scaling of the Sergeant’s hands and feet, as well as an irritating hives type rash. The scar tissue which formed over the burned area is supersensitive and reacts to heat and perspiration.

(16) Even though Sgt. Sapp is capable of serving in the Armed Forces, he is entitled to recover for pain and suffering, past, present and future, in the amount of $10,000.

Sgt. Sapp’s Right of Action

The Government insists that Sgt. Sapp has no right of action because it says that his injuries arose out of or in the course of activity incident to service. Cited to support this proprosition were: Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152; United States v. United Services Automobile Ass’n, 8 Cir., 238 F.2d 364; Preferred Ins. Co. v. United States, 9 Cir., 222 F.2d 942; Orken v. United States, 6 Cir., 239 F.2d 850.

The conclusion is inescapable that Sapp’s injuries were not service-connected, nor in any sense incident to his military service; the cited cases are not applicable; and the facts here insofar as Sapp’s right of action is concerned are identical with the facts in Snyder v. United States 3.

Res Ipsa Loquitur

Many Louisiana courts have interpreted this phrase. The Fifth Circuit has on numerous occasions extensively discussed Louisiana law pertinent there*499to 4. Fundamentally stated, the doctrine of res ipsa loquitur is that in the absence of an explanation by a defendant, when a thing causing injury is shown to be under the management of defendant, and the accident is such as in the ordinary course of things does not happen, if those who have its management use proper care, a sufficient basis is afforded for a finding and a conclusion that the accident arose from want of care and was proximately caused thereby. The Louisiana law looks with favor and extreme liberality upon the application of the doctrine. In Whalen, supra [220 F.2d 82], Judge Tuttle, speaking for the Fifth Circuit, made this very pertinent observation :

“We believe that those cases are a better expression of Louisiana law than the dicta in the Dorman case, supra, and that they are in line with recent decisions of the United States Supreme Court giving the same or broader scope and latitude to the res ipsa loquitur rule. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Jesionowski v. Boston & M. R. R., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416, 169 A.L.R. 947.”

The doctrine has the capacity for great flexibility. Each case seeking to invoke the doctrine must stand or fall upon its own facts. But, its application necessarily varies with experience, and a situation to which the doctrine was not applicable several years ago because of insufficient experience or lack of technical knowledge might today fall within the scope of the rule, depending upon what experience has shown. In the past several years, tremendous improvements have been effected in the construction of the B-47. Today and at the time of this accident, it is and was a relatively safe means of transportation. A B-47 of the type herein used coming in to land on an ordinary routine flight under normal weather conditions does not crash in the ordinary course of things unless there has been a failure to properly inspect, service, and maintain it, or unless it is not operated with due care.

While there are no reported decisions of the courts of Louisiana ruling specifically on the applicability of this rule to accidents involving aircraft5, there are numerous authorities from other jurisdictions, and the modern trend of authority is to hold the doctrine of res ipsa loquitur applicable to airplane accidents 6, and certainly this is true when, as here, it is apparent from the evidence that the plane was off its prescribed course.

The Government argues, in effect, that the novelty of air navigation should preclude the application of the doctrine of res ipsa loquitur to airplane accidents, in view of the fact that they may be due to mysterious and unknown causes. They rely heavily of Morrison v. Le Tourneau, 5 Cir., 138 F.2d 339; Chapman v. United States, 5 Cir., 194 F.2d 974; and Williams v. United States, 5 Cir., 218 F.2d 473.

Turning first to Morrison, the facts there are altogether different and the principles announced therein cannot be applied to the ease at bar because:

(a) There, the decedent was a passenger in a little dual control Cub, and the court concluded that there was no proof whether the pilot *500was piloting the plane at the time of the crash or whether Morrison was piloting it.

(b) There, two defendants were involved, and it was impossible to determine the defendant against whom the rule should be applied, since the two defendants were charged with separate and distinct acts of negligence.

Chapman did not involve the doctrine of res ipsa loquitur and is not helpful to the decision in the case under consideration. This leaves for our consideration the case so heavily relied upon by the Government — the Williams ease. There, a B-47 Stratojet Bomber, similar to the one involved here, caught fire and exploded in midair, over Mariana, Florida. There, as here, plaintiff relied solely upon the application of the doctrine of res ipsa loquitur. The Fifth Circuit denied recovery there because plaintiff failed to prove that the accident would not have occurred in the ordinary course of events if the defendant had exercised due care, and because the court had “no knowledge, judicial or otherwise, of what would cause a jet airplane to explode in midair whilé in flight.” [218 F.2d 476.] That decision can be authoritative here only if we ignore vital distinctions that are immediately apparent, as follows:

(a) There, the crash occurred in 1952. At that time the B-47 was an experimental plane, whereas the accident in this case occurred in 1955 at which time the B-47 was an accepted combat plane.

(b) Here, unlike Williams, there is positive testimony to the effect that the accident would not have occurred in the ordinary course of events if the defendant had exercised due care.

(c) There, the plane exploded in midair. Here, for some inexplicable reason, the aircraft, while coming in to land, departed from its prescribed course, hit the ground at the location of a trailer park, and exploded. The evidence shows that the aircraft was in the wrong .place at the wrong time, and this has not been explained.

Conclusions of Law

(1) The Court has jurisdiction under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b) and 28 U.S.C.A. § 2671 et seq.

(2) The venue of the cause lies in the Western District of Louisiana, Lake Charles Division, under the provisions of 28 U.S.C.A. § 1402(b).

(3) The law to be applied in this case is the law of Louisiana. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

(4) The doctrine of res ipsa loquitur applies.

(5) The fact that the plane was under the exclusive control of the defendant and that the accident is such as in the ordinary course of things does not happen if those who have its management use proper care gives rise to an inference of negligence which the defendant has failed to explain or rebut.

(6) Where an Air Force sergeant, while off duty and at his home, sustained injuries by reason of an airplance crash, such injuries were neither service-connected nor in any sense incidental to his military service, and he was not precluded from maintaining action under the Federal Tort Claims Act (Snyder v. United States, supra).

(7) On the record, Sgt. Sapp is entitled to recover as a result of his injuries due to the accident a total amount of $10,000.

(8) On the record, Mrs. Sapp is entitled to recover as damages sustained by her as a result of the accident a total amount of $3,000.

(9) The attorneys for plaintiffs are entitled under Section 2678, Title 28, U.S.C.A., to an attorneys’ fee of 20% of the amount of this recovery for services rendered, to be paid out of the judgment this day rendered against the Government.

Proper decree should be presented in accordance with these findings.

4.3.4.3 Trujeque v. Service Merchandise Co. ("The Collapsing Chair Case") 4.3.4.3 Trujeque v. Service Merchandise Co. ("The Collapsing Chair Case")

What is needed to establish the exclusive control element of a res ipsa case? How would you describe the two kinds of control that the parties present as being the relevant kind?

Supreme Court of New Mexico

117 N.M. 388, 872 P.2d 361

No. 20368

1994-03-29

872 P.2d 361

Carmen TRUJEQUE, Petitioner, v. SERVICE MERCHANDISE COMPANY, Respondent.

No. 20368.

Supreme Court of New Mexico.

March 29, 1994.

*389John Perrine, Albuquerque, for petitioner.

Sager, Curran, Sturges & Tepper, P.C., Christopher P. Bauman, C. Kristine Osnes, Albuquerque, for respondent.

OPINION

RANSOM, Justice.

Carmen Trujeque sued Service Merchandise for injuries sustained when a chair that Service Merchandise provided for customers collapsed as Trujeque sat down. The trial court instructed the jury on res ipsa loquitur, and the jury returned a special verdict for the defendant. The Court of Appeals affirmed in an unpublished opinion. We issued a writ of certiorari to review the error alleged to have occurred when, in response to a question from the jury foreman, the trial judge instructed the jury on the meaning of the term “exclusive control.” Because we find that the instruction given was inappropriate under the facts of this case, we reverse the Court of Appeals and the trial court and remand for a new trial.

Factual and procedural history. Trujeque was shopping at Service Merchandise and waiting for her order to be processed when she decided to sit in one of the chairs that Service Merchandise provided for its customers’ convenience. As she sat down, the chair broke, causing her to fall and injure her arm. The store manager took the chair pieces and apparently disposed of them before suit was filed. In addressing the store’s motion for summary judgment, the trial court ruled that Trujeque could present her case to the jury only on the theory of res ipsa loquitur. At trial, Trujeque provided evidence that the chair was owned and maintained by Service Merchandise. Service Merchandise provided evidence from which the jury could infer that it was more probable than not that other customers also had sat in the chair on the day of the accident. In opening argument, the attorney for Service Merchandise told the jury that to find Service Merchandise liable, it would have to find that “Service Merchandise or its employees were the last people to use the chair before Mrs. Trujeque sat in it” and that “it’s more probable than not that [the] chair had been used during that day by a customer.” Trujeque argued in closing that “[e]xclusive management and control is a common sense idea that what’s going on is their business, their concern, their responsibility, their control, their management.”

During discussions concerning jury instructions, Service Merchandise tendered Instruction 14A stating that the instruction adopted the language of Gonzales v. Shoprite Foods, Inc, 69 N.M. 95, 364 P.2d 352 (1961). The instruction articulated a standard of proof for the element of “exclusive control”:

In order to prove that the defendant had exclusive control and management over the instrumentality causing plaintiffs accident and injuries, plaintiff must show from the evidence that others did not have an opportunity of equal access to the instrumentality.

Trujeque objected as follows:

Mr. Perrine: The second phrase, “plaintiff must show from the evidence that oth*390ers did not have an opportunity of equal access to the instrumentality.” First of all, is any additional evidentiary requirement after the trial; secondly “others” would be 41,000 customers.

The court refused to give the instruction.

The jury was instructed in accordance with SCRA 1986, 13-1623 (Repl.Pamp.1991), that Trujeque had the burden of proving that the chair was under the “exclusive control and management” of Service Merchandise. Shortly after the jury retired, the jury foreman presented a written question to the court requesting a “precise legal definition of the term ‘exclusive control.’ ” The trial judge summoned counsel and proposed instructing the jury according to Instruction 14A. Trujeque again objected:

Mr. Perrine: [Tuso v.] Markey[, 61 N.M. 77, 294 P.2d 1102 (1956),] is a chair case, not a merchandise case. Whether— which defendant is arguing Gonzales v. Shoprite, 69 N.M. 95, 364 P.2d 352, that that case should apply to this particular case. Gonzales v. Shoprite is a merchandise case where merchandise is stacked in defendant’s self-service supermarket. And there was — the Court accepted that the stacking was done in a customary manner; and that, therefore, the normal service of 900 to a thousand people on the same day of the week did not mean that that merchandise was within the sole and exclusive control of defendant. However, Tuso v. Markey is a chair case.

Mr. Perrine: ... There’s another case, Chapin [v. Rogers, 80 N.M. 684, 459 P.2d 846 (Ct.App.1969),] ... and it’s a similar type of chair case.

In Tuso the plaintiff alleged, generally, the unsafe condition of the chair and ... that the accident ... would not have happened if the defendant used due care since the chair was within [the] sole and exclusive control of the management.

This Court found that, “The general allegations of negligence, accompanied by an allegation and proof that the instrumentality causing the accident was under the exclusive control of appellees, warranted its application.”

I would vigorously argue that this is a chair case and not a stack of merchandise that can become under the control, or maybe different customers who are bumping it around and changing the conditions of the stability, and thereby causing a potential for injury to a subsequent customer. This is not the same type of ease at all, and this instruction should not apply since there are 41,000 other customers who, naturally, are going to be using that chair.

Despite this objection, the trial court submitted the instruction to the jury. After receiving Instruction 14A, the jury asked, “Does the sitting in the chair by a customer constitute equal access to the instrumentality (chair)?” Over Trujeque’s objection, the court answered affirmatively.

Trujeque sufficiently preserved error for appeal. Service Merchandise argues that Trujeque did not tender a different instruction or point out the specific vice in the challenged instruction as required by Budagher v. Amrep Corp., 97 N.M. 116, 119, 637 P.2d 547, 550 (1981). It contends that Trujeque’s arguments on appeal that the instruction is “rigid and inflexible” and mischaracterized the legal principle for which Gonzales stands were not raised below and therefore should not be considered by this Court. Although we agree that neither Tuso nor Chapin contain a definition of the phrase “exclusive control and management,” we believe that instructions to the jury require no definition of that self-explanatory phrase. It is for counsel to argue the facts and inferences to be drawn as to exclusive control and management, subject to objection that a meaning is being attributed to that phrase that is not intended by the law. Trujeque sufficiently drew the court’s attention to the fact that this case is to be distinguished from Gonzales and that New Mexico appellate courts have applied res ipsa loquitur in chair cases similar to the one at bar without requiring proof that would negate use by other customers. We also believe that Trujeque had defined what she interpreted the meaning of “exclusive control” to be in closing argument. We find that the error was sufficiently called *391to the trial court’s attention and preserved for appeal.

The doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur applies only when evidence establishes that in the ordinary course of events an injury would not occur except through negligence of the person in exclusive control and management of the injuring instrumentality. See SCRA 13-1623; Hepp v. Quickel Auto & Supply Co., 37 N.M. 525, 528, 25 P.2d 197, 199 (1933). “It bases its chief claim to justification on the fact that ordinarily the cause of the injury is accessible to the party charged and inaccessible to the person injured.” Hepp, 37 N.M. at 528, 25 P.2d at 199. Generally, cases in which the theory of res ipsa loquitur is presented fall into two categories: those in which the defendant directly uses an instrumentality so as to cause injury, see, e.g., Archibeque v. Homrich, 88 N.M. 527, 528-29, 543 P.2d 820, 821-22 (1975) (driver ran off road, killing himself and passenger/owner); Buchanan v. Downing, 74 N.M. 423, 424, 394 P.2d 269, 270 (1964) (plaintiff sued doctor for injuries resulting from injection), and those in which the defendant is in charge of, created, or last controlled an instrumentality that inexplicably becomes dangerous and injures the victim outside of the defendant’s presence, see, e.g., Waterman v. Ciesielski, 87 N.M. 25, 27, 528 P.2d 884, 886 (1974) (plaintiff truck driver sued warehouse operator for injuries sustained while unloading crate that unexpectedly shifted); Tafoya v. Las Cruces Coca-Cola Bottling Co., 59 N.M. 43, 45-46, 278 P.2d 575, 577 (1955) (plaintiff sued bottler for injuries caused by drinking tainted soda); Begay v. Livingston, 99 N.M. 359, 363, 658 P.2d 434, 438 (Ct.App.1981) (decedent’s estate sued motel owner after heating exhaust vent .was found inexplicably detached from ceiling duct, causing carbon monoxide poisoning of decedent), rev’d in part on other grounds, 98 N.M. 712, 714, 652 P.2d 734, 736 (1982); Strong v. Shaw, 96 N.M. 281, 282-83, 629 P.2d 784, 785-86 (Ct.App.1980) (plaintiff sued -mobile park owner for damages caused by fire that started in hot water closet located outside plaintiffs apartment), cert. quashed, 96 N.M. 543, 632 P.2d 1181 (1981); Harless v. Ewing, 81 N.M. 541, 543-45, 469 P.2d 520, 522-24 (Ct.App.1970) (plaintiff sued truck owner for damages sustained when tire fell off truck and then blew up). The case at bar falls into the second category.

The meaning of “exclusive control and management” is fact specific. In order to make a prima facie case from which the jury may infer that the defendant is liable for the damages caused by the instrumentality outside of the defendant’s presence, the plaintiff must provide evidence of the character of the occurrence and of the exclusive control of the defendant. The plaintiffs burden may vary according to the facts of the case. See, e.g., Tafoya, 59 N.M. at 49, 278 P.2d at 579 (stating that plaintiffs burden there to show “there was no reasonable probability of the [instrumentality] having been tampered with” since leaving defendant’s control); Begay, 99 N.M. at 363, 658 P.2d at 438 (stating that “[t]he phrase ‘exclusive control and management’ of an instrumentality means ‘the sole power or authority of defendant to superintend, direct or oversee’ the instrumentality.”); Strong, 96 N.M. at 283-85, 629 P.2d at 786-88 (stating that plaintiff satisfied burden of establishing that landlord had exclusive control and management of outside water heater closet even though others had access to it); Harless, 81 N.M. at 544, 469 P.2d at 523 (holding that plaintiff had introduced sufficient evidence of defendant’s exclusive control of maintenance of a truck by showing defendant gave instructions on maintenance and paid truck’s operating expense). “The essential question becomes one of whether the probable cause is one which the defendant was under a duty to the plaintiff to anticipate or guard against.” Restatement (Second) of Torts § 328(D) cmt. g (1965).

While the two “collapsing chair” cases .in New Mexico, Tuso and Chapin, imply that a showing of ownership, management, and possession of chairs in a business establishment with many invitees is sufficient to establish exclusive control, they do not expressly state what the plaintiffs burden is in those cases. There are, however, many cases from other jurisdictions expressly holding that such a showing is sufficient. See, e.g., Rose v. Melody Lane of Wilshire, 39 Cal.2d 481, 247 P.2d *392 335, 338 (1952) (en bank) (stating that “[s]o far as construction, inspection, or maintenance ... were concerned, [the lounge owner] had exclusive control” of the lounge stool that collapsed); Gresham v. Stouffer Corp., 144 Ga.App. 553, 241 S.E.2d 451, 452 (1978) (stating that “[i]t is clear ... that the defendant owned and operated the restaurant ... [and] that the chair was furnished by the restaurant to the plaintiff for his use as a business invitee.... [Therefore,] a jury would be authorized to conclude that the chair was in the full control of the defendant and that the defendant was responsible for its maintenance.”); Herries v. Bond Stores, 231 Mo.App. 1053, 84 S.W.2d 153, 157 (1935) (stating “[w]hat more natural, what more in consonance with sound reason, and sound common sense, than to attribute the defective condition of the chair ... to defendant, the owner and custodian of the chair,” and holding that all plaintiff must show is that she was business invitee and was furnished a chair that collapsed to establish a prima facie case under the doctrine); Benedict v. Eppley Hotel Co., 159 Neb. 23, 65 N.W.2d 224, 229 (1954) (holding that evidence of defendant’s ownership, possession, and control were enough to establish exclusive control); Judson v. Camelot Food, Inc., 104 Nev. 324, 756 P.2d 1198, 1201 (1988) (“A business proprietor retains exclusive control of seating while it is being properly used by patrons.”); Finocchio v. Crest Hollow Club at Woodbury, Inc., 184 A.D.2d 491, 584 N.Y.S.2d 201, 202 (1992) (holding that trial court erred in refusing instruction because it used an overly rigid interpretation of the exclusive control requirement; evidence that club owned chair and that employees took chair after accident and offered no¡ evidence to support inference of some other possible cause or the act of a third person with access to chair was enough under the circumstances of the case to warrant submission to jury).

We are aware one jurisdiction holds that because chairs in use are under the control of the user, the exclusive control element cannot be met as a matter of law. See Kilgore v. Shepard Co., 52 R.I. 151, 158 A. 720, 721 (1932). This argument has been widely criticized as a ridiculous conclusion. See Judson, 104 Nev. 324, 756 P.2d at 1201 n. 3 (quoting W. Page Keeton, Prosser & Keeton on Torts, 249-250 (5th Ed.1984)). Also, the court in Mineo v. Rand’s Food Shops, Inc., 32 N.Y.S.2d 23, 25 (N.Y. City Ct.1941), held that chairs in restaurants are under temporary control of various patrons and subject to injury during such use, so there can be no exclusive control in defendant. We believe that the theory upon which Mineo and Kilgore are based is “an overly rigid interpretation of the requirement of exclusive control,” Finocchio, 184 A.D.2d 491, 584 N.Y.S.2d at 202, and that it is “artificial and ignores the purpose of the requirement that defendant have exclusive control.” Rose, 39 Cal.2d 481, 247 P.2d at 338.

It was reversible error to give Instruction HA. Service Merchandise contends that the definition of exclusive management and control based on Gonzales is applicable and does not modify the res ipsa loquitur uniform jury instruction. We disagree. The issue in Gonzales was whether the usual and customary manner of stacking self-service merchandise over a period of years was improper in and of itself and created a dangerous condition. In denying the applicability of the doctrine of res ipsa loquitur, the Court specifically observed that the cafeteria chair case of Tuso is not analogous to a case dealing with the display of merchandise to which, on a normal Saturday, a thousand customers had equal access. Such access defeated the element of sole and exclusive control necessary for application of the doctrine of res ipsa loquitur. 69 N.M. at 100-01, 364 P.2d at 355-56. Although it is not at all clear, we assume the Court meant for “equal access” to refer to access by the store management as well as by customers. The implication that access itself prevents application of res ipsa loquitur, requiring Trujeque to prove a negative, i.e., that no one had an opportunity of access equal to that of Service Merchandise, was improper when applied to an instrumentality the anticipated safe use of which, if properly maintained, would be reasonable for any number of customers. The same cannot be said of the anticipated safety of boxes and bottles of shelved merchandise stacked for self service as in Gonzales. Any argument that a customer’s access is never *393“equal” to that of the owner who maintains a chair for use by customers of the store is a bit too subtle an argument to require of a plaintiff. The issue is whether “access” makes it unreasonable to infer that the maintainer of the instrumentality was responsible for a danger in its use.

Conclusion. That third parties may have had access to the chair did not preclude Service Merchandise from having exclusive control and management of the chair within the meaning of the doctrine of res ipsa loquitur, and did not preclude a reasonable inference that Service Merchandise was responsible for a danger in its use. Once Trujeque established that an accident occurred that normally does not occur absent negligence and that Service Merchandise owned, maintained, and provided the chair for use by its customers on the store’s premises, she satisfied her burden of making a prima facie case from which the jury could infer negligence. Service Merchandise could then choose to present no evidence or choose to rebut the inference by offering evidence that a latent manufacturing defect was the cause of the collapse or perhaps that some third party bore responsibility for the collapse of the chair. It has long been held that

[a]ll that the plaintiff should be required to do in the first instance is to show that the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of, the thing doing the damage---- When he has done this, he has cast a burden on the defendant, who may then proceed to show that the accident was occasioned by vis major, or by other causes for which he was not responsible.

Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S.E. 443, 445 (1903). “[R]es ipsa loquitur means that the facts of the occurrence warrant the. inference of negligence, not that they compel such an inference; ... that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury....” Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815 (1913) (quoted by Ball Memorial Hosp. v. Freeman, 245 Ind. 71, 196 N.E.2d 274, 278 n. 2 (1964); Helmke v. Goff, 182 Mont. 494, 597 P.2d 1131, 1133 (1979); Wise v. St. Louis Pub. Serv. Co., 357 S.W.2d 902, 908 (Mo.1962) (en banc) (Hyde, J., concurring). Trujeque met her burden, and instructing the jury that she also had to prove that no other party had an opportunity of equal access to the chair was reversible error. We reverse and remand for a new trial.

IT IS SO ORDERED.

BACA and FROST, JJ., concur.

4.3.4.4 Family Thrift, Inc. v. Birthrong ("The Thrift Store Chair Case") 4.3.4.4 Family Thrift, Inc. v. Birthrong ("The Thrift Store Chair Case")

How does this case differ from the previous case (Trujeque)? Do those differences warrant a different result?

Court of Appeals of Georgia

336 Ga. App. 601, 785 S.E.2d 547

A15A2150

2016-03-08

A15A2150.

FAMILY THRIFT, INC. et al. v. BIRTHRONG.

(785 SE2d 547)

Dillard, Judge.

In this premises-liability action, Cheryl Birthrong sued Family Thrift, Inc. and Olympia Management, Inc. (“defendants”), owners and operators of a chain of thrift stores, alleging that the defendants negligently breached a duty they owed to her as an invitee when she suffered injuries near the store’s dressing room as a result of a chair collapsing as she sat upon it. Following a trial and jury verdict in Birthrong’s favor, the defendants filed a motion for judgment notwithstanding the verdict (j.n.o.v.), which the trial court denied. The defendants now appeal, arguing that the trial court erred in denying their motion for j.n.o.v. because (1) there was no evidence that the defendants had superior knowledge of the chair’s alleged defect; (2) the doctrine of res ipsa loquitur was not applicable; and (3) there was no evidence that Olympia owned or occupied the property. For the reasons set forth infra, we reverse.

On appeal from the denial of a motion for a directed verdict or a motion for j.n.o.v., we construe the evidence “in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.”1 And because jurors are the sole and exclusive judges of the weight and credit given the evidence, we must construe the evidence with “every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.”2 Nevertheless, we review questions of law de novo.3

So construed, the evidence shows that Family Thrift owns a small chain of thrift stores, selling donated clothes, housewares, and some furniture, and it operates these stores under the name Park Avenue Thrift. Olympia Management, a separate corporation with common ownership, is responsible for establishing the operating policies and procedures for all of Family Thrift’s stores, including policies pertaining to safety and inspection of merchandise for sale, and it is also responsible for ensuring that such policies and procedures are implemented. And toward that end, Olympia managers conduct weekly meetings with Family Thrift personnel at each of the stores’ locations.

*602On February 4, 2011, Birthrong and a friend went to the Park Avenue Thrift in Lawrenceville to shop for clothes. After browsing for a bit, Birthrong’s friend wanted to try on some clothes, so Birthrong accompanied her to the dressing-room area of the store, which was located near the front of the store not far from the cash registers. As her friend entered the dressing room, Birthrong noticed two chairs just outside the dressing room, one of which was occupied by a male customer. As a result, Birthrong assumed the chairs were for waiting customers’ use and, therefore, decided that she would sit while her friend tried on clothes. But just as Birthrong sat down on the unoccupied chair, its seat collapsed underneath her, and she fell to the floor, injuring her left shoulder.

Immediately, one of the store’s cashiers approached and asked Birthrong if she was hurt. Believing at the time that she was only bruised, Birthrong responded that she was not injured, at which point the cashier picked up pieces of the broken chair and told Birthrong that she was going to find the store’s manager. A few moments later, the cashier returned, informed Birthrong that the manager was not there, and asked for contact information, which Birthrong provided.

Over the course of the following week, the pain in Birthrong’s shoulder increased, and no one from the store contacted her. Thus, Birthrong returned to the store in an attempt to speak with the manager. She was unable to do so; but before leaving the store, she noticed a chair that looked similar to the one that had collapsed and decided to take a photograph of it.

Thereafter, Birthrong filed a lawsuit against Family Thrift and Olympia to recover damages for the injuries that she suffered as a result of the chair collapsing underneath her while shopping at the defendants’ store. The defendants filed an answer, and discovery then ensued. Ultimately, the case proceeded to trial, during which Birthrong, the cashier who assisted her after she fell, and two of Olympia’s general managers testified. At the close of evidence, the defendants moved for a directed verdict, arguing that they lacked superior knowledge of the hazard posed by the chair and that, in any event, Olympia did not own or occupy the premises and, thus, could not be held liable. But the trial court denied the defendants’ motions, and at the conclusion of the trial, the jury found in favor of Birthrong, with both defendants being held liable for damages.

Subsequently, the defendants filed a motion for j.n.o.v., reiterating the same arguments that they made in their motions for directed verdict. Birthrong filed a response, and, once again, the trial court denied the defendants’ motion and issued an order affirming the jury’s verdict. This appeal follows.

*6031. In their first enumeration of error, the defendants contend that the trial court erred in denying their motion for j.n.o.v., arguing that there was no evidence that they possessed superior knowledge of the hazard posed by the allegedly defective chair. We agree.

It is, of course, well established that under Georgia law a proprietor has a statutory duty to exercise ordinary care to keep its premises safe,4 which “includes inspecting the premises to discover possible dangerous conditions of which the [proprietor] does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.”5 But in order for a plaintiff to recover damages for injuries sustained in a premises-liability action, an invitee must prove “(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.”6 Indeed, it is fundamental that, in a premises-liability case, the true ground of liability is “the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property.”7 Thus, it is when the “perilous instrumentality” is “known to the owner and not known to the person injured that a recovery is permitted.”8

In this matter, there was no evidence presented during trial that any employee of Family Thrift or Olympia had actual knowledge of the hazard posed by the chair. As a result, this case necessarily turns on “whether constructive knowledge of the alleged hazard can be imputed to the store,”9 which may be shown by demonstrating that

(1) an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition prior to the fall, or (2) the hazardous *604condition had existed for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises.10

Here, Birthrong argues that the defendants had constructive knowledge that the chair was defective because, if they had followed their inspection procedures, which entailed inspecting every donated item before placing it in the main store area for sale, they would have discovered the defect. But Birthrong presented no evidence during trial “establishing exactly how the chair was defective, whether the defect was one which would be visible during an inspection, or how long the defect existed.”11 There is, then, “no logical foundation for arguing that such a defect should have been discovered during the... inspection procedure.”12 And as we have previously held, “there is no duty to discover a defect which is not manifested until the incident causing injury.”13 Thus, given that Birthrong failed to produce evidence from which a jury could properly infer that defendants had superior knowledge that the chair was defective, the trial court erred in denying their motion for j.n.o.v. as to this issue.14

2. Nevertheless, at trial, Birthrong apparently overcame this lack of specific evidence of any defect in the chair by arguing that the doctrine of res ipsa loquitur applied to create an evidentiary presumption that the chair was indeed defective. Consequently, in their second enumeration of error, the defendants contend that the trial court likewise erred in denying their motion for j.n.o.v. based on its ruling that the doctrine of res ipsa loquitur was applicable. Again, we agree.

As all first-year law students learn, “res ipsa loquitur” is a legal maxim that means the transaction or thing speaks for itself.15 More precisely, it is a rule of evidence to be applied in cases when “there is no evidence of consequence showing negligence on the part of the *605defendant,”16 and one which allows “but does not require, the jury to infer facts from the circumstances in which the injury occurred, thereby filling the evidentiary gap.”17 The application of res ipsa loquitur is authorized, then, when

(1) the injury is of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.18

But as we have previously emphasized, the doctrine of res ipsa loquitur should always be “applied with caution and only in extreme cases.”19

Here, res ipsa loquitur was not applicable because Birthrong failed to show that this is “the type of accident which ordinarily occurs only if someone is negligent.”20 Certainly, through normal wear and tear, a chair — especially a used chair donated to a thrift store — can cease fulfilling its intended function and create a hazardous condition without negligence on the part of any individual.21 Furthermore, Birthrong similarly failed to show that the defendants had exclusive control of the chair. As one of the defendants’ managers testified, although store policy required furniture to remain in the furniture section of the store, it was not uncommon for customers to move chairs around the store for their own use. Indeed, Birthrong testified that she sat in the chair at issue after observing another customer near the dressing room sitting in a similar chair. Thus, the uncontroverted evidence showed that the chair was accessible to other *606customers and not within the defendants’ exclusive control. Given these particular circumstances, Birthrong also failed to satisfy the second element of res ipsa loquitur, and the trial court erred in denying the defendants’ motion for j.n.o.v. as to this issue as well.22

Decided March 8, 2016 —

Reconsideration denied March 31, 2016

Law Office of Dan J. Colley, William E. Gray II, for appellants.

Kelly & Kelly, Roy R. Kelly TV, Gini L. Jenkins, for appellee.

3. The defendants also contend that the trial court erred in denying their motion for j.n.o.v., specifically as to Olympia’s liability, because there was no evidence that Olympia owned or occupied the premises where Birthrong’s injury occurred. But given our holdings in Divisions 1 and 2, supra, we need not address this issue.

Thus, for all of the foregoing reasons, the trial court erred in denying the defendants’ motion for j.n.o.v. Accordingly, we reverse the jury’s verdict and trial court’s judgment in favor of Birthrong.

Judgment reversed.

Ellington, P. J., and McFadden, J., concur.

See Watts & Colwell Builders, Inc., 313 Ga. App. at 6 (2) (holding that res ipsa loquitur was not applicable to find defendant liable for injury caused when the door to a bathroom stall fell off its hinges and knocked plaintiff to the ground because stall door was not within defendant’s exclusive control); Aderhold, 284 Ga. App. at 295-96 (holding that defendant store did not retain exclusive control over the box on a shelf that fell and injured plaintiff, as required for application of res ipsa loquitur, because the uncontroverted evidence reflected that the box was within the reach of other customers); Sams v. Wal-Mart Stores, Inc., 228 Ga. App. 314, 316 (491 SE2d 517) (1997) (same). Cf. Turry v. Hong Kong Delight, Inc., 215 Ga. App. 193, 194 (449 SE2d 873) (1994) (holding that res ipsa loquitur was applicable when evidence showed that sofa in restaurant’s reception area, which collapsed as plaintiff sat upon it, was furnished and controlled by defendant); Gresham v. Stouffer Corp., 144 Ga. App. 553, 554 (241 SE2d 451) (1978) (holding that res ipsa loquitur was applicable when evidence showed that restaurant’s dining chair, which collapsed as plaintiff sat upon it, was furnished and controlled by restaurant for customer use).

4.3.4.5 Pannucci v. Edgewood Park Senior Housing ("The Dog Leash in the Elevator Case") 4.3.4.5 Pannucci v. Edgewood Park Senior Housing ("The Dog Leash in the Elevator Case")

Is the third prong of the res ipsa analysis necessary?

465 N.J.Super. 403

Superior Court of New Jersey, Appellate Division.

Kathleen PANNUCCI, Plaintiff-Appellant,

EDGEWOOD PARK SENIOR HOUSING – PHASE 1, LLC; Conifer Realty, LLC; Conifer Village at Middletown 1 and Thyssenkrupp Elevator Corporation, Defendants-Respondents.

DOCKET NO. A-4735-17T3

Argued October 29, 2019Decided November 30, 2020

Synopsis

Background: Resident at senior apartment building brought personal injury action against landlord, building manager, and elevator service company, alleging negligence by the defendants for injuries resident sustained while boarding an elevator in the apartment building. The Superior Court, Law Division, Monmouth County, granted defendants' motion for summary judgment. Resident appealed.

Holdings: The Superior Court, Appellate Division, Ostrer, J.A.D., held that:

1 Appellate Division would address resident's argument, raised for first time on appeal, for discarding res ipsa loquitur doctrine's requirement that the injury did not result from plaintiff's own voluntary act or neglect, and

2 the requirement would not be discarded.

Affirmed.

Procedural Posture(s): On Appeal; Motion for Summary Judgment.

West Headnotes (9)Expand West Headnotes

**950 On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4098-15.

Attorneys and Law Firms

Thaddeus P. Mikulski, Jr., Pennington, argued the cause for appellant.

Walter F. Kawalec, III, Mount Laurel, argued the cause for respondents Edgewood Park Senior Housing Phase 1, LLC d/b/a Conifer Village at Middletown 1 and Conifer Realty, LLC (Marshall Dennehey Warner Coleman & Goggin, attorneys; Walter J. Klekotka, Mount Laurel, and Walter F. Kawalec, III, on the briefs).

Nancy A. Nolan, Cherry Hill, argued the cause for respondent Thyssenkrupp Elevator Corporation (Shimberg & Friel, PC, attorneys; Nancy A. Nolan, of counsel; Jennifer Neilio, on the briefs).

Before Judges Ostrer, Vernoia and Susswein.

Opinion

The opinion of the court was delivered by

OSTRER, J.A.D.

*406 Kathleen Pannucci was injured while boarding an elevator in her apartment building. She sued her landlord, its manager, and the company that serviced the elevator. For lack of proof of negligence, the court later dismissed her suit on defendants' motion for summary judgment. To salvage her claims, Pannucci asks us to revise the settled doctrine of res ipsa loquitur — “the thing speaks for itself.”

The doctrine permits a jury to infer a defendant's negligence, enabling a plaintiff to make a prima facie case. McDaid v. Aztec W. Condo. Ass'n, 234 N.J. 130, 142–43, 189 A.3d 321 (2018). To employ the doctrine, a personal-injury plaintiff must show three things: first, the accident was one that “ordinarily bespeaks negligence,” that is, someone's negligence more likely than not caused the accident; second, the defendant exclusively controlled the thing that caused the injury; and third, the injury did not result from the plaintiff's “own voluntary act or neglect.” 234 N.J. at 142-43, 189 A.3d 321.

Pannucci urges us to jettison the third requirement. She claims that it defeats the purpose of the Comparative Negligence Act, N.J.S.A. 2A:15–5.1 to –5.8, which discarded the rule that a personal-injury plaintiff must be free of contributory negligence. See N.J.S.A. 2A:15–5.1.

We decline Pannucci's invitation. We acknowledge that other states have gone where she asks us to go. Yet, altering the res ipsa loquitur doctrine's third prong would undo settled Supreme Court precedent, and there is no hint that the Court would endorse the change. Furthermore, there is still good reason to require a plaintiff to show that his or her conduct is not an *407 alternative explanation for the accident. Absent that showing, it may be unreasonable to infer that a defendant probably acted negligently.

Because Pannucci failed to satisfy the res ipsa loquitur **951 rule's third prong, we affirm summary judgment.

Viewed in a light most favorable to plaintiff as the non-movant, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995), the record discloses these facts. Pannucci lived in an apartment building for seniors that Edgewood Park Senior Housing Phase 1, LLC, owned, and Conifer Realty, LLC, managed.¹ Conifer hired Thyssenkrupp Elevator Corp. to service the building's elevators. One morning, Pannucci approached the elevator after walking her twenty-pound Pomeranian dog, Luke. As she approached, the elevator doors opened and a man exited. While the man was still exiting, Luke ran in, four feet ahead of Pannucci. The elevator doors had already closed six inches when Pannucci's right arm, which was holding the leash, extended into the cab. The right door continued to close, striking Pannucci's right arm and tearing her skin, as she pushed her left hand and the left side of her body against the closing left door. She slowed the doors long enough to throw herself onto the elevator, but not before the doors injured her left shoulder, left side, back, neck, and right arm.

Before the accident, Pannucci had never experienced a problem with the elevator. Furthermore, biannual state inspections of the elevator before and after the incident uncovered no operating failures. And neither the building superintendent nor the community manager had noticed any problem with the elevator.

Thyssenkrupp serviced the elevator regularly. The employee assigned to Conifer inspected the elevator just four weeks before *408 it injured plaintiff. He testified that he observed no problems with the elevator doors during his visits.

Plaintiff's expert challenged the employee's testimony, contending that the employee failed to test the “door close force and door close kinetic energy.” He based this claim on an unchecked box in the maintenance record, and on one part of the employee's deposition testimony. The employee initially testified that an unchecked box meant an unperformed task. However, he later clarified that he observed all the elevator's operations, but he only checked boxes if he had to adjust or repair something.

At the summary judgment hearing, plaintiff argued that her case could proceed based on res ipsa loquitur. The court rejected that argument. The court did find that the accident was “one which may bespeak negligence,” and that Thyssenkrupp had exclusive control of the elevator. But the court also found that plaintiff failed to meet the doctrine's third requirement. One could reasonably infer that plaintiff negligently caused her own injuries by keeping her dog on such a long leash, and forcibly stopping the elevator doors.

The court granted Conifer summary judgment because plaintiff failed to satisfy the res ipsa doctrine's preconditions; plaintiff's expert did not identify negligence by Conifer; and plaintiff presented no evidence that Conifer had noticed the elevator was malfunctioning. The court later granted Thyssenkrupp summary judgment based on the court's earlier res ipsa loquitur ruling, and because the court held that plaintiff's expert offered a net opinion after the expert failed to appear at an N.J.R.E. 104 hearing.

II.

In her initial appellate brief, plaintiff argued that the Court's intervening decision in McDaid warranted reversal of summary judgment. In McDaid, the Court **952 held that the res ipsa doctrine “applies to an allegedly malfunctioning elevator door that causes injury to a passenger.” 234 N.J. at 141, 147, 189 A.3d 321. In that case, an elevator door struck a woman who was using a walker. *409 The door knocked the plaintiff down, and then struck her again. Id. at 137, 189 A.3d 321.

The woman had previously complained that the doors closed too fast. Id. at 136–37, 189 A.3d 321. And, a post-accident inspection found a problem with the elevator's electric eye, which was designed to prevent the doors from closing on objects it detected in the doors' path. Id. at 137, 189 A.3d 321. Noting that “automatic doors are not supposed to close on and seriously injure a passenger who enters or exits an elevator,” the Court held that it “bespeaks negligence” when they do. Id. at 143, 147–48, 189 A.3d 321. However, the Court expressly limited its holding to the first prong of the res ipsa loquitur test. Id. at 143, 189 A.3d 321.

In their responding briefs, Conifer and Thyssenkrupp argued that McDaid's limited holding did not help plaintiff, because the res ipsa loquitur doctrine's third prong — which was not at issue in McDaid — still doomed plaintiff's claim. Conifer did not address the second prong, and Thyssenkrupp did not challenge the court's finding that it exclusively controlled the elevator.

In her reply brief, plaintiff argued for the first time that we should discard the third prong because it defeats the purpose of the Comparative Negligence Act. And in a footnote in her reply brief, plaintiff stated that she did not address the second prong because Conifer did not “seriously argue” that defendants lacked exclusive control of the elevator.

III.

We are not obliged to address plaintiff's newly-minted argument that we should discard the res ipsa loquitur doctrine's third prong. Plaintiff failed to present the issue to the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234, 300 A.2d 142 (1973) (stating that appellate court generally need not address issues not properly presented to the trial court). And she did not even present the issue in her initial appellate brief; she improperly saved it for her reply. See

*410 State v. Smith, 55 N.J. 476, 488, 262 A.2d 868 (1970) (stating that it is improper to raise new issues in a reply brief).

However, we address the issue because of its public importance. See Nieder, 62 N.J. at 234, 300 A.2d 142 (stating that a court may address an issue not raised below if it is of “great public interest”); State v. Federico, 414 N.J. Super. 321, 328 n.5, 998 A.2d 517 (App. Div. 2010) (choosing to address an issue in a reply brief “given the importance of the issue”); Borough of Keyport v. Maropakis, 332 N.J. Super. 210, 216, 753 A.2d 154 (App. Div. 2000) (considering legal issue of general application initially raised in reply brief). After all, the record is sufficient, the issue is a legal one presented for our de novo review, and defendants addressed the merits in a sur-reply. See Henry v. N.J. Dep't of Hum. Servs., 204 N.J. 320, 330, 9 A.3d 882 (2010) (stating that an appellate court reviews a summary judgment order de novo);

Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230–31, 708 A.2d 401 (1998) (considering issue not raised before trial court where relevant record was complete and issue was fully briefed); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995) (stating that court reviews legal issue de novo).

Without citing any New Jersey authority questioning, let alone dispensing with, **953 the third prong, plaintiff cites the holdings of several other courts that have found the third prong incompatible with their states' comparative negligence statutes.

See Montgomery Elevator Co. v. Gordon, 619 P.2d 66, 70 (Colo. 1980) (stating that requiring plaintiff be “free from contributory negligence or other responsibilities ... would effectively erect a complete bar to recovery” and “would be in direct contravention to the concept of comparative negligence”); Giles v. City of New Haven, 228 Conn. 441, 636 A.2d 1335, 1341–42 (1994) (stating that continuing “to require a plaintiff to be free from contributory negligence” for res ipsa loquitur purposes would violate the “manifest legislative purpose” of the comparative negligence statute, and that instead, jury should compare parties' negligence); Dyback v. Weber, 114 Ill.2d 232, 102 Ill.Dec. 386, 500 N.E.2d 8, 12 (1986) (stating that, *411 applying comparative fault principles, “a plaintiff relying on the res ipsa loquitur doctrine” need not “prove freedom from contributory negligence”); Tipton v. Texaco, Inc., 103 N.M. 689, 712 P.2d 1351, 1359 (1985) (citing Montgomery Elevator and holding that “the mere existence of concurrent negligence does not preclude a particular finding of” defendants' negligence under res ipsa loquitur); Cyr v. Green Mountain Power Corp., 145 Vt. 231, 485 A.2d 1265, 1268 (1984) (stating that, under Vermont's comparative negligence statute, a jury must be allowed to compare parties' negligence if plaintiff presents evidence otherwise satisfying the res ipsa loquitur doctrine); Turk v. H.C. Prange Co., 18 Wis.2d 547, 119 N.W.2d 365, 372 (1963) (holding that “freedom from contributory negligence is not a requirement for the application of res ipsa loquitur,” where the plaintiff alleged a department store negligently failed to adjust the tread and comb of an escalator that caught a child's galosh).²

Some of these out-of-state cases involve persons battling malfunctioning elevators. See Montgomery Elevator, 619 P.2d at 68 (after elevator doors malfunctioned and left only a narrow opening, one passenger was able to separate the doors to exit; but when plaintiff tried to follow, the door pinned and injured her); Giles, 636 A.2d at 1337 (a fearful plaintiff, who had already struck her head when the malfunctioning elevator jolted, jumped from the stopped cab, further injuring herself).

A leading treatise agrees with the reasoning of these cases, stating, “[T]he advent of comparative fault should logically eliminate this [freedom from negligence] from the doctrine, unless the plaintiff's negligence would appear to be the sole proximate cause *412 of the event.” Prosser and Keeton on Torts § 39 (Keeton ed., 5th ed. 1984).

Although this authority is impressive, we decline to follow it for two reasons. First, plausible grounds for the third prong remain. Second and more importantly, it is not for us to disturb settled precedent absent a signal from the Supreme Court that it would do so.

The Restatement (Third) of Torts: Liab. for Physical & Emotional Harm, § 17, cmt. h (Am. Law Inst. 2010) (Third Restatement) recognizes that “[a] number of modern courts, noting that contributory negligence **954 is no longer a full defense, have ruled that this prerequisite is no longer appropriate” in applying res ipsa loquitur. However, the Third Restatement concludes that a plaintiff's contribution is still relevant in determining whether the doctrine should apply. “Properly understood, the doctrine concerning plaintiff contribution has a narrow scope, yet survives the shift to comparative responsibility.” Ibid.³

The res ipsa loquitur doctrine is an evidentiary principle. It allows a factfinder to infer a defendant's negligence from the facts of a particular accident. However, it may be unreasonable to draw that inference if a plaintiff's actions provide an alternative explanation for the accident.

The Third Restatement compares two factual scenarios to make this point. In the first, the plaintiff's negligence offers no explanation, *413 and the Third Restatement suggests there should be no bar to using the doctrine.

[C]onsider the motorist who parks a car at the top of an incline; a minute later, the car rolls down the incline and runs into a pedestrian, who at the time is carelessly not paying attention. ... [T]he plaintiff's carelessness – even though it has contributed to the accident – in no way diminishes the res ipsa loquitur idea that the car probably rolled because of the motorist's negligence. Hence res ipsa applies, despite the plaintiff's contribution.

[Ibid.]

In the second scenario, the Third Restatement suggests that a plaintiff's act of negligence should bar the use of the doctrine.

By contrast, consider the case in which a hotel guest, while taking a shower, is scalded by extremely hot water. In such a case, the plaintiff, in order to establish that the scalding probably happened because of the negligence of the hotel, needs to prove that nothing in the plaintiff's own conduct explains how the incident occurred. In cases fitting this pattern – in which plaintiff contribution as an explanation for what went wrong is an alternative to defendant negligence – there is merit in the plaintiff-contribution doctrine, and the doctrine should be applied without regard to the jurisdiction's acceptance of comparative responsibility. In this type of case, excluding plaintiff contribution is merely a specific aspect of establishing that defendant's negligence is the most probable cause of the accident.

[Ibid.]⁴

**955 We acknowledge that even under the Third Restatement's nuanced approach, the third prong must be tailored to fit only cases in which a “plaintiff's conduct is in fact an alternative to defendant negligence as an explanation for what went wrong.” Id. § 17 cmt. h, note.

*414 However, as recently as its decision in McDaid, our Supreme Court has included the third prong without amendment as a precondition for inferring negligence. 234 N.J. at 143, 189 A.3d 321. Although the Court incorporated the third prong of the res ipsa loquitur standard long before the 1973 adoption of the Comparative Negligence Act, see, e.g., Bornstein ex rel. Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269, 139 A.2d 404 (1958), it has survived without a hint of uncertainty in the years following, see, e.g., Jerista v. Murray, 185 N.J. 175, 192, 883 A.2d 350 (2005); Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 401, 874 A.2d 507 (2005); Brown v. Racquet Club, 95 N.J. 280, 288, 471 A.2d 25 (1984); Buckelew v. Grossbard, 87 N.J. 512, 525, 435 A.2d 1150 (1981).⁵

Judges on an intermediate appellate court are not bystanders in the development of the common law. “As judges in a system rooted in the common law, we have an independent obligation, where circumstances require, to fill lacunae in the law ....” A.N. ex rel. S.N. v. S.M. ex rel. S.M., 333 N.J. Super. 566, 579–80, 756 A.2d 625 (App. Div. 2000) (Kestin, J., concurring). However, plaintiff does not ask us to fill a gap in the law; she asks us to change the law the Supreme Court has established. That, we may not do. State v. Steffanelli, 133 N.J. Super. 512, 514, 337 A.2d 625 (App. Div. 1975). It is not our role “to alter a rule solidly supported by the courts of last resort,” Orlik v. De Almeida, 45 N.J. Super. 403, 409, 133 A.2d 55 (App. Div. 1957), or “to engraft ... an exception that was not expressed” in the Court's own statement of a rule, State v. Rodriguez, 459 N.J. Super. 13, 25, 207 A.3d 272 (App. Div. 2019). Absent “significant precedent to suggest that the Court” is prepared to alter a settled rule of law, we *415 shall not do so in its place. See

State v. Colon, 374 N.J. Super. 199, 216, 863 A.2d 1108 (App. Div. 2005).

IV.

We briefly address plaintiff's argument that it met the second prong as it relates to Conifer. A landlord may not delegate its duty to exercise reasonable care for its tenants' safety, even if it “contracts for maintenance of an elevator.” Rosenberg, 366 N.J. Super. at 303, 841 A.2d 99. Furthermore, “a group approach to res ipsa loquitur is supportable” in cases where “two parties ... share responsibility for a dangerous activity.”

Third Restatement at § 17 cmt. f. In particular, if one party owns and controls a building, and a second party sold and exclusively services the elevator in that building, “res ipsa loquitur warrants findings of negligence on the part of both parties” if the elevator malfunctions. Ibid.

**956 However, plaintiff raised the point not just in her reply brief, but in a footnote. That is improper. See State v. Mays, 321 N.J. Super. 619, 636, 729 A.2d 1074 (App. Div. 1999). Plaintiff was not entitled to rely on Conifer's silence on the subject in its opposition brief, when plaintiff failed to mention it in her initial brief. Nor was Conifer obliged to address the issue in its sur-reply, given plaintiff's improper presentation of the claim in the reply brief. Under these circumstances, it would be unfair to reach the issue of whether plaintiff met the exclusive control prong as to Conifer.

Affirmed.

All Citations

465 N.J.Super. 403, 243 A.3d 948

Footnotes

We will refer to both LLCs as “Conifer.”

Plaintiff also cited Watzig v. Tobin, 292 Or. 645, 642 P.2d 651, 654–65 (1982), which did not directly rely on comparative negligence statutes, but did hold that a “plaintiff's participation does necessarily exclude the operation of res ipsa loquitur,” id. at 655, where the plaintiff drove into a cow that escaped a farm. The Oregon court previously relied on the “comparative negligence system” to permit a plaintiff to recover under the res ipsa doctrine “in spite of his contributing negligence.” Cramer v. Mengerhausen, 275 Or. 223, 550 P.2d 740, 744 (1976).

Section 17 of the Third Restatement describes the doctrine as follows: “The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff's harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.” By contrast, the Restatement (Second) of Torts, § 328D(1) (Am. Law Inst. 1965) requires a plaintiff to prove that his or her conduct did not contribute to the accident, stating that the doctrine applies if “(a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.”

The Third Restatement based the scalded hotel-guest example on

Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 538 A.2d 690 (1988). See Third Restatement, § 17 cmt. h, note.

Malvicini affirmed the trial court's refusal to instruct the jury on res ipsa loquitur. However, the court relied not on the third prong, which defendant did not contest, but on the second, holding that the plaintiff could not demonstrate the defendant's exclusive control.

Malvicini, 538 A.2d at 693. The court stated that the second prong was intended “to exclude the possibility of an intervening act of the plaintiff or a third party which causes or contributes to ... the accident.”

Ibid. We take no position on whether a scalded New Jersey hotel guest would be barred from a res-ipsa-based claim, particularly since New Jersey regulations set maximum water temperatures to protect guests against their own carelessness in regulating hot and cold water. See N.J.S.A. 5:10-15.3.

By contrast, the Court has acknowledged the view that the exclusive control requirement should be modified to require a plaintiff to show that “the apparent cause of the accident [is] such that the defendant would be responsible for any negligence connected with it.” Brown, 95 N.J. at 290, 471 A.2d 25 (quoting Bornstein, 26 N.J. at 276, 139 A.2d 404 (Francis, J., concurring) (quoting Prosser on Torts 205, 206 (2d ed. 1955))).

4.3.4.6 Schroerlucke v. McDaniel Funeral Home Hypo 4.3.4.6 Schroerlucke v. McDaniel Funeral Home Hypo

Do you think Res Ipsa Loquitur should apply to this case? What is one potentially serious hurdle for the application of that doctrine?

Kentucky Court of Appeals

291 S.W.2d 6

1956-05-25

Howard SCHROERLUCKE, Administrator of the Estate of Maude Mae Schroerlucke, Deceased, Appellant, v. McDANIEL FUNERAL HOME, Inc., Appellee.

Court of Appeals of Kentucky.

May 25, 1956.

*7W. Howard Clay, Louisville, for appellant.

Charles W. Porter, Walter R. King, Louisville, for appellee.

STEWART, Judge.

This action was initiated by one Maude Schroerlucke to recover $12,000 damages from appellee, defendant below, for injuries claimed to have been occasioned by the latter’s negligent act. Subsequently, she died from a cause unrelated to her injuries and her son, Howard Schroerlucke, who was substituted as plaintiff, now appeals from a summary judgment rendered by the lower court in appellee’s behalf.

At the time of the accident, October 18, 1952, appellee, a corporation engaged in the funeral business, was conducting a burial service for the original plaintiff’s husband at the Seventh Day Adventist First Church at 1621 South Fourth Street in Louisville. For many years Maude Schroerlucke had suffered from an arthritic condition which required her to use a wheel chair to get about. The particular chair she was using was portable and collapsible, and. when opened, it had a mechanism underneath which, when fastened, held the chair erect.

On the day of the funeral, appellant requested one James Riley, an employee of appellee, to take the chair of his mother from the back porch of her residence, where appellant had placed it, to the church for her use while attending the funeral there. Appellant showed Riley how to collapse the chair and how to put it back together again; and he admonished Riley to be certain to check the chair in order that it would stay up. Riley testified he told appellant he would not collapse the chair but instead he would transport it in the back of appellee’s large flower truck in its upright position. According to this witness, appellant departed and he, Riley, moved the chair as it had been set up and did not thereafter touch or tamper with its mechanism. Upon reaching the church he placed it near the entrance on the sidewalk. This was done, he indicated, approximately thirty minutes before the funeral party arrived.

Appellant testified the chair was not collapsed but was erect when he arrived at the church with his mother. The chair had to be lifted up a step before it could be pushed into the church, and appellant asked W. G. McDaniel, appellee’s president, to do this for him. In complying with this request McDaniel merely picked up the chair and set it onto the next level. Appellant did not look at the mechanism of the chair to see whether it was fastened, but placed his mother, whom he was carrying, in the chair. It collapsed after he had pushed her about three feet. From this accident she suffered the injuries that gave rise to this action. Appellant stated he could not tell whether the mechanism had been fastened before the accident or not, but he added it was not broken.

H. L. Hacker, a witness for appellant, testified he saw a wheel chair at the scene of the accident leaning against one of the automobiles parked near by. He could not identify the car, saying: “I don’t know *8what kind it was, whether a family car or * * * a hearse or * * * a flower wagon, or what.” Nor could he say whether the chair was the one belonging to Maude Schroerlucke. Other witnesses of appellant furnished no proof materially different from the facts already set forth.

It is appellant’s contention the evidence we have recited was sufficient to warrant the. application of the doctine of res ipsa loquitur. It is insisted the fact of the accident under the circumstances established a prima facie case which required appellee to go forward with its proof, and the lower court’s ruling that a case had not been made out and the granting of a summary judgment dismissing the complaint constitute reversible error.

9 Wigmore on Evidence (3rd Ed., 1940), See. 2509, pp. 380-384, declares that the following considerations should limit the application of the rule of res ipsa loquitur: “(1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have been at the time of the injury in the control, of the party charged; (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. It may be added that the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.”

Under the same section of the above volume of Wigmore, there appears this statement in a footnote to page 391, taken from Springs v. Doll, 197 N.C. 240, 148 S.E. 251, which sets forth these instances where and when the plaintiff may not claim the.benefit of the doctrine of res ipsa loquitur: ■

“ ‘The principle does not apply (1) when all the facts causing the accident are known and testified to by the wit-

nesses at the trial; (2) where more than one inference can be drawn from the evidence as to the cause of the injury ; (3) where the existence of negligent default is not the more reasonable probability, and where the proof of the occurrence, without more, leaves the matter resting only in conjecture; (4) where it appears that the accident was due to a cause beyond the control of the defendant, such as the act of God or the wrongful or tortious act of a stranger; (5) when the instrumentality causing the injury is not under the exclusive control or management .of the defendant; (6) where the injury results from accident as defined and contemplated by law.’ ”

Applying the pertinent limitations and exceptions of the rule, noted in the quoted excerpts, to the testimony, we find that neither inspection nor user of the wheel chair at the time of Maude Schroerlucke’s injury was in the control of appellee. On the contrary, the chair was owned by appellant’s intestate, it was under the intestate’s and appellant’s control at the .time of the accident, and both of these parties had a full opportunity to examine it in order to ascertain any defective condition that might exist. As a matter of fact, appellant was so fully experienced in the mechanism of the chair, he was able to instruct one of ap-pellee’s employees in its operation. For this reason, and because of the fact that the ownership, control, and right of inspection of the chair were vested in appellant and his mother, they, and particularly appellant, were in a much more superior position, than was appellee, to explain the cause of the casualty.

The evidence in the record reflects that this was a rather large funeral, that Riley arrived with the wheel chair before the rest of the funeral procession, and that he placed the chair upon the sidewalk. It remained there for some time before Maude Schroerlucke was placed in it. During the period of time that the chair was upon the sidewalk, any number of others in attendance at the funeral could have moved the chair or tampered with it, either of which *9acts could have caused it to collapse. Another principle of the doctrine of res ipsa loquitur, mentioned above, requires that the doctrine be applied only when the nature of the accident itself not only clearly supports the inference of negligence on the part of the defendant but excludes all other inferences that it might be due to one or more causes of which the defendant is not responsible. See also Herrin’s Adm’x v. Jackson, Ky., 265 S.W.2d 775 on this point.

We conclude this is not a res ipsa loquitur case. It follows the lower court properly rendered summary judgment in favor of ap-pellee.

. Wherefore, the judgment is affirmed.

4.3.4.7 Restatement Third, Section 17, Res Ipsa Loquitur 4.3.4.7 Restatement Third, Section 17, Res Ipsa Loquitur

The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff's harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.

Restatement (Third) of Torts: Phys. & Emot. Harm § 17 (2010)

4.4 Causation 4.4 Causation

4.4.1 Factual Causation 4.4.1 Factual Causation

4.4.1.1 The Basic Rule -- the "But For" Test 4.4.1.1 The Basic Rule -- the "But For" Test

4.4.1.1.1 Doe v. Boys Clubs of Greater Dallas, Inc. ("The Poor Predictor Case") 4.4.1.1.1 Doe v. Boys Clubs of Greater Dallas, Inc. ("The Poor Predictor Case")

Supreme Court of Texas

907 S.W.2d 472

No. 94-0281

1995-06-08

C.J. DOE, Individually and as Next Friend of C.G. Doe, Her minor Child, V.M. Coe, Individually, and J.M. Coe, Individually, and as Next Friends of R.M. Coe and A.C. Coe, Their Minor Grandchildren, Petitioners, v. BOYS CLUBS OF GREATER DALLAS, INC., Respondent.

No. 94-0281.

Supreme Court of Texas.

Argued Dec. 13, 1994.

Decided June 8, 1995.

*475Kip A. Petroff, Dallas, for petitioners.

John R. Robinson, Donald G. Stanford, Michael F. Pezzulli, Dallas, for respondent.

GONZALEZ, Justice,

delivered the opinion of the Court,

in which PHILLIPS, Chief Justice, HECHT, ENOCH and OWEN, Justices, join.

This is a suit against a boys club for damages arising from the sexual molestation of boys by a volunteer worker. The plaintiffs brought a cause of action primarily based on negligence and the Texas Deceptive Trade Praetiees-Consumer Protection Act (DTPA). TexJBus. & Com.Code §§ 17.46(b)(5), 17.46(b)(23), 17.50(a). The trial court granted summary judgment for the Boys Clubs of Greater Dallas, Inc., and the court of appeals affirmed. 868 S.W.2d 942. Because we hold that the plaintiffs failed to raise fact issues on key elements of each of their claims against the Boys Club, particularly on the elements of proximate and producing cause, we affirm the judgment of the court of appeals.

In 1985, Boyd Ray Mullens was convicted of the misdemeanor offense of driving while intoxicated and ordered by the court to perform sixty hours of community service. (This was Mullens’s second DWI conviction. The first one occurred in California in 1974.) The Dallas County adult probation department referred Mullens to a volunteer center for assignment to a community service organization. Neither the probation department nor the volunteer center, which provides referral services solely for probationers, investigates volunteers or attempts to determine the appropriateness of a volunteer’s choice of organizations. Mullens volunteered to perform his community service hours at the Boys Club in Mesquite, Texas.

The Boys Club had Mullens fill out an application. On the application, he indicated that the club should not contact his employer, a sheriffs department. The Boys Club did not contact his employer, in any other manner screen the application, or independently investigate Mullens. Mullens began working at the Boys Club in March 1986, and finished his sixty hours of service in September of the same year. He continued to volunteer at the Boys Club through the summer of 1987.

The plaintiffs are (1) the minor brothers, A.C. and R.M. Coe, (2) their grandparents and guardians, Mrs. V.M. Coe and Mr. J.M. Coe, individually and as next friends of the Coe brothers, (3) the minor, C.G. Doe, and (4) his mother, Ms. C. J. Doe, individually and as his next friend. In brief, this case arose from Mullens’s sexual assaults of the three minor plaintiffs, as well as other young boys not parties to this appeal. Mullens met two of the minor plaintiffs at the Boys Club in the summer of 1986, and one minor plaintiff the following summer. He took them and their friends on various outings not sponsored by the Boys Club. During these years, Mullens also became a trusted acquaintance and family friend of the three boys’ grandparents, Mr. and Mrs. Coe, and a common visitor in their home. A detailed history follows.

*476Prior to enrolling her grandsons at the club, Mrs. Y.M. Coe telephoned the main office for the five Dallas-area Boys Clubs and spoke with a woman named Loretta. With regard to volunteers, Loretta told Mrs. Coe that the Boys Club “checked them out thoroughly.” Mrs. Coe brought her grandsons, A.C. and R.M. Coe, to the Mesquite club to purchase memberships in June 1986. By the time they joined the club, Mullens had nearly finished his sixty hours of community service. The Coe brothers became acquainted with Mullens there. Mullens also visited Mr. and Mrs. Coe in their home up to ten times. Later in the summer of 1986, he proposed taking the brothers on a camping trip.

Mrs. Coe returned to the Boys Club to ask its personnel about Mullens. She was told that Mullens was a volunteer, that he worked for a sheriffs department, that the club had no complaints about his conduct, and that “he seemed to be okay.” However, the Boys Club’s education director emphasized that with regard to letting Mullens take the boys camping, “The Boys Club couldn’t make that choice for her. She needed to make that decision for herself.” Mr. and Mrs. Coe gave their permission for Mullens to take A.C. and R.M. Coe on the overnight camping trip. On the trip, after Mullens gave the two boys cigarettes, he sexually abused A.C. Coe. In the fall of 1986, he sexually abused R.M. Coe while on a fishing trip. Mullens continued to be a regular guest in the Coe home through 1988, and spent the night on many occasions.

The next summer, the Coe brothers’ cousin, C.G. Doe, joined the Boys Club while he was spending the summer with Mr. and Mrs. Coe, his grandparents. Mr. Coe brought him to the club in July 1987, and purchased a membership for him. Mullens met C.G. Doe at the Boys Club through the Coe brothers. He first sexually abused C.G. Doe on a second private camping trip taken alone with the three boys later the summer of 1987. On this trip, Mullens gave the boys money in exchange for sexual contact with them. The record does not indicate that Mullens used alcohol to accomplish his assaults on any of the boys who are parties to this appeal.

The plaintiffs brought this negligence and DTPA action against the Boys Club and Mul-lens in June 1990. Among other claims, they alleged that the Boys Club negligently accepted Mullens as a volunteer without investigation or screening, negligently failed to supervise him, failed to disclose material information about Mullens, misrepresented that the club thoroughly investigated its volunteers, and misrepresented that the club and its workers had characteristics they did not have. The trial court granted the Boys Club’s motion for summary judgment and severed the action against the club from the action against Mullens.

The court of appeals affirmed summary judgment for the Boys Club. On the negligence claims, it ruled that the Boys Club owed a duty to exercise reasonable care in selecting its workers, including volunteers such as Mullens, and that the Boys Club breached this duty. 868 S.W.2d at 949-51. However, the court of appeals held as a matter of law that the Boys Club could not reasonably foresee Mullens’s assaults on the boys; in the absence of an element of proximate cause, therefore, summary judgment on the plaintiffs’ negligence actions was proper. Id. at 952. With regard to the DTPA claims for failure to disclose and for misrepresentation, the court of appeals affirmed summary judgment for the Boys Club on three grounds: (1) Mrs. Coe’s decision to allow her grandsons to go camping with Mullens, after inquiring at the club about him, was not a “transaction” under the DTPA; (2) the Boys Club was not aware of Mullens’s two DWI convictions, so it could not be liable to the plaintiffs for failure to disclose them; and (3) although the Boys Club may have misrepresented that it thoroughly investigated volunteers, the alleged misrepresentations were only to Mrs. Coe, and her intervening inquiry to the club and other circumstances made the misrepresentations not the producing cause of the boys’ injuries as a matter of law. Id at 954-55 (citing Riojas v. Lone Star Gas Co., 637 S.W.2d 956, 960 (Tex.App.—Fort Worth 1982, writ ref'd n.r.e.)).

The plaintiffs appeal the holdings that there was no proximate cause and no producing cause as a matter of law to support the negligence and DTPA claims, respectively. A defendant is entitled to summary judgment *477if it disproves an essential element of the plaintiffs causes of action as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991) (a negligence case); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991) (a DTPA ease). In reviewing a summary judgment, we consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant’s favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Primarily because we conclude that the Boys Club proved as a matter of law that its conduct was not the cause in fact of the plaintiffs’ injuries, we hold that summary judgment on the plaintiffs’ negligence and DTPA claims was proper for want of evidence on the common element of actual causation. See Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 164 (Tex.1995). Where noted, we also conclude that the plaintiffs’ claims fail because there was no evidence to establish other requisite elements of their causes of action. Consequently, we affirm the judgment of the court of appeals.

II.

The elements of a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of duty. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Assuming without deciding that the Boys Club owed the plaintiffs the duty to exercise reasonable care in investigating its personnel and that it breached that duty, we focus on the issue whether the Boys Club’s failure to investigate, screen, or supervise its volunteers proximately caused the injuries the plaintiffs allege.

The components of proximate cause are cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). These elements cannot be established by mere conjecture, guess, or speculation. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980); Farley v. MM Cattle Co., 529 S.W.2d 751, 755 (Tex.1975). The test for cause in fact is whether the negligent “act or omission was a substantial factor in bringing about injury,” without which the harm would not have occurred. Prudential, 896 S.W.2d at 161 (citing McClure, 608 S.W.2d at 903); see Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458-59 (Tex.1992); Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex.1988). Cause in fact is not shown if the defendant’s negligence did no more than furnish a condition which made the injury possible. See Bell v. Campbell, 434 S.W.2d 117, 120 (Tex.1968). As we stated in Carey v. Pure Distrib. Corp., 124 S.W.2d 847, 849 (Tex.1939), “The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of resulting injuries.... [and] justify the conclusion that such injury was the natural and probable result thereof.” See, e.g., Boyd v. Fuel Distribs., Inc., 795 S.W.2d 266, 272 (Tex.App.—Austin 1990, writ denied) (holding that a convenience store’s sale of beer to an eighteen-year-old was not the cause in fact of a drunk driver’s fatal car accident because the sale was to the passenger and not to the driver); Texas Am. Bank v. Boggess, 673 S.W.2d 398, 402 (Tex.App.—Fort Worth 1984, writ dism’d by agr.) (ruling that a bank’s employment of a repossessor was not the cause in fact of the car owner’s injuries since the owner was injured by a person that the repossessor had hired without the bank’s knowledge). In other words, even if the injury would not have happened but for the defendant’s conduct, the connection between the defendant and the plaintiffs injuries simply may be too attenuated to constitute legal cause. See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995); Lear Siegler, 819 S.W.2d at 472.

We conclude that if the Boys Club breached a duty to investigate, screen, or supervise volunteers, this breach was not the cause in fact of the plaintiffs’ injuries. Assuming the Boys Club had investigated Mullens’s criminal record, revelation of the two misdemean- or DWI convictions would not have precluded Mullens’s presence at the club. The club knew that Mullens was a probationer under court order to perform community service; further investigation would only have provided details about the nature of his offenses. There is no evidence that the Boys Club would not have taken Mullens as a volunteer if it had known he had been convicted for *478driving while intoxicated. We conclude that Mullens’s presence at the club was not due to breach of any duty to screen or to investigate. See East Tex. Theatres, Inc. v. Rutledge, 453 S.W.2d 466, 468-69 (Tex.1970) (finding no cause in fact because no evidence established that, had a theater operator removed “rowdy persons” from a balcony, the person who injured the plaintiff would have been removed). Moreover, Mullens’ presence at the club was but a preliminary condition in the course of events which made possible his assaults on A.C. and R.M. Coe and on C.G. Doe. Lastly, since there is no evidence that Mullens molested or assaulted any boys at the club’s premises, there is no evidence the Boys Club’s alleged failure to supervise was a producing cause of the injuries to A.C. and R.M. Coe or to C.G. Doe. We hold as a matter of law that the Boys Club’s failure to investigate, screen, or supervise its workers was not the cause in fact of the plaintiffs’ injuries.

Foreseeability, the other aspect of proximate cause, requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Nixon, 690 S.W.2d at 549-50. The danger of injury is foreseeable if its “general character ... might reasonably have been anticipated.” Id. at 551 (quoting Carey, 124 S.W.2d at 849) (emphasis omitted). The question of foreseeability, and proximate cause generally, involves a practical inquiry based on “common experience applied to human conduct.” City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987) (quoting Cook Consultants, Inc. v. Larson, 700 S.W.2d 231, 236 (Tex.App.—Dallas 1985, writ ref'd n.r.e.)). It asks whether the injury “might reasonably have been contemplated” as a result of the defendant’s conduct. McClure, 608 S.W.2d at 903. Foreseeability requires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendant’s conduct brings about the injury. See Restatement (Second) of Torts § 435(2) (1965).

In this case, we agree with the court of appeals that if the Boys Club had investigated Mullens’s criminal record, the resulting information would not have caused the club reasonably to anticipate his subsequent sexual assaults on the minor plaintiffs. 868 S.W.2d at 952. The prior DWI convictions did not indicate criminal conduct in any way akin to sexual assault of young boys. The course of events was such that Mullens’s assaults of A.C. and R.M. Coe and C.G. Doe was so remotely related to the Boys Club’s failure to investigate, screen, or supervise volunteers that no reasonable mind could anticipate the result. Mullens’s prior record could not have caused the Boys Club reasonably to anticipate the danger he presented to the plaintiffs.

Because the plaintiffs’ evidence did not raise a fact question concerning cause in fact or foreseeability, there was no evidence that the Boys Club’s failure to investigate, screen, or supervise Mullens was the proximate cause of the boys’ injuries. See Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596-97 (Tex.1987) (in a negligent en-trustment case, finding no proximate cause because the defendant’s entrustment of a truck to a driver did not cause the accident, and the defendant’s knowledge about the driver did not lead it to foresee the danger resulting in injury). Therefore, we affirm the judgment of the court of appeals on the negligence claims in favor of the Boys Club.

III.

The plaintiffs point to the statements by the Boys Club that it thoroughly investigated volunteers and that Mullens “seemed to be okay” to support their DTPA claims that the club failed to disclose material information and made misrepresentations. The elements of these DTPA actions are: (1) the plaintiff is a consumer, (2) the defendant engaged in false, misleading, or deceptive acts, and (3) these acts constituted a producing cause of the consumer’s damages. See Tex.Bus. & ComCode § 17.50(a)(1). To prevail on their DTPA causes of action, the plaintiffs in this case would have to establish that they were “consumers.” Id. § 17.45(4); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 538 (Tex.1981). Except for Ms. C.J. Doe, C.G. Doe’s mother, the plaintiffs either purchased Boys Club memberships or *479were the beneficiaries of memberships purchased for them. However, we do not need to determine if the plaintiffs were consumers since we conclude that the Boys Club’s alleged failure to disclose and misrepresentations were not the producing causes of the plaintiffs’ injuries. Assuming that the plaintiffs are consumers under the DTPA, we focus our analysis primarily on producing cause.

First, we consider whether the Boys Club’s alleged failure to disclose material information was the producing cause of the plaintiffs’ injuries. To be actionable under the DTPA, a failure to disclose material information necessarily requires that the defendant have known the information and have failed to bring it to the plaintiffs attention. See TexBus. & Com.Code § 17.46(b)(23) (stating that it is unlawful to fail to “disclose information concerning ... services which was known at the time of the transaction”); Robinson v. Preston Chrysler-Plymouth, Inc., 633 S.W.2d 500, 502 (Tex.1982) (holding that a car dealer had no duty to disclose material facts it did not know). There is also no duty if a defendant fails to disclose material facts it should have known. Prudential, 896 S.W.2d at 162. This is not a case in which the defendant willfully maintained a state of ignorance in order to avoid a duty of disclosure. The summary judgment evidence reveals that had the Boys Club investigated Mullens’s criminal record, the prior two DWI convictions would not have indicated his propensity to sexually abuse young boys. We conclude that the DTPA claims based on failure to disclose material facts about Mullens’s proclivity to molest boys have no merit as a matter of law. The Boys Club cannot be held liable for failing to disclose information that it did not and could not have known.

Mrs. Coe’s affidavit stated that if the Boys Club’s education director had disclosed to her what the director knew about Mullens — that he was a court-referred probationer serving a criminal court’s order of community service — when she specifically asked about him, she would not have allowed Mullens to take her grandsons anywhere alone. Viewed in the light most favorable to the non-movant, Mrs. Coe’s affidavit may raise a fact issue as to producing cause. However, the DTPA claim based on the director’s failure to disclose Mullens’s status nonetheless is not actionable under section 17.46(b)(23) of the DTPA. See TexBus. & Com.Code § 17.46(b)(23). The Boys Club’s failure to disclose that Mullens was a probationer with two DWI convictions was not a false, misleading, or deceptive act under the DTPA. Under section 17.46(b)(23), information known at the time of the transaction must be withheld for the purpose of inducing the consumer into a transaction which the consumer would not have entered had the information been disclosed. Id. Furthermore, the information withheld must concern goods or services. See generally Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 273 (Tex.1995) (explaining that a DTPA claim for failure to disclose is “not available” against-a defendant which neither induced the plaintiff into a transaction nor withheld information concerning goods or services). The facts of this case do not fall within section 17.46(b)(23). The education director’s failure to disclose what she knew about Mullens was not done for the purpose of inducing Mrs. Coe into a transaction, and the undisclosed information did not concern goods or services. The failure to disclose Mullens’s status occurred when Mrs. Coe inquired regarding the private camping trip that Mullens proposed for A.C. and R.M. Coe. It did not arise in connection with a transaction for the acquisition of goods or services as required by section 17.46(b)(23) of the DTPA.

We next consider whether the Boys Club’s alleged misrepresentations were the producing causes of the plaintiffs’ injuries. See TexBus. & Com.Code § 17.46(b)(5). The plaintiffs first assert that the Boys Club affirmatively endorsed Mullens to Mrs. Coe as a chaperon for the 1986 camping trip. The summary judgment evidence does not support this claim. They also claim that the producing cause of their injuries was the Boys Club’s misrepresentations that it provided a “wholesome environment,” that it “checked out” volunteers “thoroughly,” and that Mullens “seemed to be okay.” Generally, an act is false, misleading, or deceptive if *480it has the capacity to deceive an “ignorant, unthinking, or credulous person.” Spradling v. Williams, 566 S.W.2d 561, 562 (Tex.1978). The Boys Club advertised that it provided a “wholesome environment” for low-income, under-privileged boys. Mr. and Mrs. Coe likely saw the advertisement, but it did not contain an actionable representation as a matter of law. See Dowling v. NADW Mktg., Inc., 631 S.W.2d 726, 729 (Tex.1982) (ruling that a statement of opinion by a seller in advertisements is not actionable unless it is a representation of fact or a promise to perform specific acts). Other than the advertisements, there is no evidence that the Boys Club ever made any representations to Mr. Coe, including when he brought C.G. Doe to join the club, to C.G. Doe, or to his mother, Ms. C.J. Doe (who did not purchase her son’s membership and who did not telephone or visit the club). Thus, the misrepresentation claims of Mr. Coe, C.G. Doe, and Ms. C.J. Doe fail as a matter of law.

The Boys Club’s other statements were made solely to Mrs. Coe, with regard to A.C. and R.M. Coe.. Mrs. Coe was assured that the club thoroughly investigated volunteers when she telephoned the main office of the Dallas-area clubs. When Mrs. Coe visited the Boys Club to inquire about Mullens before allowing the boys to go camping with him, the club’s education director told her Mullens “seemed to be okay.” We consider the latter statement first.

The Boys Club argued that the representation that Mullens “seemed to be okay” was not false. We agree. This statement should be put in context. According to Mrs. Coe, the full response to her inquiry was:

[ T]hey have never seen him do anything wrong.

that he was a volunteer; that he ... worked for the Sheriffs department ... and that he came in at 4 o’clock in the afternoon. And that’s all they told me. And that he seemed to be okay and they had no complaints. And that was it.

(Emphases added.) In this conversation, therefore, the statement “he seemed to be okay” was a truthful statement that the Boys Club staff had not witnessed any misconduct by Mullens while he was at the club. Absent evidence that the defendant’s statement was false, a DTPA action for misrepresentation cannot survive summary judgment. See Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex.1980) (finding assertions that an engine housing was in “excellent” and “perfect” condition were actionable under the DTPA because they misrepresented its actual characteristics). The DTPA’s purpose in making misrepresentations actionable is “to ensure that descriptions of goods or services offered for sale are accurate.” Pennington, 606 S.W.2d at 687. In this case, the Boys Club’s statement that Mullens “seemed to be okay” was accurate in context. Furthermore, because the Boys Club declined to endorse or sponsor Mullens to Mrs. Coe, telling her, “She needed to make that decision for herself,” the statement that he “seemed to be okay” can hardly be said to describe goods and services offered for sale. The DTPA’s purposes would not be served by holding it to be an actionable misrepresentation. See Tex.Bus. & Com.Code §§ 17.46(a), (b)(5).

The dissent argues that “he seemed to be okay” was a material misrepresentation which was the producing cause of the boys’ injuries, based on Mrs. Coe’s assertion that she would not have allowed Mullens to drive A.C. and R.M. Coe anywhere had she had known about his DWI convictions. The dissent’s theory is that the statement was actionable because it could not be truthfully made about a probationer serving an order of community service for a DWI conviction. We disagree on two grounds. First, as stated, there is no evidence this statement was false. Second, even if it was false, the statement “he seemed to be okay” was not a misrepresentation that is actionable under the DTPA. When the statement was made, no transaction was occurring between Mrs. Coe and the Boys Club. The alleged misrepresentation did not induce Mrs. Coe into doing business with the Boys Club, and it was not the producing cause of the damages that later arose from Mullens’s acts. See Prudential, 896 S.W.2d at 167 (Cornyn, J., concurring) (because a misrepresentation did not influence the plaintiffs behavior, conelud-*481mg there was no evidence that it was the 'cause in fact of the plaintiffs harm); Southwestern Bell Tel. Co. v. Boyce Iron Works, Inc., 726 S.W.2d 182, 187 (Tex.App.—Austin 1987) (finding no proof that a telephone company’s misrepresentations influenced the plaintiffs purchase of an alarm company’s services), rev’d, on other grounds, 747 S.W.2d 785 (Tex.1988). The camping trip Mullens organized in 1986, and all subsequent outings, were not Boys Club-sponsored events.

We return to the first alleged misrepresentation. To avoid summary judgment on the DTPA claim for misrepresentation based on the Boys Club’s statement that it “cheeked them out thoroughly,” Mrs. Coe, on behalf of A.C. and R.M. Coe, had to show some evidence that the misrepresentation was the producing cause of the boys’ injuries. See Home Sav. Ass’n v. Guerra, 733 S.W.2d 134, 136 (Tex.1987) (requiring evidence that the consumer was adversely affected by the defendant’s deceptive action for liability under the DTPA). A producing cause is a substantial factor which brings about the injury and without which the injury would not have occurred. See Prudential, 896 S.W.2d at 161 (citing McClure, 608 S.W.2d at 903). For DTPA claims, the plaintiffs need only show producing cause, id, and need not establish that the harm was foreseeable. See Hycel, Inc. v. Wittstruck, 690 S.W.2d 914, 922 (Tex.App.—Waco 1985, writ dism’d) (stating that foreseeability is not an aspect of producing cause). Raising a fact question of producing cause, as with proximate cause, requires some evidence that the defendant’s act or omission was the cause in fact of the plaintiffs injury. Prudential, 896 S.W.2d at 161. However, merely given a negligent act and an injury, it does not logically follow that “the two must be causally connected.” General Motors Corp. v. Saenz, 873 S.W.2d 353, 361 n. 6 (Tex.1993). Were this so, then the plaintiffs could impose liability on the Boys Club merely by establishing that the club made misrepresentations, without any requirement of proof of causation. See id. In short, the plaintiffs here had to raise a fact issue of an “unbroken causal connection” between the misrepresentation to Mrs. Coe and her grandsons’ injuries. See Texas Indem. Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026, 1030 (1940).

In this case, notwithstanding our perspective on the evidence in favor of the plaintiffs, we conclude that the causal connection was broken. The Boys Club disproved its misrepresentation that it thoroughly investigates volunteers was the cause in fact of the boys’ subsequent injuries at Mullens’s hands. The events were as follows: the Coe brothers joined the club, they met Mullens, Mullens met Mr. and Mrs. Coe, and Mullens methodically proceeded to inveigle these grandparents into giving him their trust and confidence. He visited the Coe home almost every weekend the latter part of the summer of 1986, and visited even more, including weekday visits, the summer of 1987. The Coes let Mullens take the boys to lunch and to play “putt putt” golf within weeks of meeting him. According to A.C. Coe, Mullens actively deceived the Coes into placing their grandsons alone in his care. On at least ten visits to the Coes’ home prior to the first camping trip, Mullens:

Just sat there and talked to my grandparents and got to know them and stuff.... they would talk about child abuse and stuff and how he hated it ... and [was] highly against drinking and doing drugs ... he was real innocent and everything, [like] he didn’t do nothing like that....

Common sense tells us that the relationship between Mr. and Mrs. Coe and Mullens developed independently of the Boys Club’s relationship with the Coes. When Mrs. Coe returned to the Boys Club to inquire about Mullens, the club’s education director emphasized, “The Boys Club couldn’t make that choice for her,” and, “She needed to make that decision for herself’ whether to put her grandsons in Mullens’s care.1 Given the long-term relationship Mullens fostered with *482Mr. and Mrs. Coe, the Boys Club’s statement about investigating volunteers was not the producing cause of the boys’ injuries. It at most furnished an attenuated condition that made the injury possible. See Union Pump, 898 S.W.2d at 776; Bell, 434 S.W.2d at 120 (holding that what “created the condition” which makes the injury possible is not the factual cause as a matter of law). Therefore, we hold that summary judgment for the Boys Club on the plaintiffs’ DTPA misrepresentation claims was proper.

For the forgoing reasons, we affirm the judgment of the court of appeals. We need not address whether negligent misrepresentation is a cause of action we would recognize in these circumstances because the plaintiffs did not plead it, address a point of error to it, or brief the matter. We also we need not consider as an alternate ground for summary judgment whether the statute of limitations has run on the plaintiffs’ claims.

GAMMAGE, Justice,

joined by HIGHTOWER, CORNYN and SPECTOR, Justices,

dissenting.

The only issue presented in this ease is whether the plaintiffs raised a genuine issue of material fact, thereby precluding summary judgment for the defendant. Because the plaintiffs’ affidavits clearly raise a fact issue whether Boys Club’s admitted misrepresentations produced or proximately caused the plaintiffs’ injuries, I dissent.

Proximate cause requires both cause-in-fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). An act or omission is a cause-in-fact if it is a substantial factor in bringing about the injury, without which the harm would not occur. Id.

Before allowing the boys to go with Mul-lens on a camping trip which was not sponsored by Boys Club, Mrs. Coe specifically asked Allen, the Education Director at Mesquite Boys Club, about Mullens. Mrs. Coe told Allen that Mullens wanted to take the boys on the camping trip and asked her what she thought about it. Allen agreed in her deposition testimony that Mrs. Coe “specifically asked” what Allen knew about Mullens. Allen responded that Mullens “seemed to be okay and they had no complaints,” but failed to disclose the facts as she knew them: Mul-lens was at Boys Club to fulfill community service hours by order of a criminal court because of his conviction for DWI.

Mrs. Coe’s affidavit unequivocally states that had she known that Mullens was convicted of a crime, she would not have allowed her grandchildren to go anywhere alone with him:

If the Boys Club had disclosed that Boyd Ray Mullens had been convicted of a crime and was working at the Boys Club in order to fulfill required community service horn’s, I would not have permitted [the boys] to go anywhere alone with [Mullens]. I did not know that [Mullens] had been convicted of a crime until after [he] was arrested in August, 1988.... If there ever was a time that I was concerned or had doubts about Mr. Mullens, those doubts disappeared when I learned that the Boys Club had represented that they thoroughly investigated the workers to have direct contact with the children.

Boys Club admitted that, unlike the procedure it normally follows with all employees and volunteers, it did not check any of Mul-lens’ references, did not review his police record, was not even aware of what he had been convicted, and did not in any way investigate his application even though it knew the only reason he was there was to complete part of a criminal sentence. This evidence specifically raises fact issues whether Boys Club’s misrepresentations were the proximate cause of the injuries suffered by the children, that is, whether the parents and guardians of the three boys would have allowed contact with Mullens had they known of his criminal conviction.

Although the majority opinion omits any discussion of it, I believe the pleadings regarding Boys Club’s failure to disclose the relevant facts about Mullens are sufficient to establish a claim for negligent misrepresentation under Restatemeot (Seoond) of TORTS § 311 (1977). This is a simple negligence case to which section 311 should be applied. Section 311 of the Restatement provides as follows:

*483§ 311. Negligent Misrepresentation Involving Risk of Physical Harm

(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results

(a) to the other, or

(b) to such third persons as the actor should expect to be put in peril by the action taken.

(2) Such negligence may consist of failure to exercise reasonable care

(a) in ascertaining the accuracy of the information, or

(b) in the matter in which it is communicated.

Comment b further provides that this section “finds particular application where it is a part of the actor’s business or profession to give information upon which the safety of the recipient or a third person depends.”

One Texas court of appeals has favorably cited section 311, EDCO Prod., Inc. v. Hernandez, 794 S.W.2d 69 (Tex.App.—San Antonio 1990, writ denied), and the following jurisdictions have adopted or followed it: Heard v. City of New York, 82 N.Y.2d 66, 603 N.Y.S.2d 414, 623 N.E.2d 541 (1993); Birmingham v. Fodor’s Travel Publications, 73 Haw. 359, 833 P.2d 70 (1992); Moore v. Commonwealth, 846 S.W.2d 715 (Ky.Ct.App.1992, review denied); Thompson v. Hardy Chevrolet-Pontiac-Buick, Inc., 203 Ga.App. 499, 417 S.E.2d 358 (1992); Garcia v. Superior Court, 50 Cal.3d 728, 268 Cal.Rptr. 779, 789 P.2d 960 (1990); Board of Educ. v. A, C & S, Inc., 137 Ill.2d 428, 137 Ill.Dec. 635, 546 N.E.2d 580 (1989); Village of Cross Keys, Inc. v. U.S. Gypsum Co., 315 Md. 741, 556 A.2d 1126 (1989); Bloskas v. Murray, 646 P.2d 907 (1982); Hall v. Ford Enters., Ltd., 445 A.2d 610 (D.C.1982); English v. Lehigh County Auth., 286 Pa.Super. 312, 428 A.2d 1343 (Ct.1981).

Neither has Boys Club disproved that its misrepresentations were the producing cause of the plaintiffs’ injuries under the Texas Deceptive Trade Practices Act. Producing cause encompasses different policy considerations and limitations than does proximate cause, but it includes a cause-in-fact analysis. See Union Pump v. Allbritton, 898 S.W.2d 773, 782-84 (Tex.1995) (Cornyn, J., concurring); The Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 160 (Tex.1995). Although I agree that C.J. Doe was not a consumer under the DTP A, the court of appeals recognized, and Boys Club admits, that the other plaintiffs were consumers under the Act.

Viewing the evidence in the light most favorable to the nonmovants,1 we must take as true the plaintiffs’ statements that they would not have permitted the children to accompany Mullens if they had known of his criminal record and we must indulge the inference that if they had known Boys Club did absolutely no investigation into Mullens’ background they would likewise not have permitted the boys to have extended contact with him away from Club-supervised events.

Upon reviewing the summary judgment evidence, the conclusion is inescapable that Boys Club has not established as a matter of law that its affirmative misrepresentations to the plaintiffs was not the producing or proximate cause of the events made the basis of this lawsuit. Whether the Coes’ and Doe’s decision to allow Mullens to have contact with the children was influenced by Boys Club’s affirmative misrepresentations is a disputed issue of material fact.

For the foregoing reasons, I respectfully dissent. I would reverse the judgment of the court of appeals and remand this cause for trial.

4.4.1.1.2 Radley v. Knepfly ("The Overwhelming Fire Case") 4.4.1.1.2 Radley v. Knepfly ("The Overwhelming Fire Case")

Why does the court hold that there was no liablity in this case? Should the jury have heard this case?

Supreme Court of Texas

135 S.W. 111

1911-03-01

RADLEY et al. v. KNEPFLY.

(Supreme Court of Texas.

March 1, 1911.)

1. Trial (§ 139*) — Taking Case from Jury— Uncontroverted - Facts.

To authorize a court to take a question from the jury, the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it; but where the evidence is not sufficient in law to authorize a finding for the plaintiff, the jury should be peremptorily instructed to find for the defendant.

[Ed. Note. — For other cases, see Trial, Cent. Dig. § 332; Dec. Dig. § 139.*]

2. Innkeepers (§ 10*) — Proximate Cause op Injury — Violation op Ordinance.

In _an action for death, by fire, of a lodger in a building used as a lodging house, evidence held to show that the violation of an ordinance requiring fire escapes was not the proximate cause of the injury.

[Ed. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 14-16; Dec. Dig. § 10.*]

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Hattie Radley and others against Magdalene Knepfly. From a judgment for defendant (124 S. W. 447), plaintiffs bring error.

Affirmed.

M. L. Morris and Crow & Donalson, for plaintiffs in error. Carden, Starling & Car-den and McCart, Bowlin & McCart, for defendant in error.

RAMSEY, J.

This suit was brought in the district court of Dallas county by plaintiffs in error against .Mrs. Magdalene Knep-fly to recover damages resulting from the death of R. F. Radley, caused by a fire in the Knepfly building, situated at the corner of Main and Poydras streets, in the city of Dallas, due, as was averred, to the negligence of Mrs. Knepfly in failing to prc Vide said building, or, at least the third story thereof, which was used as a lodging house, with suitable and proper fire escapes, as required by the ordinances of the city of Dallas.

At the trial had in said court, the judge instructed a verdict peremptorily for the defendant in error. This judgment was, on appeal, affirmed by the Court of Civil Appeals for the Fifth supreme judicial district (124 S. W. 447). That court held that the cause of action asserted by appellants was defeated on four different propositions; (1) That under the charter of the city of Dallas it was without authority to enact the ordinance, the failure to observe which was claimed to have caused the damages sued for. (2) That, if the power to enact this ordinance be conceded, it was, by its terms, oppressive, unreasonable, and therefore void. (3) That, under the facts, the deceased assumed the risks and hazard which caused his death. And, (4) as a conclusion of fact from the testimony introduced, that the failure on the part Of the defendant in error to comply with said ordinance relied on was not the proximate cause of the death of R. F. Radley. It follows, logically, that, if the Court of Civil Appeals is correct on either of these propositions, its judgment should be affirmed.

In view of the conclusion to which we have arrived, we have deemed it unnecessary to consider the first three propositions, all involving questions of law decided by the Court of Civil Appeals, though our failure so to do is not to be considered as an affirm-*112anee of the correctness of any of them. We have concluded, however, that, in view of the facts appearing in the record, that court was correct in holding that, under the uneontra-dicted evidence in the case, the plaintiffs in error were not entitled to recover.

The uncontradieted evidence showed that what was known as the Knepfly building in the city of Dallas wás a three-story structure, and that the third story was occupied as a lodging house. This building fronted on Main street, with a frontage of ápproximately 25 feet, and ran back on Poydras street a distance of something like 75 feet. The following plat will disclose the general plan of the third story of the building, with its subdivision into rooms and hallways:

The facts immediately preceding the unfortunate death of Radley are disclosed in the testimony of John R. Minor. This witness was introduced by plaintiffs in error, and was shown to be the roommate of Rad-ley. It was also shown in the evidence that he had himself brought a suit against the defendant in error for damages for injuries sustained on the occasion of the fire in question. The following statement, taken from the direct examination, covers, in a general way, the actions of himself and Radley on the immediate occasion of .the fire: “We slept with our heads towards the west. When I got up, I went from the side of the bed around the end, and sat down on the floor, and the floor was hot. I got up and sat down on the end of the bed, and it brought me in view of the door, and I saw the smoke coming in — three little curls under the hall door — and then I halloed to Mr. Radley to get up; the building was on fire. Then I ran to the Poydras end of the building, and broke out the window with a little hammer laying on the window seat — the north window. I broke out the window with the hammer and punched the screen out with my hand. I could see the smoke coming from the second story. The wind blew the smoke in my face. Just as I turned around, Mr. Radley opened the door to the hall, the west door, and the flames shot in there, and I threw my hands up to my face to protect myself, and Mr. Radley came staggering back, and I ran and caught him, and carried him to the window. I carried him to the north window. As soon as I saw him going through the side, I jumped through the south window. He jumped first, and I jumped right after. I never heard him say anything at all, when he opened the door into the hall. He never said anything after he got up. I broke out the window and looked out, and as I turned around, he opened the door. Pie seemed to have picked his clothes up and threw them around him; threw his coat around his shoulders. I had on a suit of underwear. I never had on any shoes. I didn’t notice whether he had on shoes or not. South of the door from our room into the hall, there was a window; it had a shade over it. I think it was a wire glass window. It was colored opaque; you could not see through it. There was no notice of any fire, except the smoke and heat. When the door was opened, it was all on fire, the door looked like a solid mass of flame. That was out in the hall, coming in through the door as soon as the door was opened. That flame appeared to be coming up directly through the stairway; our door opened onto the side of the stairway, and the stairway came up the side of the building. It was four or five feet from our door to where the stairway started down; it was four or five feet to the banisters of the stairway. It appeared to me that the whole hall was filled with *113flame; all'the hall I could see was filled with flame. A man could not have gone from our door, either to the top of the stairway or the fire escape, .and get out alive. Mr. Badley appeared to be suffering and badly burned on his face and hands. They were the only exposed parts at that, time. He did not go to the window himself; I helped him.I led him to the window. I suppose I caught him by the arm. There was a window sill, and he got up onto that.”

The following additional statement is made in his cross-examination: “When I was down on the floor, I saw the smoke coming in under the door, and I called to Badley that the ■building was on fire. Immediately after that I broke out the window. I stuck my head out of the window, and was almost suffocated with snjoke. I stepped back into the room, and ak I turned around, Mr. Rad-ley opened the door. When the door was opened, it blew back with such force as to throw Mr. Radley about halfway across the room. I then threw my hands to my face to protect myself from the flames. When I turned around, Mr. Radley was badly burned. He was burned on the face and hands, and the exposed portions of the body. Mr. Radley opened the door at the west end of t,he hall, and the hall appeared to be a solid mass of flames. To my own knowledge, I could not say whether he was burned fatally or not.”

He also made the following statement on cross-examination: “I helped him to the window and up into the window. He was burned, and that caused me to help him. He appeared to be so badly burned as to need my help. I ran to him, to see if he needed my assistance, and helped him to the window. It was a low window; a little bit lower thgn that table, I believe. As soon as he jumped out of the north window, I followed him immediately out of the south window. I did not stop to raise the sash nor screen, nor to break it out either. I saw when he opened the door that it was impossible for him or me, either, to get out through the hallway. I don’t believe it would have been possible to go to the fire escape in the rear, nor the stairway, alive. I did not look for the fire escape or try to go to the fire escape when the door was opened, because, when the door was opened, it was impossible to get to the hall. I made no effort to go to the rear nor the front of the building.”

This testimony was ufieontradicted by any other witness, except that the injuries resulting to Mr. Radley from the fire were not by the physician believed to have been as serious as would have been implied from the statement of Minor, but there was no contradiction from any source of this statement as to the facts occurring at the moment of the ■fire. The question, therefore, arises, Was there evidence in the record from - which the jury might have .found • that, if there had been a complete compliance with the ordinance relied on, and if the defendant in error had installed and maintained a fire escape in the north end of the building, could and would deceased have availed himself of it and have escaped? It is well settled that, to authorize the court to take a question from the jury, the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. The matter is thus well stated by Associate Justice Williams, in the ease of Washington v. Missouri, K. & T. Ry. Co. of Texas (Civ. App.) 36 S. W. 778: “Would the law sanction a verdict had the jury rendered one for plaintiff, upon the evidence submitted to them? If not, then it was the duty of the court to instruct a verdict for the defendant, and not, as seems to be the contention of the appellant, to permit the jury to return a verdict; and if, in the judgment of the court, the verdict was not warranted by the evidence, to set it aside, and grant a new trial. We take it that it is now settled by the weight of authority that, when the evidence is not sufficient in law to authorize a finding for the plaintiff by the jury, the court is not required to go further with the trial, bpt the jury should be peremptorily instructed to find for the defendant. Railway Co. v. Faber, 77 Tex. 153, 8 S. W. 64; Pleasants v. Fant, 22 Wall. 120, 22 L. Ed. 780. The doctrine, as announced in the cases here cited, and in many others which might be cited, is now generally recognized and enforced by the courts, both of England and America, in the trial of jury cases; and the rule which was formerly observed in some courts, which required a submission of the cause to the jury if there were but a scintilla of evidence to support an' issue of fact, .is now generally repudiated.”

It is the contention of plaintiffs in error that if there had been a fire escape at the north end of the building, that Radley would, or, at least, might have gone there, and thus have escaped. To have done so, he must either have gone through the door leading from the room where he slept — that is, room No. 2 — into the hall, or he must have broken the doors in the rooms north of him, and from thence reached such fire escape at the north end of the building. . We have already seen that he could not enter the hall from the room where he 'Slept, but that his attempt to do so was met with such a mass of flames as drove him back into his room and almost cost him his life. This door, it will be -noted, was almost at the stairway on the inside and very close to the fire escape on the outside of the building, which was in good .order and sufficient in size for the building. In his then condition it is the merest surmise that he would have attempted to have reached the more distant fire escape on the north end of the building, nor does it appear ■ that, if such attempt had *114been made, it could or would have been successful. On tbe contrary, it seems to us that escape in that direction was probably, if not certainly, impossible.

A careful examination of the testimony has convinced us that the fire was discovered so late, and had attained such headway, that escape, except in the manner attempted, was impossible, and that no additional precaution or safeguard provided for and required by any of the ordinances read in evidence would have saved this unfortunate man. Much as we may deplore his pathetic death, it seems to us to have been due to the time and place, the hour, the fierceness and suddenness of the fire, and not to any of the grounds of negligence alleged. So believing, it follows that the judgment of the Court of Civil Appeals be, and the same is hereby, in all things affirmed.

Affirmed. '

4.4.1.1.3 Joshi v. Providence Health System of Oregon Corp. ("The Exceptions to But-For Causation Case") 4.4.1.1.3 Joshi v. Providence Health System of Oregon Corp. ("The Exceptions to But-For Causation Case")

Oregon Court of Appeals

198 Or. App. 535, 108 P.3d 1195

9911-12261; A117813

2005-03-30

Argued and submitted October 5,2004,

affirmed March 30, 2005

Nisha JOSHI, Personal Representative of the Estate of Satyapriy Joshi, Appellant, v. PROVIDENCE HEALTH SYSTEM OF OREGON CORP., dba St. Vincent Hospital & Medical Center, an Oregon business; James L. Hedtke, M.D.; and Ezra Azhar, M.D.; and Aloha Family Practice Clinic, an Oregon Business, Respondents.

9911-12261; A117813

108 P3d 1195

*535-aKathryn H. Clarke argued the cause for appellant. With her on the opening brief was John E. Uffelman.

Michael T. Stone argued the cause for respondent Providence Health System of Oregon Corp., Lindsey H. Hughes argued the cause for respondent James L. Hedtke, M.D., and Janet M. Schroer argued the cause for respondents Ezra Azhar, M.D., and Aloha Family Practice Clinic. With them on the joint brief were Brisbee & Stockton LLC, Keating Jones Bildstein & Hughes PC, and Hoffman Hart & Wagner LLP.

Before Landau, Presiding Judge, and Brewer, Chief Judge, and Edmonds, Judge.

*535-bBREWER, C. J.

*536BREWER, C. J.

Satyapriy Joshi died of a stroke after two doctors failed to diagnose his condition. Joshi’s wife brought a wrongful death action against both doctors and the hospital and clinic where each practices. The trial court directed a verdict for defendants after plaintiff proffered expert opinion testimony that a timely diagnosis and proper treatment would have improved Joshi’s chance of survival by approximately 30 percent but that Joshi probably would have died anyway. Plaintiff appeals, assigning error to the trial court’s ruling that she failed to present sufficient evidence that defendants’ conduct caused Joshi’s death to submit the case to the jury. We affirm, because plaintiff did not present expert testimony that there was a reasonable medical probability that defendants’ conduct caused Joshi’s death. See Chouinard v. Health Ventures, 179 Or App 507, 512, 39 P3d 951 (2002) (when causation involves a complex medical question, evidence is insufficient to go to the jury without expert testimony that there is a reasonable medical probability of a causal connection).

We review the directed verdict for errors of law, considering the evidence in the light most favorable to plaintiff, the nonmoving party. Checkley v. Boyd, 170 Or App 721, 738, 14 P3d 81 (2000), rev den, 332 Or 239 (2001). On a Wednesday, six days before he died, Joshi suffered a stroke. An ambulance took Joshi to the hospital where Dr. Hedtke, the emergency room physician, treated him. Hedtke failed to diagnose Joshi’s stroke. Instead, he wrote Joshi a prescription for Vicodin and released him. On Saturday, Joshi became disoriented, and his wife called Dr. Azhar, the family’s physician, to report her husband’s symptoms. Azhar also failed to correctly diagnose Joshi’s condition. He attributed the disorientation to the Vicodin and instructed Joshi to replace it with Tylenol and to come to his office Monday morning. On Sunday, Joshi suffered another stroke. The hospital again treated him unsuccessfully, and he died two days later.

Joshi’s wife, as his personal representative, brought a wrongful death action under ORS 30.020 against Azhar, Hedtke, and the clinic and hospital where each practices. The *537trial court granted a directed verdict for defendants after plaintiffs expert witness was unable to state in an offer of proof that, if defendants had correctly diagnosed Joshi’s first stroke and treated him for it, Joshi probably would have survived.1 Instead, the expert explained that, had the doctors diagnosed the stroke, they would have had three treatment options available to prevent the second stroke that took Joshi’s life. He opined that the first treatment option, tPA,2 would have improved Joshi’s chance of survival by 30 percent. He offered a similar opinion about the second treatment option, aspirin, based on a study that showed that taking aspirin decreases by 28 percent the chance of a second stroke. With regard to the third treatment option, heparin,3 the expert opined that heparin would have improved Joshi’s chance of survival, but he could not say by how much. The expert did not testify that the treatments could have been combined to cumulatively improve Joshi’s chance of survival above 30 percent.

The sole issue on appeal is whether plaintiffs offer of proof included sufficient evidence of a cause-in-fact connection between defendants’ negligence and Joshi’s death to present a triable issue for the jury. Plaintiff argues that the evidence was sufficient because it demonstrated that defendants’ negligence caused Joshi to lose a possibility of survival, and a reasonable juror could find that the lost possibility was a “substantial factor” in causing his death. According to plaintiff, conduct may be a substantial factor in causing death even if it is more probable than not that, but for a defendant’s conduct, the death would have occurred anyway. Defendants respond that the element of cause-in-fact *538requires “but-for” causation and that the rule that a plaintiff in a medical malpractice case must prove cause-in-fact “to a reasonable medical probability” required plaintiff to demonstrate that it is more probable than not that, but for defendants’ negligence, Joshi would have survived.

Because plaintiff brought her claim under the wrongful death statute, ORS 30.020, we first look to that statute for guidance in resolving the parties’ dispute.4 ORS 30.020(1) provides, in part:

“When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent * * * may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission.”

(Emphasis added.) To determine the meaning of “caused” in the statute, we consider the statute’s text and context. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). We also consider “rules of construction of the statutory text that bear directly on how to read the text.” Id. at 611. One such rule is to give a word its well-defined legal meaning. Gaston v. Parsons, 318 Or 247, 253, 864 P2d 1319 (1994).

In Oregon, “cause” has a well-defined legal meaning: it means cause-in-fact. Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 605-06, 642 P2d 624 (1982). The Supreme Court has applied that meaning in interpreting the word in the wrongful death statute. See Fergison v. Belmont Conv. Hospital, 217 Or 453, 481-82, 343 P2d 243 (1959) (applying principles of cause-in-fact to wrongful death action); Copenhaver Admt'x v. Tripp, 187 Or 662, 681-82, 213 P2d 450 (1950) (same). “Cause-in-fact” also has a well-defined legal meaning: it generally requires evidence of a reasonable probability that, but for the defendant’s negligence, the plaintiff *539would not have been harmed. See, e.g., Horn v. National Hospital Association, 169 Or 654, 679, 131 P2d 455 (1942) (holding that, to prove causation, the plaintiff was required to “show that competent action would have been substituted for negligent inaction, and that there was a reasonable probability that the subsequent ailments would have been less if the substitution had been made”). Plaintiff argues, however, that Oregon courts have more recently abandoned the “but-for” test for causation in favor of a more lenient “substantial factor” test.5 As we now explain, that argument oversimplifies the law.

When employed as a standard for determining cause-in-fact, the phrase “substantial factor” generally does not eliminate the concept of “but-for” causation. Rather, the substantial factor standard is an alternate description of the cause-in-fact test and requires a showing of “but-for” causation in all but a few cases. See Simpson v. Sisters of Charity of Providence, 284 Or 547, 561, 588 P2d 4 (1978) (noting that, “in the great majority of cases” the two formulations “amount [] to the same thing” (internal quotation marks omitted)). In Simpson, the Supreme Court rejected the plaintiffs argument that the substantial factor standard would permit a jury to find that the defendant’s conduct caused the plaintiffs injury, even though the jury determined that the injury would have occurred anyway. Instead, the court agreed with Prosser that,

“[ejxcept as indicated, no case has been found where the defendant’s act could be called a substantial factor when the event would have occurred without it; nor will cases very often arise where it would not be such a factor when it was so indispensable a cause that without it the result *540would not have followed. W. Prosser, Law of Torts 240, § 41 (4th ed 1971).”

Id. Thus, the court recognized in Simpson that, except in a limited range of cases, the substantial factor standard does not relieve a plaintiff of the burden of showing “but-for” causation. It follows that, unless the situation here falls into that limited range, plaintiff was required to demonstrate “but-for” causation.

The range of cases in which the substantial factor and “but-for” formulations diverge consists primarily of two types. In the first type, the acts of multiple tortfeasors combine to cause an indivisible injury, even though not all the acts were necessary to cause the injury. For example, where five people beat another person to death and any three beatings would have killed the victim, no single beating can be said to be a “but-for” cause of the death because the death would have occurred without it. W. Page Keeton, Prosser and Keeton on Torts 267 n 25 (5th ed 1984).6 Yet, a plaintiff in such a case need show only that the combined tortious conduct was a “but-for” cause of her harm. Id. at 268-69. If that combined conduct was a “but-for” cause of the harm, then each act may be said to be a substantial factor in causing the harm. Id. That rule does not assist plaintiff in this case, however, because she does not assert that defendants’ combined conduct was a “but-for” cause of Joshi’s death.

In the second type of case, two causes concur to bring about a harmful result, and either one of them, operating alone, probably would have brought about the harm. Id. at 266-67. In that situation, both forces are substantial factors in causing the harm, although neither was a necessary cause. For example, if, when a decedent suffered a fatal stroke, a defendant had negligently administered a lethal dose of medication and either the stroke or the medication alone would *541have been fatal, the plaintiff would not have been required to show that the decedent would have survived in the absence of the defendant’s negligence. However, because plaintiff does not contend that the conduct of defendants, operating in the absence of another causal force, probably would have brought about Joshi’s death, that class of cases is also inapplicable here.7

Plaintiff remonstrates that several Oregon cases, particularly McEwen v. Ortho Pharmaceutical, 270 Or 375, 528 P2d 522 (1974), Escobedo v. Ward, 255 Or 85, 464 P2d 698 (1970), and Purcell v. Asbestos Corp., Ltd., 153 Or App 415, 424, 959 P2d 89, adh’d to as modified on recons, 155 Or App 1, 963 P2d 729 (1998), rev den, 329 Or 438 (1999), have adopted the substantial factor formulation in derogation of the “but-for” standard to determine cause-in-fact in circumstances similar to those present here.

In McEwen, the plaintiff alleged that two different oral contraceptives manufactured by different defendants had caused blindness in her right eye. The plaintiff had used one defendant’s oral contraceptive for several months and then stopped. Later, she began using the second defendant’s product. After her vision deteriorated, the plaintiff brought a negligence action against both manufacturers for failing to warn her that their products had a tendency to cause vision damage. The first defendant asserted that, in the absence of evidence that the plaintiff’s injuries were irreversible when she discontinued use of its product, the plaintiff had not shown that its conduct was a substantial factor in causing her injuries. The Supreme Court disagreed:

*542“The respective liability of multiple defendants depends upon whether the negligence of each was a substantial factor in producing the complained of harm. If both [defendants] were negligent and their negligence combined to produce plaintiffs injuries, then the negligence of [one defendant] was concurrent with that of [the other defendant] and does not insulate [the first defendant] from liability. This is true although the negligent omissions of each defendant occurred at different times and without concerted action. Nor is it essential to [the first defendant’s] liability that its negligence be sufficient to bring about plaintiff’s harm by itself; it is enough that [the first defendant] substantially contributed to the injuries eventually suffered by Mrs. McEwen.”

McEwen, 270 Or at 418 (citations omitted).

Plaintiff reads the quoted passage to mean that negligent conduct generally need not be a “but-for” cause to be a substantial factor in causing an injury. We do not share that view of the court’s decision. Rather, the court merely held that, if it was a cumulative cause of a harm, negligent conduct may be a “but-for” cause of the harm even if the conduct was not, by itself, sufficient to cause the harm. That proposition is unremarkable because causation-in-fact “includes every one of the great number of events without which any happening would not have occurred.” Restatement (Second) of Torts § 431 comment a (1974). Each of those events is considered to be a cause-in-fact of a harm, even though other events were also necessary antecedents of the harm. Purcell and Escobado mirror the pertinent facts and reasoning in McEwen and, likewise, do not support plaintiffs argument that she need not establish that defendants’ negligence was a “but-for” cause of Joshi’s death.

Plaintiff also cites section 432 of the Restatement to support her argument. That section states:

“(1) Except as stated in Subsection (2), the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.

“(2) If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about *543harm to another, the actor’s negligence may be found to be a substantial factor in bringing it about.”

Subsection (2) does not aid plaintiff, because it describes one of the situations recognized by Prosser and Keeton on Torts— specifically, where two forces combine to cause a harm and either of them, operating alone, probably was sufficient to cause the harm. As discussed, that situation does not exist here because plaintiff did not offer evidence that the conduct of defendants, by itself, probably was sufficient to cause Joshi’s death. Instead, the situation here falls under subsection (1) of section 432. Indeed, comment b to subsection (1) addresses the present problem:

“The statement in this Subsection is most frequently, although not exclusively, applicable where the actor’s tortious conduct consists in a failure to take some precautions which are required for the protection of another’s person or land or chattels. In such case, if the same harm, both in character and extent, would have been sustained even had the actor taken the required precautions, his failure to do so is not even a perceptible factor in bringing it about and cannot be a substantial factor in producing it.”

Restatement at § 432 comment b. Thus, the Restatement does not support plaintiffs argument that she offered sufficient evidence that defendants’ conduct caused Joshi’s death.

Plaintiff also argues that the evidence was sufficient to create a triable issue because it demonstrated the possibility that defendants’ negligence caused Joshi’s death. She contends that she was not required to present evidence that defendants’ negligence probably caused Joshi’s death. She relies on several Oregon decisions, including Harris v. Kissling, 80 Or App 5, 721 P2d 838 (1986), that have allowed recovery of damages for potential physical injuries the future occurrence of which was merely possible.

In Harris, we recognized a ‘lost opportunity’ as a distinct form of harm recoverable in a medical malpractice case. The plaintiff in that case had Rh positive blood and gave birth to a child with Rh negative blood. The hospital had failed to detect that condition and history and did not innoculate the plaintiff to prevent Rh antibodies from forming in her blood. As a result of those omissions, the plaintiff was at *544risk of having Rh problems in any future pregnancy. We concluded that the plaintiffs lost opportunity to have a healthy child was a compensable harm. We rejected the defendant’s argument that the plaintiff had not established a cause-in-fact connection between the hospital’s conduct and the plaintiffs harm. We reasoned that, even though future physical harm was only a possibility, putting the plaintiff in the position of having to choose between not having more children or having a potentially problematic pregnancy and a child with potentially serious health problems was, itself, a compensable harm. Id. at 10 (“The claim is for a lost opportunity, whether or not [plaintiff] take[s] advantage of it.”). Thus, although the evidence did not show that, because of the hospital’s negligence, it was more likely than not that the plaintiff would have a child who would suffer injuries, the evidence was sufficient to establish, to a reasonable medical probability, that the defendant’s negligence caused her “harm” — that is, the harm of being forced to make a Hobson’s choice.

Plaintiff also cites cases holding that a jury may consider the possibility of future medical problems in calculating damage awards, even if there is a less than 50 percent chance that the problems will occur. See Feist v. Sears, Roebuck & Co., 267 Or 402, 412, 517 P2d 675 (1973); Henderson v. Hercules, Inc., 57 Or App 791, 796-97, 646 P2d 658 (1982); Pelcha v. United Amusement Co., 44 Or App 675, 606 P2d 1168, rev den, 289 Or 275 (1980). Those decisions recognized, as did Harris, that the risk of harm itself may, in certain circumstances, be compensable. Like Harris, those cases required proof of probability for causation but, for purposes of identifying compensable harm, recognized possibilities as well as probabilities. However, those decisions did not abrogate the rule that, in a medical malpractice case, the plaintiff must present evidence that there is a “reasonable medical probability’ that a defendant’s negligence caused the plaintiffs harm. Horn, 169 Or at 679; Chouinard, 179 Or App at 512.

As discussed, ORS 30.020(1) authorizes recovery only “[w]hen the death of a person is caused by the wrongful act or omission of another [.]” (Emphasis added.) Accordingly, *545the asserted harm is Joshi’s death, and the decisions on which plaintiff relies are not controlling here.

Plaintiff’s final contention is that the “reasonable medical probability” standard describes the requisite level of confidence with which an expert must express his or her opinion, not the requisite level of proof for causation. Again, we disagree. Proof of cause-in-fact “must have the quality of reasonable probability, and a mere possibility that the alleged negligence of the defendant was the * * * cause of plaintiff’s injuries is not sufficient.” Cleland v. Wilcox, 273 Or 883, 887, 543 P2d 1032 (1975); Sims v. Dixon, 224 Or 45, 48, 355 P2d 478 (1960); see also Henderson v. U. P. R. R. Co., 189 Or 145, 162, 219 P2d 170 (1950) (“Without competent medical testimony that the blow which the plaintiff received was the probable cause of the gangrene and resulting amputation, there could be no case sufficient to go to the jury on that question.” (Emphasis added.)).

Plaintiff concedes that her expert did not state that Joshi probably would have lived had defendants not been negligent. In her brief, she states, “Dr. Jaush could not say that it was more probable than not that any of these treatments would have changed the outcome in this particular case and thus saved Mr. Joshi’s life.” Instead, her expert opined that there was, at most, a 30 percent possibility that the treatments would have saved Joshi’s life. As discussed, the mere possibility that defendants’ negligence caused Joshi’s death is not enough. Plaintiff was required to show that there was a reasonable medical probability that Joshi’s death would not have occurred in the absence of defendants’ negligence. Accordingly, the trial court did not err in directing a verdict for defendants.

Affirmed.

Prosser and Keeton identify two additional situations where the substantial factor and “but-for” causation formulas do not coincide. One situation arises when a similar, but not identical, result would have followed without the defendant’s act. Prosser at 267. For example, if A and B each sell a rope to C, who is bent on hanging himself, and C hangs himself with A’s rope, A’s act is a substantial factor in causing C’s death, even though, but for A’s conduct, C would probably have killed himself anyway using B’s rope. Id. at 267 n 32. The other situation arises where “one defendant has made a clearly proved but quite insignificant contribution to the result, as where he throws a lighted match into a forest fire.” Id. Plaintiff does not contend that either of those situations is applicable here.

4.4.1.2 When the Basic Rule Fails 4.4.1.2 When the Basic Rule Fails

4.4.1.2.1 Restatement Third, Section 27, on multiple sufficient causes 4.4.1.2.1 Restatement Third, Section 27, on multiple sufficient causes

If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.

Comment:

a. Multiple sufficient causes generally. This Section applies whenever there are two or more competing causes, each of which is sufficient without the other to cause the harm and each of which is in operation at the time the plaintiff's harm occurs. When an actor's tortious conduct is such a cause, it nevertheless would not be a factual cause if factual causes were limited to the definition in § 26: even without that tortious conduct, the harm would still have occurred because of the competing cause. Nevertheless, courts have long imposed liability when a tortfeasor's conduct, while not necessary for the outcome, would have been a factual cause if the other competing cause had not been operating.

Illustration:
- 1. Rosaria and Vincenzo were independently camping in a heavily forested campground. Each one had a campfire, and each negligently failed to ensure that the fire was extinguished upon retiring for the night. Due to unusually dry forest conditions and a stiff wind, both campfires escaped their sites and began a forest fire. The two fires, burning out of control, joined together and engulfed Centurion Company's hunting lodge, destroying it. Either fire alone would have destroyed the lodge. Each of Rosaria's and Vincenzo's negligence is a factual cause of the destruction of Centurion's hunting lodge.

In many cases, multiple sufficient causes will each, along with background causes, be capable of causing the harm, as in Illustration 1. This Restatement thus refers to causes such as Rosaria's and Vincenzo's negligence as multiple sufficient causes. However, in some cases, the tortious conduct will not be sufficient with background causes to be capable of causing the harm. This situation is addressed in Comments f and g. The cases addressed in those Comments include agents, such as a fraction of a lethal dose of a poison, that requires additional nonbackground causes in order to be capable of causing the harm. For those cases, “multiple sufficient causal sets” is a more accurate description of the factual circumstance.

As with causes under § 26, multiple sufficient causes may accelerate the time of the occurrence of a harm that would have occurred at some later point in the absence of the multiple sufficient causes. See § 26, Comment b. The period of time reflected by the acceleration of the harm forms the basis for determining damages in the case.

b. History and terminology. Courts and scholars have long recognized the problem of overdetermined harm—harm produced by multiple sufficient causes—and the inadequacy of the but-for standard for this situation. Both the first and Second Restatements included a special subsection to account for multiple sufficient causes. Nevertheless, cases invoking the concept are rare. Only a handful of reported cases invoke the standard contained in Restatement Second of Torts § 432(2), and most jurisdictions do not have a separate model jury instruction to be employed when multiple sufficient causes exist.

The Restatement Second of Torts contains some ambiguity about whether the factfinder has discretion to decide that, although a sufficient, but not necessary, cause exists, it is nevertheless not a factual cause of the harm. The ambiguity is created by language in § 432(2)§ 432(2) that the factfinder “may” find such a cause to be a “substantial factor” in causing the harm. The juxtaposition of the discretionary “may” with the evaluative “substantial” suggests that the factfinder can reject, as a factual cause, a multiple sufficient cause. This language may, alternatively, merely be an artifact of the use of “substantial factor” for factual causation in § 431§ 431 and the opportunity “substantial factor” provides the factfinder to decide that any factual cause is insubstantial and, therefore, does not satisfy the legal-cause standard provided in § 431 of the Second Restatement. Under that interpretation, the only discretion afforded the factfinder in the case of overdetermined harm would be the same as existed with but-for causes. This Restatement's § 26 and Comment j eliminate any discretion to reject insubstantial factual causes, and this Section does the same for multiple sufficient causes. There is no apparent reason for providing the factfinder discretion on normative or evaluative grounds to pick and choose among tortious acts that are independently (with other background circumstances) sufficient to cause the harm, and the Second Restatement provides none. When the tortious conduct is not itself sufficient (with other background circumstances; see Comment f), and its contribution is relatively trivial in comparison to the other causes, limitations are appropriate and are provided in Chapter 6 on Scope of Liability. See § 36, Comment b.

Restatement (Third) of Torts: Phys. & Emot. Harm § 27 (2010)

4.4.1.2.2 Mohr v. Grantham ("The Lost Chance MedMal Case") 4.4.1.2.2 Mohr v. Grantham ("The Lost Chance MedMal Case")

Does this case create an exception to the ordinary causation rules for negligence? If so, on what basis?

262 P.3d 490 (2011)172 Wash.2d 844

Linda J. MOHR and Charles L. Mohr, her husband, Appellants,
v.
Dale C. GRANTHAM, M.D., and Jane Doe Grantham, and their marital community; Brian J. Dawson, M.D., and Jane Doe Dawson, and their marital community; Brooks Watson II, M.D., and Jane Doe Watson, and their marital community; Kadlec Medical Center, a Washington corporation; and Northwest Emergency Physicians, Inc., a Washington corporation, Respondents.

No. 84712-6.

Supreme Court of Washington, En Banc.

Argued February 8, 2011.Decided October 13, 2011.

491 *491 Cheryl Rani Guttenbe Adamson, Attorney at Law, Kennewick, WA, for Appellants.

Christopher Holmes Anderson, Fain Anderson VanDerhoef PLLC, Mary H. Spillane, Williams Kastner & Gibbs, Donna Maria Moniz, Johnson Graffe Keay Moniz & Wick LLP, Seattle, WA, Jerome R. Aiken, Attorney at Law, Yakima, WA, for Respondents.

Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, George M. Ahrend, Ahrend Law Firm PLLC, Moses Lake, WA, amicus counsel for of Washington State Association for Justice Foundation.

OWENS, J.

¶ 1 Linda Mohr suffered a trauma-induced stroke and is now permanently disabled. She and her husband, Charles, claim that negligent treatment by her health care providers diminished her chances of avoiding or greatly minimizing her disability. In other words, they claim that negligence caused Mrs. Mohr a loss of the chance of a better outcome. In Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash.2d 609, 611, 614, 664 P.2d 474 (1983) (Dore, J., lead opinion), this court recognized the lost chance doctrine in a survival action when the plaintiff died following the alleged failure of his doctor to timely diagnose his lung cancer. This case compels consideration of whether, in the medical malpractice context, there is a cause of action for a lost chance, even when the ultimate result is some serious harm short of death. We hold that there is such a cause of action and, accordingly, reverse the order of summary judgment.

FACTS

¶ 2 In Richland, Washington, on the afternoon of August 31, 2004, Mrs. Mohr suffered a hypoglycemic event that caused her to run her car into a utility pole at approximately 45 m.p.h. She was taken by ambulance to the emergency room at Kadlec Medical Center (KMC). Having visible lacerations on her face from the car accident, Mrs. Mohr was given a neurological assessment upon arrival, at around 4:00 p.m., and a computerized tomography (CT) scan of her brain about an hour later. These tests were overseen or authorized by Dr. Dale Grantham, who was charged with Mrs. Mohr's care at KMC on August 31. The results were normal.

¶ 3 Following those neurological tests, however, Mrs. Mohr reported and was observed to have neurological symptoms, including being wobbly on her feet and having severe pain after being administered pain medication.^[1] Dr. Grantham informed one of Mrs. Mohr's physician sons, Dr. Brandt Mohr, by phone that he would carry out another neurological assessment before discharging 492 *492 her. He did not. Instead, he prescribed a narcotic, Darvocet, and sent Mrs. Mohr home with her husband. At that point, Mrs. Mohr could not walk herself to or from the car and had to be carried to bed by her husband when they arrived home. The Mohrs were not given discharge instructions that included specific information about head injuries.

¶ 4 Mrs. Mohr was again transported to KMC by ambulance just after 7:00 a.m. on September 1, 2004, because her husband was concerned that she remained very lethargic through the night. Dr. Brian Dawson was the attending emergency room physician that morning. By around 9:30 a.m., Mrs. Mohr was diagnosed as having a stroke. Specifically, she was first found to have an "evolving infarct ... in the right middle cerebral artery territory," Clerk's Papers (CP) at 119, which relates to a cause of a stroke.^[2] A magnetic resonance imaging (MRI) examination, performed shortly after 9:30 a.m., confirmed that Mrs. Mohr was in fact having a stroke.^[3] However, Dr. Dawson did not provide any anticoagulant or antithrombotic treatment or therapy. Around 11:30 a.m. Mrs. Mohr was transferred to the intermediate care unit, under the care of Dr. Brooks Watson.

¶ 5 Before the transfer, Mrs. Mohr's two physician sons had arrived at KMC to be by her side. They tried to get both Dr. Dawson and then, after her transfer, Dr. Watson to order a CT angiogram. A CT angiogram was not done until 2:30 p.m., after the Mohr sons had Dr. Watson repeatedly paged. Then, although the results were available at 3:27 p.m., Dr. Watson was not located or informed until 4:50 p.m. that the CT angiogram showed a dissected carotid artery. He still did not order anyone to administer anticoagulant therapy, antiplatelet agents, or any other treatment. Dr. Watson had prescribed aspirin around 2:00 p.m. but did not order its immediate administration.

¶ 6 Mrs. Mohr's sons finally arranged a transfer and transport to Harborview Medical Center. Dr. Watson signed the transfer form as a formality. Only shortly before her transport at 6:00 p.m. on September 1, 2004, was Mrs. Mohr finally given aspirin, though it had to be administered in suppository form because, by then, she could no longer swallow.

¶ 7 Mrs. Mohr is now permanently brain damaged; a quarter to a third of her brain tissue was destroyed. In particular, the portions of her brain that were damaged are involved with motor control, sensation, and spatial reasoning.

¶ 8 Mrs. Mohr and her husband filed suit, claiming that Mrs. Mohr received negligent treatment, far below the recognized standard of care. They argue that the doctors' negligence substantially diminished her chance of recovery and that, with nonnegligent care, her disability could have been lessened or altogether avoided. The Mohrs' claim relies, at least in part, on a medical malpractice cause of action for the loss of a chance. In support of their claim, the Mohrs presented the family's testimony, including her two sons who are doctors, and the testimony of two other doctors, Kyra Becker and A. Basil Harris. The testimony included expert opinions that the treatment Mrs. Mohr received violated standards of care and that, had Mrs. Mohr received nonnegligent treatment at various points between August 31 and September 1, 2004, she would have had a 50 to 60 percent chance of a better outcome. The better outcome would have been no disability or, at least, significantly less disability.

¶ 9 On April 16, 2009, the Benton County Superior Court granted summary judgment for the defendants on the basis that the Mohrs did not show "but for" causation and 493 *493 the hesitancy of the court to expand Herskovits to the facts of this case. The Mohrs appealed, and the Court of Appeals certified the case for our review.

ISSUES

¶ 10 1. In the medical malpractice context, is there a cause of action for a lost chance of a better outcome?

¶ 11 2. Did the trial court properly grant summary judgment for all defendants under CR 56(c)?

ANALYSIS

1. Lost Chance of a Better Outcome

¶ 12 The medical malpractice statute requires the same elements of proof as traditional tort elements of proof: duty, breach, injury, and proximate cause. RCW 7.70.040. Whether there is a cause of action for a lost chance of a better outcome in the medical malpractice context is a question of law, which we review de novo. Berger v. Sonneland, 144 Wash.2d 91, 103, 26 P.3d 257 (2001). The standard formulation for proving proximate causation^[4] in tort cases requires, "first, a showing that the breach of duty was a cause in fact of the injury, and, second, a showing that as a matter of law liability should attach." Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 475-76, 656 P.2d 483 (1983). In a medical malpractice case, for example, a plaintiff would traditionally seek to prove "cause in fact" by showing "that he or she would not have been injured but for the health care provider's failure to use reasonable care." Hill v. Sacred Heart Med. Ctr., 143 Wash.App. 438, 448, 177 P.3d 1152 (2008) (citing McLaughlin v. Cooke, 112 Wash.2d 829, 837, 774 P.2d 1171 (1989)). However, as the plurality noted in Herskovits, "[t]he word `cause' has a notoriously elusive meaning (as the writings on legal causation all agree)." 99 Wash.2d at 635 n. 1, 664 P.2d 474 (Pearson, J., plurality opinion). For this reason, and in service of underlying tort principles, this court and others have recognized some limited exceptions to the strict tort formula, including recognition of lost chance claims. See, e.g., id. at 619, 664 P.2d 474 (Dore, J., lead opinion), 634-35 (Pearson, J., plurality opinion).

¶ 13 Herskovits involved a survival action following an allegedly negligent failure to diagnose lung cancer. Over the course of a year, Leslie Herskovits repeatedly sought treatment for persistent chest pains and a cough, for which he was prescribed only cough medicine. Id. at 611, 664 P.2d 474 (Dore, J., lead opinion). When he finally sought another medical opinion, Herskovits was diagnosed with lung cancer within three weeks. Id. His diagnosing physician testified that the delay in diagnosis likely diminished Herskovits's chance of long-term survival from 39 percent to 25 percent. Id. at 612, 664 P.2d 474. Less than two years after his diagnosis, then 60 years old, Herskovits died. Id. at 611, 664 P.2d 474. The trial court dismissed the case on summary judgment on the basis that Herskovits's estate, which brought suit, failed to establish a prima facie case of proximate cause: it could not show that but for his doctor's negligence he would have survived because he "probably would have died from lung cancer even if the diagnosis had been made earlier." Id. Though divided by different reasoning, this court reversed the trial court, finding that Herskovits's lost chance was actionable.

¶ 14 The lead opinion, signed by two justices, and the concurring opinion, which garnered a plurality, agreed on the fundamental bases for recognizing a cause of action for the loss of a chance. The lead opinion explained:

To decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence.

Id. at 614, 664 P.2d 474. The plurality similarly noted that traditional all-or-nothing causation in lost chance cases "`subverts the deterrence objectives of tort law.'" Id. at 494 *494 634, 664 P.2d 474 (Pearson, J., plurality opinion) (quoting Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 YALE L.J. 1353, 1377 (1981)). Both opinions found that "the loss of a less than even chance is a loss worthy of redress." Id. With emphasis, the lead opinion agreed, stating that "`[n]o matter how small that chance may have been — and its magnitude cannot be ascertained — no one can say that the chance of prolonging one's life or decreasing suffering is valueless.'" Id. at 618, 664 P.2d 474 (Dore, J., lead opinion) (quoting James v. United States, 483 F.Supp. 581, 587 (N.D.Cal.1980)).

¶ 15 The lead and plurality opinions split over how, not whether, to recognize a cause of action. Drawing from other jurisdictions, especially the Pennsylvania Supreme Court's holding in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), the lead opinion held that the appropriate framework for considering a lost chance claim was with a "substantial factor" theory of causation. The court summarized that

once a plaintiff has demonstrated that the defendant's acts or omissions have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant harm.

Herskovits, 99 Wash.2d at 616, 664 P.2d 474 (additionally noting the Hamil court's reliance on the Restatement (Second) of Torts § 323 (1965), which provides that one who renders services to another, necessary for the protection of that person, is liable if "his failure to exercise [reasonable] care increases the risk of [physical] harm").^[5] The "substantial factor test" is an exception to the general rule of proving but for causation and requires that a plaintiff prove that the defendant's alleged act or omission was a substantial factor in causing the plaintiff's injury, even if the injury could have occurred anyway. Fabrique v. Choice Hotels Int'l, Inc., 144 Wash.App. 675, 684, 183 P.3d 1118 (2008).

¶ 16 Rather than looking to the causation element, the plurality opinion in Herskovits focused instead on the nature of the injury. Herskovits, 99 Wash.2d at 634, 664 P.2d 474 (Pearson, J., plurality opinion) ("[T]he best resolution of the issue before us is to recognize the loss of a less than even chance as an actionable injury."). The plurality noted among its concerns about the "all or nothing" traditional tort approach to recovery that it "creates pressure to manipulate and distort other rules affecting causation and damages in an attempt to mitigate perceived injustices." Id. In part, this characterizes what the Herskovits lead opinion does by prescribing that causation in all lost chance cases is to be examined under the substantial factor doctrine. The plurality found it more analytically sound to conceive of the injury as the lost chance. Id.

¶ 17 Though this court has not reconsidered or clarified the rule of Herskovits in the survival action context or, until now, considered whether the rule extends to medical malpractice cases where the ultimate harm is something short of death, the Herskovits majority's recognition of a cause of action in a survival action has remained intact since its adoption. "Washington recognizes loss of chance as a compensable interest." Shellenbarger v. Brigman, 101 Wash.App. 339, 348, 3 P.3d 211 (2000); see Zueger v. Pub. Hosp. Dist. No. 2, 57 Wash.App. 584, 591, 789 P.2d 326 (1990) (finding that the Herskovits "plurality represents the law on a loss of the chance of survival"); 16 DAVID K. DEWOLF & KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE § 4. 10, at 155-56, § 15.32, at 488 (3d ed. 2006) ("Washington courts recognize the doctrine of `loss of a chance' as an exception to a strict application of the but-for causation test in medical malpractice cases."). In Shellenbarger, the Court of Appeals reversed summary judgment of a medical malpractice claim of negligent 495 *495 failure to diagnose and treat lung disease from asbestos exposure in its early stages. 101 Wash.App. at 342, 3 P.3d 211. Expert witnesses testified that had Shellenbarger received nonnegligent testing and early diagnosis, which would have led to treatment, he would have "had a 20 percent chance that the disease's progress would have been slowed and, accordingly, he would have had a longer life expectancy." Id. at 348, 3 P.3d 211. The court concluded, "We find no meaningful difference between this and Herskovits' lost chance of survival." Id. at 349, 3 P.3d 211.

¶ 18 Washington courts have, however, generally declined to extend Herskovits to other negligence claims. See, e.g., Daugert v. Pappas, 104 Wash.2d 254, 260-62, 704 P.2d 600 (1985) (declining to apply Herskovits in a legal malpractice claim); Fabrique, 144 Wash.App. at 685, 183 P.3d 1118 (following Daugert and finding "no authority supporting the application of the `substantial factor' definition of proximate cause to a negligence or strict liability action involving a contaminated food product"); Sorenson v. Raymark Indus., Inc., 51 Wash.App. 954, 957, 756 P.2d 740 (1988) (distinguishing Herskovits from an asbestos exposure claim that the plaintiff's risk of cancer was increased). Such limitation is common: "[T]he courts that have accepted lost opportunity as cognizable harm have almost universally limited its recognition to medical-malpractice cases." RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 cmt. n at 356-57 (2010).

¶ 19 Herskovits has been widely cited as an authority by other state courts and in journal articles for recognizing a cause of action in lost chance cases. See, e.g., Matsuyama v. Birnbaum, 452 Mass. 1, 16, 890 N.E.2d 819 (2008); McMackin v. Johnson County Healthcare Ctr., 2003 WY 91, ¶¶ 16-17, 73 P.3d 1094, 1100, adhered to on reh'g, 2004 WY 44, 88 P.3d 491; Tory A. Weigand, Loss of Chance in Medical Malpractice: The Need for Caution, 87 Mass. L.Rev. 3, 9 (2002). Since Herskovits, the majority of states that have considered the lost chance doctrine have adopted it, although with varying rationales. Matsuyama, 452 Mass. at 10 n. 23, 890 N.E.2d 819 (listing 20 states and the District of Columbia that have recognized the lost chance doctrine); see Weigand, supra, at 7-10. Several states have rejected the doctrine. Matsuyama, 452 Mass. at 10 n. 23, 890 N.E.2d 819 (listing 10 states that have declined to adopt the doctrine). And others have not yet reviewed the issue or have declined to reach the question. Id.

¶ 20 The rationales underpinning the lost chance doctrine have generally been applied the same in wrongful death claims and medical malpractice claims where the ultimate harm is something short of death. See, e.g., Shellenbarger, 101 Wash.App. at 349, 3 P.3d 211. In Delaney v. Cade, 255 Kan. 199, 873 P.2d 175 (1994), the Kansas Supreme Court recognized a cause of action for loss of chance of a better outcome. The court observed that

many jurisdictions are like Kansas, in that the issue has only come up in a loss of survival case or a loss of a better recovery case....

We have found no authority or rational argument which would apply the loss of chance theory solely to survival actions or solely to loss of a better recovery actions and not to both.

Id. at 209-10, 873 P.2d 175. But cf. Weymers v. Khera, 454 Mich. 639, 653, 563 N.W.2d 647 (1997) ("we reject scrapping causation (the bedrock of our tort law) in negligence cases where the injury alleged by the plaintiff is something less than death").^[6] We find no persuasive rationale to distinguish Herskovits from a medical malpractice claim where the facts involve a loss of chance of avoiding or minimizing permanent disability rather than death. To limit Herskovits to cases that result in death is arbitrary; the same underlying principles of deterring negligence and compensating for injury apply when the ultimate harm is permanent disability.

496 *496 ¶ 21 We note that, significantly, nothing in the medical malpractice statute precludes a lost chance cause of action. In relevant part, chapter 7.70 RCW provides that, in order to prove "that injury resulted from the failure of the health care provider to follow the accepted standard of care," a plaintiff must establish:

(1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances;

(2) Such failure was a proximate cause of the injury complained of.

RCW 7.70.040. The chapter does not define "proximate cause" or "injury." RCW 7.70.020.

¶ 22 The principal arguments against recognizing a cause of action for loss of a chance of a better outcome are broad arguments, similar to those raised when Herskovits was decided: concerns of an overwhelming number of lawsuits and their impact on the health care system; distaste for contravening traditional tort law, especially regarding causation; discomfort with the reliance on scientific probabilities and uncertainties to value lost opportunities. See Joseph H. King, Jr., "Reduction of Likelihood" Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 U. MEM. L.REV. 491, 506 (1998); Matsuyama, 452 Mass. at 15, 890 N.E.2d 819 (noting criticisms of the doctrine, namely that it "upends the long-standing preponderance of the evidence standard; alters the burden of proof in favor of the plaintiff; undermines the uniformity and predictability central to tort litigation; results in an expansion of liability; and is too complex to administer") However, none of these arguments effectively distinguish the Mohrs' claim from Herskovits and seem instead to agitate for its overruling. Now nearly 30 years since Herskovits was decided, history assures us that Herskovits did not upend the world of torts in Washington, as demonstrated by the few cases relying on Herskovits that have been heard by Washington appellate courts.

¶ 23 We hold that Herskovits applies to lost chance claims where the ultimate harm is some serious injury short of death. We also formally adopt the reasoning of the Herskovits plurality. Under this formulation, a plaintiff bears the burden to prove duty, breach, and that such breach of duty proximately caused a loss of chance of a better outcome. This reasoning of the Herskovits plurality has largely withstood many of the concerns about the doctrine, particularly because it does not prescribe the specific manner of proving causation in lost chance cases. Rather, it relies on established tort theories of causation, without applying a particular causation test to all lost chance cases. Instead, the loss of a chance is the compensable injury.

¶ 24 The significant remaining concern about considering the loss of chance as the compensable injury, applying established tort causation, is whether the harm is too speculative. We do not find this concern to be dissuasive because the nature of tort law involves complex considerations of many experiences that are difficult to calculate or reduce to specific sums; yet juries and courts manage to do so. We agree that

[s]uch difficulties are not confined to loss of chance claims. A wide range of medical malpractice cases, as well as numerous other tort actions, are complex and involve actuarial or other probabilistic estimates.

Matsuyama, 452 Mass. at 18, 890 N.E.2d 819. Moreover, calculation of a loss of chance for a better outcome is based on expert testimony, which in turn is based on significant practical experience and "on data obtained and analyzed scientifically ... as part of the repertoire of diagnosis and treatment, as applied to the specific facts of the plaintiff's case." Id. at 17, 890 N.E.2d 819. Finally, discounting damages responds, to some degree, to this concern.

¶ 25 In Herskovits, both the lead and concurring opinions discussed limiting damages. 99 Wash.2d at 619, 664 P.2d 474 (Dore, J., lead opinion), 635 (Pearson, J., plurality opinion). This is a common approach in lost chance cases, responsive in part to the criticism of holding individuals or organizations 497 *497 liable on the basis of uncertain probabilities. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 cmt. n at 356 ("Rather than full damages for the adverse outcome, the plaintiff is only compensated for the lost opportunity. The lost opportunity may be thought of as the adverse outcome discounted by the difference between the ex ante probability of the outcome in light of the defendant's negligence and the probability of the outcome absent the defendant's negligence."). Treating the loss of a chance as the cognizable injury "permits plaintiffs to recover for the loss of an opportunity for a better outcome, an interest that we agree should be compensable, while providing for the proper valuation of such an interest." Lord v. Lovett, 146 N.H. 232, 236, 770 A.2d 1103 (2001). In particular, the Herskovits plurality adopted a proportional damages approach, holding that, if the loss was a 40 percent chance of survival, the plaintiff could recover only 40 percent of what would be compensable under the ultimate harm of death or disability (i.e., 40 percent of traditional tort recovery), such as lost earnings. Herskovits, 99 Wash.2d at 635, 664 P.2d 474 (Pearson, J., plurality opinion) (citing, King, supra, 90 YALE L.J. at 1382). This percentage of loss is a question of fact for the jury and will relate to the scientific measures available, likely as presented through experts. Where appropriate, it may otherwise be discounted for margins of error to further reflect the uncertainty of outcome even with a nonnegligent standard of care. See King, supra, 28 U. MEM. L.REV. at 554-57 ("conjunction principle").

¶ 26 We find that the Herskovits plurality has withstood the broad policy criticisms raised against it and comports with the medical malpractice statute. We find no meaningful basis to distinguish permanent disability from death for the purposes of raising a loss of chance claim. Accordingly, we hold that Herskovits applies to medical malpractice cases that result in harm short of death and formally adopt the rationale of the plurality opinion that the injury is the lost chance. For the reasons discussed next, as it relates to the facts of this case, we reverse the order of summary judgment.

2. Summary Judgment

¶ 27 An order granting summary judgment is reviewed de novo. Rivas v. Overlake Hosp. Med. Ctr., 164 Wash.2d 261, 266, 189 P.3d 753 (2008). Summary judgment "shall be rendered forthwith if ... there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." CR 56(c). We review the evidence in the light most favorable to the nonmoving party. Miller v. Jacoby, 145 Wash.2d 65, 71, 33 P.3d 68 (2001).

¶ 28 Interpreting the facts in the light most favorable to the Mohrs, they have made a prima facie case under the lost chance doctrine that, on August 31 and September 1, 2004, the respondents breached the recognized standard of care for treating a head trauma victim with Mrs. Mohr's symptoms and that their breaches caused Mrs. Mohr a diminished chance of a better outcome. The Mohrs presented the expert testimony of doctors Becker and Harris. Their testimony included opinions regarding breaches of the standard of care: that once given a narcotic, Mrs. Mohr should not have been discharged but observed overnight; that, had Mrs. Mohr been held overnight, her neurological deficits would have been earlier discovered to be a stroke; and that anticoagulants, antiplatelet agents, and general brain protective care reduce the damage caused by strokes. The expert testimony also included information regarding causation, including Dr. Becker's opinion that had Mrs. Mohr "received anti-thrombotic therapy there's at least a 50 to 60 percent chance that things could have had a better outcome.... Less disability, less neglect, less ... of the symptoms of right hemispheric stroke." CP at 225-26. Dr. Harris testified that had Mrs. Mohr received nonnegligent treatment at various points between August 31 and September 1, 2004, she would have had a 50 to 60 percent chance of a better outcome. This included the possibility, according to Dr. Harris, that Mrs. Mohr may have had no disability if she had been properly treated. We find, on this evidence, a prima facie showing of duty, 498 *498 breach, injury in the form of a lost chance, and causation.

¶ 29 Respondents also argue that the case cannot go forward because the Mohrs have not proved damages. This is a misconception of the requirements of medical malpractice tort law. See RCW 7.70.040. The Mohrs have made a prima facie case of injury: lost chance of a better outcome.

¶ 30 Finally, KMC separately asserts that the trial court's order of summary judgment in its favor should be affirmed because it is not vicariously liable for the negligence of the codefendant physicians.^[7] However, the Mohrs' and KMC's competing contentions regarding apparent agency and resulting vicarious liability present a question of fact that is not disposable on summary judgment as a matter of law. We therefore reverse the order of summary judgment as to KMC.

¶ 31 Under apparent authority, an agent (e.g., a doctor) binds a principal (e.g., a hospital) if objective manifestations of the principal "cause the one claiming apparent authority to actually, or subjectively, believe that the agent has authority to act for the principal" and such belief is objectively reasonable. King v. Riveland, 125 Wash.2d 500, 507, 886 P.2d 160 (1994). A finding of apparent agency can subject a hospital to vicarious liability for the negligence of contractor physicians or staff working at the hospital. See, e.g., Adamski v. Tacoma Gen. Hosp., 20 Wash.App. 98, 107-08, 579 P.2d 970 (1978).

¶ 32 KMC and the Mohrs dispute whether the Mohrs could and did reasonably believe that any of the codefendant physicians were employees or agents of KMC. The Mohrs signed a form that included the following language:

Patient care is under the control of the patient's attending physician who: is an independent provider and not an employee or agent of the hospital: May request other physicians to provide services during hospitalization (i.e. pathologists, anesthesiologists, radiologists).

CP at 107. Without considering the clarity of this language, we note that there are other relevant considerations, including: discharge instructions from the "[KMC] Emergency Department" that included information about treatment by Dr. Grantham at KMC; physician name tags that included KMC with the doctors' names; billing statements from KMC; and identification of Dr. Watson as a "`Hospitalist'" for KMC. Id. at 108, 268-70, 579 P.2d 970. It is also informative that KMC's emergency room is an essential part of its operation. See Adamski, 20 Wash.App. at 115, 579 P.2d 970.

¶ 33 In Adamski, the Court of Appeals considered several factors that it found relevant to the question of whether an independent-contractor physician was an apparent agent of the hospital. Id. at 115-16, 579 P.2d 970. It stated that "courts generally look to all of the facts and circumstances to determine if the hospital and doctor enjoy such a `significant relationship' that the rule of respondeat superior ought to apply." Id. at 108, 579 P.2d 970. Similarly, the published model jury instructions enumerate seven relevant factors for the determination of apparent agency in the hospital and independent-contractor physician context. 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 105.02.03 (5th ed. 2005). One factor is "[w]hether the hospital made any representations to the patient, verbally or in writing, regarding their relationship with the physician." Id. However, "no one of [the factors] is controlling." Id. Thus, the notice that the Mohrs received disclaiming an agency relationship between KMC and the treating physicians is but one factor to consider.

¶ 34 KMC argues that even if there is apparent agency, the hospital is not liable for negligent acts of physicians that it could not control. Cf. McLean v. St. Regis Paper Co., 6 Wash.App. 727, 729-30, 496 P.2d 571 (1972). However, the negligence alleged here concerns the provision of medical services and is well within the scope of the apparent agency relationship alleged between 499 *499 the physicians and KMC. As in Adamski, we find that a hospital may be, depending on the facts found by a jury, liable for the negligence of its contractor doctors, who are held out to be agents of the hospital. Accordingly, we reverse the order of summary judgment.

CONCLUSION

¶ 35 We hold that there is a cause of action in the medical malpractice context for the loss of a chance of a better outcome. A plaintiff making such a claim must prove duty, breach, and that there was an injury in the form of a loss of a chance caused by the breach of duty. To prove causation, a plaintiff would then rely on established tort causation doctrines permitted by law and the specific evidence of the case. Because the Mohrs made a prima facie case of the requisite elements of proof, we reverse the order of summary judgment and remand to the trial court for further proceedings.

WE CONCUR: CHARLES W. JOHNSON, TOM CHAMBERS, MARY E. FAIRHURST, DEBRA L. STEPHENS, and CHARLES K. WIGGINS, Justices.

MADSEN, C.J. (dissenting).

¶ 36 A central tenet of tort liability for medical malpractice is that a plaintiff must prove a physician's acts or omissions caused a patient's actual physical or mental injury before liability will attach. The lost chance doctrine adopted by the majority punishes physicians for negligent acts or omissions that cannot be shown to have caused any actual physical or mental harm. Because traditional tort justifications for imposing liability are missing, we should not extend a cause of action for a lost chance of a better outcome as a form of medical malpractice claim beyond its current application.

¶ 37 Black letter negligence law requires proof on a more probable than not basis that the injury was caused by the negligence of another. The majority holding rests on the fiction that the "injury" is actually the loss of a chance of a better outcome. This is semantic pretense. No matter how the cause of action is described, at the end of the day liability is based on no more than the mere possibility that the physician's negligence has caused harm, a result that conflicts with black letter law that "negligence in the air" is not actionable.

¶ 38 The majority claims that the tort principles of deterrence and compensation are served by adopting the doctrine. It is incorrect. Deterrence of negligence that does not cause actual harm is a meaningless proposition, and there can be no compensation of injury because the actual injury that occurs may be the result of the preexisting condition. Compensating plaintiffs for preexisting harm is not a legitimate goal of the tort system.

¶ 39 The majority's holding is also contrary to RCW 7.70.040. If the lost chance doctrine is to be accepted in this state, it should be through action of the legislature, which can consider the numerous public policy questions implicated by the doctrine that the majority never considers and, indeed, is not suitably in a position to consider.

¶ 40 The lost chance doctrine is also uniquely unfair because only the health care profession is exposed to liability under it. This court, like others, has refused to apply the basic doctrine against members of any other profession. If a lawyer is sued for malpractice, the plaintiff must prove proximate causation of real harm, but this is not true under the lost chance doctrine when a plaintiff sues a physician for negligent treatment that cannot be shown to have proximately caused real harm. The inequity is obvious.

Analysis

¶ 41 It is a fundamental principle that in a medical malpractice action the plaintiff must prove causation of the plaintiff's actual physical (or mental) injury before tort liability will be imposed. To avoid the difficulty posed by this requirement, the majority recognizes a cause of action for which the plaintiff does not have to prove that "but for" the physician's negligence, the injury would not have occurred. Majority at 493 (citing Herskovits v. Group Health Coop. of Puget Sound, 99 Wash.2d 609, 619, 664 P.2d 474 (1983) (Dore, 500 *500 J., lead opinion); id. at 634-35, 664 P.2d 474 (Pearson, J., plurality)). That is, because the majority finds the traditional causation-of-injury requirement to be an insurmountable obstacle, it employs a different concept to anchor a lost chance claim. Majority at 496. The majority simply redefines the injury as the lost chance. With this semantic leap — essentially a fiction — the causation problem is fixed.

¶ 42 But in reality the problem remains. No matter how the lost chance cause of action is characterized, the plaintiff is freed of the requirement of proving causation because, no matter how the action is described, the end result is that liability is imposed based on possibilities and not on probabilities. See, e.g., Jones v. Owings, 318 S.C. 72, 77, 456 S.E.2d 371 (1995) ("[l]egal responsibility in this approach is in reality assigned based on the mere possibility that a tortfeasor's negligence was a cause of the ultimate harm"); Pillsbury-Flood v. Portsmouth Hosp., 128 N.H. 299, 305, 512 A.2d 1126 (1986) (rejecting plaintiff's reliance on the "loss of a chance" doctrine expressed in Hicks v. United States, 368 F.2d 626 (4th Cir.1966); the Hicks rule that allows relaxation of the causation requirement where the defendant increased the risk of harm is ill advised; "[c]ausation is a matter of probability, not possibility").

¶ 43 The lost chance doctrine contravenes the long-standing rule that a verdict in a medical malpractice action must not rest on "`conjecture and speculation.'" Douglas v. Bussabarger, 73 Wash.2d 476, 505, 438 P.2d 829 (1968) (internal quotation marks omitted) (quoting Glazer v. Adams, 64 Wash.2d 144, 148, 391 P.2d 195 (1964)). A "`possibility'" is not enough. Id.

¶ 44 Trying to skirt this obstacle by saying that "a plaintiff would still have to establish the loss of chance by a preponderance of the evidence," as the plaintiff argued in Crosby v. United States, 48 F.Supp.2d 924, 931 (D.Alaska 1999), is not an acceptable excuse because it leads to unacceptable results. As the court in Crosby correctly responded, "[i]f a plaintiff's chance of recovery was reduced from 20 percent to 10 percent, then permitting recovery for that 10 percent loss enables a plaintiff to recover damages even when the plaintiff's actual physical injury was not more likely than not caused by a defendant's alleged negligence." Id. (emphasis added).

¶ 45 The majority tries to justify the lost chance doctrine on the ground that it serves the tort principles of deterring negligence and compensating for injury when "the ultimate harm is permanent disability." Majority at 495. But as the majority itself explains, these justifications rest on actual physical harm to the plaintiff, "permanent disability" in the majority's own words. But a chance of a better outcome, by definition, is not the same as an actual better outcome because there is no way to establish that any physical harm in fact resulted from the negligent act or omission of the physician. Not only does the doctrine not require proof of "but for" causation, "but for" causation cannot be proved in any event.

¶ 46 The "deterrence" justification identified by the majority is in fact unrelated to preventing harm-causing negligence. As Benjamin Cardozo famously explained long ago, "`negligence in the air'" is not actionable.^[1] Physicians, and indeed individuals involved in thousands of actions, are negligent every day without legal consequence because, despite the involvement or presence of others, their acts do not actually cause harm to the other persons.

¶ 47 The Texas Supreme Court aptly observed, when it "reject[ed] the notion that the enhanced deterrence of the loss of chance approach might be so valuable as to justify scrapping [the] traditional concepts of causation," that "[i]f deterrence were the sole value to be served by tort law, we could dispense with the notion of causation altogether and award damages on the basis of negligence alone." Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 406 (Tex.1993) (emphasis added). By rejecting the traditional causation in favor of the possible deterrent effect of the lost chance doctrine, the majority imposes 501 *501 liability for damages based on negligence alone — "negligence in the air."

¶ 48 Moreover, the goal of compensation is not served, either, because there is no way to prove a physician's acts or omissions in fact caused the actual physical harm, rather than the actual harm resulting from the preexisting condition. In fact, under this theory of liability, plaintiffs may be compensated where they suffer absolutely no physical injury as a result of the physician's conduct. Indeed, the Maryland high court has determined that the lost chance doctrine does not result in accurate compensation for any plaintiff's injuries (when the lost chance is less than 50 percent). Fennell v. S. Maryland Hosp. Ctr., Inc., 320 Md. 776, 789-90, 580 A.2d 206 (1990).^[2]

¶ 49 Of perhaps greater importance, in a practical sense, the lost chance doctrine does not conform to RCW 7.70.040. Under this statute, a plaintiff in a medical malpractice action must prove:

(1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances;

(2) Such failure was a proximate cause of the injury complained of.

RCW 7.70.040.^[3] Expert testimony is generally required to establish the standard of care and causation. Putman v. Wenatchee Valley Med. Ctr., 166 Wash.2d 974, 988, 216 P.3d 374 (2009); Berger v. Sonneland, 144 Wash.2d 91, 110-11, 26 P.3d 257 (2001); Harris v. Robert C. Groth, M.D., Inc., 99 Wash.2d 438, 449, 663 P.2d 113 (1983). To remove the issue of cause in fact "from the realm of speculation, the medical testimony must at least be sufficiently definite to establish that the act complained of `probably' or `more likely than not' caused the subsequent disability." O'Donoghue v. Riggs, 73 Wash.2d 814, 824, 440 P.2d 823 (1968) (quoting Ugolini v. States Marine Lines, 71 Wash.2d 404, 407, 429 P.2d 213 (1967)).

¶ 50 The statute provides that a plaintiff must prove the health care provider failed to exercise the requisite degree "of care, skill, and learning" and this failure "was a proximate cause of the injury complained of." RCW 7.70.040. "Injury" in the statute undoubtedly reflects prevailing law stated in O'Donoghue, 73 Wash.2d at 824, 440 P.2d 823, that the failure to exercise the required degree of care must be a proximate cause of "the subsequent disability." In other words, the legislature meant an actual physical disability resulting from the failure to exercise proper care, not an amorphous "lost chance" that may well involve no actual disability at all.

¶ 51 In considering the comparable Alaska statute, which like ours requires a plaintiff to prove the health care provider failed to exercise the proper standard of care and as a "proximate result of this" failure "the plaintiff suffered injuries that would not otherwise 502 *502 have been incurred," Alaska Stat. § 09.55.540(a)(3), the federal court in Crosby, 48 F.Supp.2d at 931, concluded that "the `loss of chance' theory disrupts traditional causation principles set forth by statute." The court said "AS 09.55.540 clearly and unambiguously requires plaintiffs to establish that a defendant's alleged negligence was more likely than not the cause of injury." Id. The federal court aptly said that, "[t]he statute rejects any presumption of negligence." Id. The court concluded that "[r]ecognizing a `loss of chance' theory under the circumstances of this case would enable plaintiff to recover even when her injury was not proximately caused by the defendant" and contravene the statute. Id.

¶ 52 Similarly, the Vermont Supreme Court reached the same conclusion in connection with its comparable state statute, observing that the statutory elements traditionally required that plaintiff produce evidence of a "`reasonable probability or reasonable degree of medical certainty' that the defendant's conduct caused the injury." Smith v. Parrott, 2003 VT 64, 175 Vt. 375, 380, 833 A.2d 843 (2003) (quoting Greene v. Bell, 171 Vt. 280, 285, 762 A.2d 865 (2000)). The court said that the "loss of chance theory of recovery is thus fundamentally at odds with the settled common law" codified in the statute. Id.

¶ 53 The same is true in Washington. Our statute setting out the elements that a plaintiff must prove in a medical malpractice action does not permit a presumption of negligence. It requires proof of proximate cause, not as to a chance of malpractice resulting in possible injury, but as to actual physical injury to the plaintiff.

¶ 54 If there is to be any change in this law, it should come from the legislature, after appropriate hearings, collection of data, and consideration of competing interests. Only the legislature has the authority to amend the statute.

¶ 55 Moreover, the legislature is best positioned to consider the myriad of public policy matters implicated by the lost chance doctrine. Among them are concerns about the potential impact on the practice of medicine, the costs of medical malpractice insurance, the costs of medical care, and the costs to society as a whole of compensating an entirely new class of plaintiffs who formerly had no claim under the common law. See Smith, 175 Vt. at 381, 833 A.2d 843; Fennell, 320 Md. at 792-95, 580 A.2d 206. As one court mentioned, "society is wallowing near the water line with the burdensome and astronomical economic costs of universal healthcare and medical services." Kemper v. Gordon, 272 S.W.3d 146, 152 (Ky.2008). Malpractice insurance costs are rising and are a part of this financial burden. Id. At the same time, medical science and technology are advancing at a phenomenal pace and our expectations based upon these advancements rise as they advance. Id. But humans must still effectuate the advances, and there are no guarantees notwithstanding our expectations.

¶ 56 The lost chance doctrine also gives rise to other questions. "For instance, what is a `late diagnosis'? Does a diagnosis missed this week, but made next week, rise to the level of diminished chance?" Id. What about a case where experts could present "evidence ... that an MRI misread on Monday, but accurately discerned on Friday, perhaps gives rise to an infinitesimal loss of a chance to recover. Yet, under this doctrine, even a small percentage of the value of human life could generate substantial recovery and place burdensome costs on healthcare providers" that would ultimately be passed on to each person in the jurisdiction. Id.

¶ 57 What about in the very case before this court, where we are not considering the passage of weeks, or even days, but of hours?

¶ 58 In addition, even courts rejecting the doctrine have noted "`appealing'" arguments exist in favor of the lost chance doctrine, e.g., id. (quoting Smith, 175 Vt. at 381, 833 A.2d 843), and these, too, should be considered by the legislature.

¶ 59 The ramifications of the majority's opinion are unknown but potentially far-reaching. The majority opinion has the potential to alter health care in this state, as physicians would have to contemplate whether to provide an unprecedented level of care to avoid liability for even a slightly diminished 503 *503 chance of a better outcome. As noted, even a small percentage of chance can equal a substantial award. At the same time, it is no secret that health care insurance coverage is already strained, for those who even have such insurance, and adopting this doctrine cannot help but impact the nature and extent of insurance reimbursement for potential tests and treatments ordered as an eventual result of the majority's decision to expand liability to an unprecedented degree in this state.

¶ 60 All of these matters are public policy considerations for the legislature.

¶ 61 Another issue is the inequity of applying the lost chance doctrine in the medical field. As in other states, this court has declined to extend the lost chance of survival doctrine, the specific form set out in Herskovits, to permit suits against other professionals. See Daugert v. Pappas, 104 Wash.2d 254, 704 P.2d 600 (1985) (refusing to extend lost chance doctrine to legal malpractice actions). Courts have questioned the inconsistent application of the doctrine depending upon whether the action is for medical malpractice or other professional malpractice. Smith, 175 Vt. at 381, 833 A.2d 843; Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1019-20 (Fla.1984) ("[h]ealth care providers could find themselves defending cases simply because a patient fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result" while "[n]o other professional malpractice defendant carries this burden of liability without the requirement that plaintiffs prove the alleged negligence probably rather than possibly caused the injury").

¶ 62 This basic inequity weighs against extension of the doctrine, yet the majority never considers it. In fact, the majority declines to fully consider any of the many reasons why the doctrine should not be accepted. Instead, the majority says that they simply mirror concerns addressed in Herskovits, that Herskovits has not caused any problems, and for the same reasons favoring Herskovits, the lost chance doctrine should be adopted where the ultimate harm is injury short of death.^[4]

¶ 63 I do not share the majority's view that Herskovits has caused no serious harm and therefore it is unlikely that the majority's present opinion will. Nor do I agree that because the majority can find no reason to distinguish the rationale for the decision in Herskovits, this court's hands are essentially tied and we must reach a similar conclusion here.

¶ 64 First, we have no idea what the impact of Herskovits has been. We do not know how often the case is followed, how often actions brought under it have been settled, or what cases were decided but not appealed. Second, whatever the effect of Herskovits, it is impossible to conclude that effects of the present case will be comparable. If nothing else, the added burdens to society presented by this case will be cumulative to any produced by Herskovits. But in any event, and regardless of Herskovits, we are simply not in a position to casually conclude that there will be little discernible negative impact. We simply do not know, and the court does not represent the branch of government with the capability of weighing all of the policy arguments and other considerations that should be weighed.

¶ 65 Rather than assume that the issue before us is essentially already determined, as the majority does, this case presents issues and concerns that should be carefully examined before extending the lost chance doctrine and effecting such a sweeping change in the law. The court should not just apply Herskovits to injury short of death, but should instead take the opportunity to examine the issue much more closely.^[5] At the end 504 *504 of the examination, the court's conclusion should be that extending the lost chance doctrine is incompatible with RCW 7.70.040^[6] and that whether the doctrine should be adopted is a question that must be decided by the legislature.

¶ 66 Given that the decision whether to extend the lost chance doctrine should belong to the legislature, it is my hope that the legislature will examine this issue. If the legislature concludes that the doctrine should become a part of our state law, then it will be doing so as a duly informed representative body. If not, or if the legislature determines that a different version of the doctrine should be adopted, the legislature can effectively abrogate the majority's holding by amending RCW 7.70.040.^[7]

¶ 67 For the reasons stated in this opinion, I dissent.

J.M. JOHNSON, J. (dissenting).

¶ 68 The majority improperly extends Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash.2d 609, 664 P.2d 474 (1983) to create a cause of action for Mrs. Linda Mohr and her husband against the emergency professionals and hospital that provided for her care after she crashed her own car. These medical professionals did not proximately cause the ultimate, sad injury Mrs. Mohr suffered — namely, a distal dissection of her right internal carotid artery and loss of brain tissue. Proximate cause is a required element under Washington's liability law (RCW 7.70.040). Because the majority creates a speculative cause of action that is beyond the express legislative mandate of RCW 7.70.040, I dissent.

FACTS

¶ 69 Mrs. Mohr crashed her car into a utility pole at approximately 45 miles per hour after running into four other vehicles during an accident in which she was driving alone. The Richland Fire Department responded. Mrs. Mohr was treated by emergency medical personnel (EMPs) and brought by ambulance^[1] to the emergency room at Kadlec Medical Center (KMC) at 3:44 p.m. on August 31, 2004.

¶ 70 Mrs. Mohr was seen in the emergency room by Dr. Dale Grantham. Dr. Grantham and nursing staff noted that Mrs. Mohr had suffered injuries to her head, face, mouth, right forearm, and left leg due to the accident. 505 *505 Dr. Grantham and nursing staff also noted that Mrs. Mohr suffered from diabetes, that her blood sugar was low upon rescue by the EMPs at the crash site, and that she had not been ambulatory at the scene of the accident.

¶ 71 Dr. Grantham performed a physical exam. During the exam, Mrs. Mohr did not report or demonstrate any acute distress, swelling of the head, numbness, or neck pain. She did not exhibit any motor or sensory deficits. Dr. Grantham ordered blood samples, a finger stick glucose sample, and had Mrs. Mohr taken for x-rays. He also ordered a computerized tomography (CT) scan of her head. The x-rays and CT scan came back normal; they did not show any broken bones, fractures, dislocations, or intracranial injury.

¶ 72 Mrs. Mohr suffered lacerations to her right eyelid and right hand as a result of her accident. Dr. Grantham sutured these lacerations at 6:36 p.m. He also fed her at this time and noted that she was alert and able to walk to the bathroom, albeit "slightly wobbly on foot." Clerk's Papers (CP) at 91, 94. Another finger stick glucose sample was taken, and a nurse applied antibacterial ointment and dressed Mrs. Mohr's leg wound.

¶ 73 Dr. Grantham returned at 7:56 p.m. to speak with Mrs. Mohr and her husband. She reported a pain level of "7" on a scale of 1 to 10. Dr. Grantham prescribed Darvocet, a pain medication, and warned Mr. and Mrs. Mohr about its sedative effect. Dr. Grantham noted that Mrs. Mohr was in "good condition, stable condition and improved condition." Id. at 94. The doctor proceeded to give Mrs. Mohr and her husband discharge instructions, telling them to return or contact their physician immediately if her condition worsened or changed unexpectedly, if she did not improve, or if other problems arose. The Mohrs left for their home at 8:20 p.m.

¶ 74 At 6:32 a.m. the following morning, Mr. Mohr called the Richland Fire Department. Mrs. Mohr was experiencing weakness, a lack of coordination, and nausea. The fire department transported Mrs. Mohr to the emergency room at the same hospital (KMC). She was admitted at 7:11 a.m.

¶ 75 Mrs. Mohr was seen by Dr. Brian Dawson at 7:16 a.m. She reported weakness and difficulty walking, but no numbness or tingling.^[2] Dr. Dawson was aware of Mrs. Mohr's history and performed a physical exam. Dr. Dawson noted that she was somnolent (drowsy), had normal speech, and had weakness on her left side. He ordered a CT scan, which was performed between 8:10 a.m. and 8:19 a.m.

¶ 76 The results of this CT scan, which came back before 9:30 a.m., were not normal. Instead, it revealed findings that the radiologist thought "may be secondary to evolving infarct which is in the right middle cerebral artery territory."^[3] The radiologist recommended a magnetic reasoning imaging (MRI) examination. Mrs. Mohr was transported to receive the MRI at 9:30 a.m.

¶ 77 The results of the MRI, which came in by 10:32 a.m., led to the discovery of a dissected right internal carotid artery. Dr. Dawson discussed the situation with Dr. Brooks Watson II, and they agreed upon a treatment plan. Mrs. Mohr was transferred to the intermediate care unit at 11:46 a.m., and Dr. Watson prescribed aspirin around 2:00 p.m.

¶ 78 An urgent ultrasound was performed to rule out carotid dissection in the common carotids, but that procedure could not assess the distal internal carotid artery. For this, a CT angiogram was ordered. The CT angiogram was performed at 2:30 p.m. and confirmed that Mrs. Mohr had a distal dissection of the right internal carotid artery. The 506 *506 findings were discussed with Dr. Watson at 4:50 p.m.

¶ 79 Dr. Watson discussed the situation with Harborview Medical Center after trying to attempt "neurosurgical input locally."^[4] He connected with Dr. Jerry Jurkovitz of Harborview, who agreed to accept Mrs. Mohr and to assume care. It was arranged for Mrs. Mohr to be "life-flighted" to Harborview Medical Center. Dr. Watson ordered intravenous heparin (an anticoagulant) for stabilization. However, he did not administer that drug because her physician sons and the neurosurgeons at Harborview requested that medication be withheld. The doctors at Harborview were not, however, opposed to Dr. Watson's providing aspirin therapy. Aspirin was administered to Mrs. Mohr that evening by a nurse, at the direction of Mrs. Mohr's sons. Some time afterward, Mrs. Mohr was transported to Harborview, where various doctors provided her care.^[5]

¶ 80 One of Mrs. Mohr's sons, a fifth-year resident in diagnostic radiology at the University of Washington, testified at deposition that Mrs. Mohr had lost between one-quarter and one-third of her brain tissue in the period following the accident on August 31, 2004.^[6] The record does not indicate the numerous patients Drs. Grantham, Dawson and Watson cared for in the emergency room during the time period in question, nor does it detail events after Mrs. Mohr was taken to Harborview.

ANALYSIS

¶ 81 This case boils down to statutory interpretation. Because RCW 7.70.040 does not provide the cause of action the majority creates, its analysis and result are incorrect. Our legislature has simply not required the impossible of medical caregivers: to guarantee the best possible outcome for patients they help.

A. Standard of Review

¶ 82 Statutory interpretation is a question of law that this court reviews de novo. Berger v. Sonneland, 144 Wash.2d 91, 104-05, 26 P.3d 257 (2001); cf. majority at 493 (citing Berger, 144 Wash.2d at 103, 26 P.3d 257). If a statute is plain and unambiguous, its meaning must be derived from the wording of the statute itself. Berger, 144 Wash.2d at 105, 26 P.3d 257. Plain words do not require construction. Id. Instead, courts assume the legislature means exactly what it says. Id. Courts should not force a given construction by imagining a variety of alternative interpretations. See id. (quoting W. Telepage, Inc. v. Dep't of Financing, 140 Wash.2d 599, 608, 998 P.2d 884 (2000)).

B. Respondents Are Entitled to Judgment as a Matter of Law: the Mohrs Have Not Established the Statutorily Required Element of Proximate Cause

¶ 83 The language of RCW 7.70.040 is plain and unambiguous. With respect to the issue raised in this motion for summary judgment, the health care provider's alleged failure to exercise the acceptable standard of care must be a "proximate cause of the injury complained of" before that health care provider may be subject to liability under chapter 7.70 RCW. Proximate cause is a necessary element of proof. RCW 7.70.040.

¶ 84 A "proximate cause" of an injury is defined as a cause that, in a direct sequence, unbroken by any new, independent cause, produces the injury complained of and without which the injury would not have occurred. Stoneman v. Wick Constr. Co., 55 Wash.2d 639, 643, 349 P.2d 215 (1960). To establish proximate cause, the plaintiff must show both "cause in fact" (that the injury would not have occurred but for the act in question) and "legal causation." Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wash.2d 747, 753, 818 P.2d 1337 (1991). "Legal causation" depends on considerations of "`logic, common sense, justice, policy, and precedent.'" King v. City of Seattle, 84 Wash.2d 239, 250, 525 P.2d 228 (1974) (quoting 1 THOMAS ATKINS STREET, THE FOUNDATION 507 *507 OF LEGAL LIABILITY 110 (1906)). It involves the "determination of whether liability should attach as a matter of law given the existence of cause in fact." Hartley v. State, 103 Wash.2d 768, 779, 698 P.2d 77 (1985).

¶ 85 The injury complained of in this case is the distal dissection of Mrs. Mohr's right internal carotid artery, which led to a loss of brain tissue. The appellants offer no evidence or testimony, however, that Drs. Grantham, Dawson or Watson caused this injury. They have not established cause in fact. Consequently, the appellants have not made a showing sufficient to establish the existence of an element essential to their case, and on which they will bear the burden of proof at trial: proximate cause. See Young v. Key Pharm., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Thus, there can be no "genuine issue as to any material fact," and the respondents are entitled to a "judgment as a matter of law." CR 56(c); Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

CONCLUSION

¶ 86 We should affirm the trial court and answer the question certified to us in the negative. The nonbinding plurality opinion in Herskovits should not be extended to rewrite the medical malpractice statutory scheme adopted by the legislature. Our application of the separation of powers doctrine is not a one-way street.

¶ 87 Recovery on the basis of "a lost chance of a better outcome" from these targeted medical care providers is highly speculative and places an impossible burden on doctors and hospitals.^[7] Order of Certification at 1. This is not a compensable injury under Washington law. I dissent.

I CONCUR: GERRY L. ALEXANDER, Justice.

[1] The Mohrs also allege that Mrs. Mohr reported some numbness but that it was not recorded until the following day, when the hospital records indicate that "some numbness in her left hand ... has persisted." Clerk's Papers (CP) at 122.

[2] An "infarct" is "an area of coagulation necrosis in a tissue ... resulting from obstruction of the local circulation by a thrombus [(blood clot)] or embolus [(foreign particle circulating in the blood)]." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1157 (2002). A known cause of strokes is "formation of an embolus or thrombus that occludes an artery." TABER'S CYCLOPEDIC MEDICAL DICTIONARY 1847 (18th ed. 1997).

[3] Mrs. Mohr's medical records indicate that the "MRI ... revealed a right frontoparietal CVA." CP at 123. "CVA" is an abbreviation for a "cerebrovascular accident," also known as a stroke. Taber's, supra, at 350.

[4] To answer the question of whether there is a cause of action for a loss of a chance of a better outcome, we focus on the injury and proximate cause elements. At the outset, however, we note that, in order to prevail in a medical malpractice claim, a plaintiff still also bears the exacting burden to prove that a health care provider breached the standard of care.

[5] While recognizing the lost chance doctrine, the most recent Restatement asserts that the reliance by many courts on § 323 of the Restatement (Second) as support for the doctrine is misplaced. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 cmt. n (2010). The reporter's note explains that § 323 addressed affirmative duties, not causation or the nature of injury.

[6] The Restatement characterizes the Weymers holding as "without any good explanation." RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 Reporter's Note cmt. n at 375.

[7] This court may sustain a trial court ruling on any correct ground. Nast v. Michels, 107 Wash.2d 300, 308, 730 P.2d 54 (1986).

[1] Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 341, 162 N.E. 99 (1928) (quoting FREDERICK POLLOCK, THE LAW OF TORTS 455 (5th ed. 1920)).

[2] In Fennell, 320 Md. at 789, 580 A.2d 206, the court, noting that loss of chance recovery is based on statistical probabilities, examined "the statistical probabilities of achieving a `just' result with loss of chance damages." Drawing from Stephen F. Brennwald, Comment, Proving Causation in "Loss of a Chance" Cases: A Proportional Approach, 34 CATH. U.L.REV. 747, 779 n. 254 (1985), the Maryland court described a hypothetical example involving 99 cancer patients, each with a 1/3 chance of survival (the example can also be applied to facts involving a chance of a better outcome, rather than survival), each of whom received negligent treatment, and all of whom died. Fennell, 320 Md. at 789, 580 A.2d 206.

Statistically, if all had received proper treatment, 33 would have lived and 66 would have died. Id. Under the lost chance doctrine, all would be permitted recovery of 33 1/3 percent of the normal value of the case. Id. at 789-90, 580 A.2d 206. However, the 33 who would have survived with proper care would be compensated by only 33 1/3 percent of the appropriate damages for the actual injury, i.e., a recovery one-third that which would be necessary to compensate for the actual harm. Id. In the other 66 cases, where the decedents died as a result of the preexisting cancer and not as a result of the negligence, the patients would be overcompensated for actual injury to the extent of the entire one-third recovery. Id.

The result, the Maryland court said, is that the lost chance doctrine results in errors in compensation for actual injury in all 99 cases. Id.

[3] The statute was amended in 2011 to be gender neutral. Laws of 2011, ch. 336, § 251. The substantive provisions were not changed.

[4] Curiously, the majority couches this at one point in its opinion as "some serious injury short of death." Majority at 496. Whatever this means, it is not explained or supported by any analysis in the opinion. If it means that the doctrine is to apply where "serious" versus "something less serious" harm actually results, even more questions arise.

[5] The majority effectively treats Herskovits as binding precedent because although a six-member majority of the court disagreed on how the lost chance doctrine should be applied in a case where death ensued, it agreed that the doctrine should be adopted. Majority at 493. More than a minor disagreement in Herskovits is involved, however. The two-member lead opinion in Herskovits would alter the standard of proof. The four-member plurality would alter the characterization of the harm. The two positions were not and are not the same. A plaintiff meeting the lower standard of causation would not necessarily satisfy the "more probable than not" standard adhered to in the plurality. Rather, a plaintiff could prevail by introducing evidence that a physician's conduct increased the risk of harm and the harm in fact was sustained, with the jury then taking a permissible step from increased harm to causation and the conclusion that increased risk was a substantial factor in bringing about the resultant injury (death). See Herskovits, 99 Wash.2d at 615-17, 664 P.2d 474 (Dore, J., lead opinion). To prevail under the plurality's theory, the plaintiff could establish a prima facie issue of proximate causation only if the plaintiff produced evidence that the defendant probably caused a substantial reduction in the decedent's chance of survival. Id. at 634-35, 664 P.2d 474 (Pearson, J., plurality).

[6] This statute was not considered in Herskovits.

[7] The South Dakota legislature expressly abrogated the state supreme court's adoption of the lost chance doctrine. South Dakota Codified Laws § 20-9-1.1 provides:

The Legislature finds that in those actions founded upon an alleged want of ordinary care or skill the conduct of the responsible party must be shown to have been the proximate cause of the injury complained of. The Legislature also finds that the application of the so called loss of chance doctrine in such cases improperly alters or eliminates the requirement of proximate causation. Therefore, the rule in Jorgenson v. Vener, 2000 SD 87, 616 N.W.2d 366 (2000) is hereby abrogated.

Similarly, the Michigan legislature effectively rescinded Falcon v. Memorial Hospital, 436 Mich. 443, 462 N.W.2d 44 (1990), when it enacted Michigan Compiled Laws § 600.2912a(2), which provides:

In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.

[1] Mrs. Mohr has not sued the Richland Fire Department, ambulance, or the EMPs.

[2] Mrs. Mohr did not report numbness in her left hand to a medical professional until she was seen by Dr. Brooks Watson II, the third doctor to attend her, at approximately 2:00 p.m. on September 1, 2004. CP at 122.

[3] CP at 119. An "infarct" is an area of coagulation necrosis in tissue resulting from obstruction of the local circulation by a thrombus (blood clot) or embolus (foreign particle circulating in the blood). WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1157 (2002). An infarct is not, however, the medical equivalent of a "stroke." It is thus inaccurate to state that Mrs. Mohr was diagnosed as having a stroke at that point in time. Cf. majority at 492.

[4] CP at 329.

[5] Mrs. Mohr has not sued Harborview or the doctors at Harborview.

[6] See CP at 183.

[7] As noted above, neither the Richland Fire Department, the ambulance, the EMPs, Harborview, nor the doctors at Harborview were sued in this case.

4.4.1.3 Joint and Several Liability 4.4.1.3 Joint and Several Liability

4.4.1.3.1 Summers v. Tice ("The Mystery Shooter Crossfire Case") 4.4.1.3.1 Summers v. Tice ("The Mystery Shooter Crossfire Case")

What is this court saying? Is offering a rule about causation, or a rule about the burden of proving causation? What's the difference between them?

[L. A. Nos. 20650, 20651.

In Bank.

Nov. 17, 1948.]

CHARLES A. SUMMERS, Respondent, v. HAROLD W. TICE et al., Appellants.

*82Gale & Purciel, Joseph D. Taylor and Wm. A. Wittman for Appellants.

Werner O. Graf for Respondent.

CARTER, J.

Each of the two defendants appeals from a judgment against them in an action for personal injuries. Pursuant to stipulation the appeals have been consolidated.

Plaintiff’s action was against both defendants for an injury to his right eye and face as the result of being struck by bird shot discharged from a shotgun. The case was. tried by the court without a jury and the court found that on November 20, 1945, plaintiff and the two defendants were hunting quail on the open range. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7% size shot. Prior to going hunting plaintiff discussed the hunting procedure with defendants, indicating that they were to exercise care when shooting and to “keep in line.” In the course of hunting plaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. The view of defendants with reference to plaintiff was unobstructed and they knew his location. Defendant Tice flushed a quail which rose in flight to a 10-foot elevation and flew between plaintiff and defendants. Both defendants shot at the quail, shooting in plaintiff’s direction. At that time defendants were 75 yards from plaintiff. One shot struck plaintiff in his eye and another in his upper lip. Finally it was found by the court that as *83the direct result of the shooting by defendants the shots struck plaintiff as above mentioned and that defendants were negligent in so shooting and plaintiff was not contributorily negligent.

First, on the subject of negligence, defendant Simon-son contends that the evidence is insufficient to sustain the finding on that score, but he does not point out wherein it is lacking. There is evidence that both defendants, at about the same time or one immediately after the other, shot at a quail and in so doing shot toward plaintiff who was uphill from them, and that they knew his location. That is sufficient from which the trial court could conclude that they acted with respect to plaintiff other than as persons of ordinary prudence. The issue was one of fact for the trial court. (See, Rudd v. Byrnes, 156 Cal. 636 [105 P. 957, 20 Ann.Cas. 124, 26 L.R.A. N.S.134].)

Defendant Tice states in his opening brief, “we have decided not to argue the insufficiency of negligence on the part of defendant Tice.” It is true he states in his answer to plaintiff’s petition for a hearing in this court that he did not concede this point but he does not argue it. Nothing more need be said on the subject.

Defendant Simonson urges that plaintiff was guilty of contributory negligence and assumed the risk as a matter of law. He cites no authority for the proposition that by going on a hunting party the various hunters assume the risk of negligence on the part of their companions. Such a tenet is not reasonable. It is true that plaintiff suggested that they all “stay in line,” presumably abreast, while hunting, and he went uphill at somewhat of a right angle to the hunting line, but he also cautioned that they use care, and defendants knew plaintiff’s position. We hold, therefore, that the trial court was justified in finding that he did not assume the risk or act other than as a person of ordinary prudence under the circumstances. (See, Anthony v. Hobbie, 25 Cal.2d 814, 818 [155 P.2d 826] ; Rudd v. Byrnes, supra.) None of the cases cited by Simonson are in point.

The problem presented in this case is whether the judgment against both defendants may stand. It is argued by defendants that they are not joint tort feasors, and thus jointly and severally liable, as they were not acting in concert, and that there is not sufficient evidence to show which defendant was guilty of the negligence which caused the injuries—the shooting by Tice or that by Simonson. Tice argues that there is *84evidence to show that the shot which struck plaintiff came from Simonson’s gun because of admissions allegedly made by him to third persons and no evidence that they came from his gun. Further in connection with the latter contention, the court failed to find on plaintiff’s allegation in his complaint that he did not know which one was at fault—did not find which defendant was guilty of the negligence which caused the injuries to plaintiff.

Considering the last argument first, we believe it is clear that the court sufficiently found on the issue that defendants were jointly liable and that thus the negligence of both was the cause of the injury or to that legal effect. It found that both defendants were negligent and “That as a direct and proximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did lodge in plaintiff’s right eye and that another birdshot pellet was caused to and did lodge in plaintiff’s upper lip.” In so doing the court evidently did not give credence to the admissions of Simonson to third persons that he fired the shots, which it was justified in doing. It thus determined that the negligence of both defendants was the legal cause of the injury—or that both were responsible. Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them. The one shot that entered plaintiff’s eye was the major factor in assessing damages and that shot could not have come from the gun of both defendants. It was from one or the other only.

It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the- injury suffered by the third person, although the negligence of only one of them could have caused the injury. (Moore v. Foster, 182 Miss. 15 [180 So. 73]; Oliver v. Miles, 144 Miss. 852 [110 So. 666; 50 A.L.R. 357]; Reyher v. Mayne, 90 Colo. 586 [10 P.2d 1109]; Benson v. Ross, 143 Mich. 452 [106 N.W. 1120, 114 Am.St.Rep. 675].) The same rule has been applied in criminal cases (State v. Newberg, 129 Ore. 564 [278 P. 568, 63 A.L.R. 1225]), and both drivers have been held liable for the negligence of one where they engaged in a racing contest causing an injury to d third person (Saisa v. Lilja, 76 F.2d 380). These cases speak of the action of defendants as being in concert as the ground *85if decision, yet it would seem they are straining that concept and the more reasonable basis appears in Oliver v. Miles, supra. There two persons were hunting together. Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was travelling on it. The court stated they were acting in concert and thus both were liable. The court then stated: “ We think that . . . each is liable for the resulting injury to the boy, although no one can say definitely who actually shot him. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence.” [Emphasis added.] (P. 668 [110 So.'].) It is said in the Restatement: “For harm resulting to a third person from the tortious conduct of another, a person is liable if he . . . (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.” (Rest., Torts, § 876(b) (c).) Under subsection (b) the example is given: “A and B are members of a hunting party. Each of them in the presence of the other shoots across a public road at an animal, this being negligent as to persons on the road. A hits the animal. B’s bullet strikes C, a traveler on the road. A is liable to C.” (Rest., Torts, § 876 (b), com., illus. 3.) An illustration given under subsection (c) is the same as above except the factor of both defendants shooting is missing and joint liability is not imposed. It is further said that: “If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence may be held by the jury to be a substantial factor in bringing it about.” (Rest., Torts, § 432.) Dean Wigmore has this to say: “When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person’s two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm, (b) ... The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how *86much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves. Since, then, the difficulty of proof is the reason, the rule should apply whenever the harm has plural causes, and not merely when they acted in conscious concert. ...” (Wigmore, Select Cases on the Law of Torts, § 153.) Similarly Professor Carpenter has said: “[Suppose] the case where A and B independently shoot at C and but one bullet touches C’s body. In such case, such proof as is ordinarily required that either A or B shot C, of course fails. It is suggested that there should be a relaxation of the proof required of the plaintiff . . . where the injury occurs as the result of one where more than one independent force is operating, and it is impossible to determine that the force set in operation by defendant did not in fact constitute a cause of the damage, and where it may have caused the damage, but the plaintiff is unable to establish that it was a cause.” (20 Cal.L.Rev. 406.)

When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers—both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer evidence' to determine which one caused the injury. This reasoning has recently found favor in this court. In a quite analogous situation this court held that a patient injured while unconscious on an operating table in a hospital could hold all or any of the persons who had any connection with the operation even though he could not select the particular acts by the particular person which led to his disability. (Ybarra v. Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258].) There the court was considering whether the patient could avail himself of res ipsa loquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff has made out a case when he has produced evidence which gives rise to an inference of negligence which was the proximate cause of the injury. It is up to *87defendants to explain the cause of the injury. It was there said: “If the doctrine is to continue to serve a useful purpose, we should not forget that ‘the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.’ ” (P. 490.) Similarly in the instant case plaintiff is not able to establish which of defendants caused his injury.

The foregoing discussion disposes of the authorities cited by defendants such as Kraft v. Smith, 24 Cal.2d 124 [148 P.2d 23], and Hernandez v. Southern California Gas Co., 213 Cal. 384 [2 P.2d 360], stating the general rule that one defendant is not liable for the independent tort of the other defendant, or that ordinarily the plaintiff must show a causal connection between the negligence and the injury. There was an entire lack of such connection in the Hernandez ease and there were not several negligent defendants, one of whom must have caused the injury.

Defendants rely upon Christensen v. Los Angeles Electrical Supply Co., 112 Cal.App. 629 [297 P. 614], holding that a defendant is not liable where he negligently knocks down with his car a pedestrian and a third person then ran over the prostrate person. That involves the question of intervening cause which we do not have here. Moreover it is out of harmony with the current rule on that subject and was properly questioned in Hill v. Peres, 136 Cal.App. 132 [28 P.2d 946] (hearing in this Court denied), and must be deemed disapproved. (See, Mosley v. Arden Farms Co., 26 Cal. 2d 213 [157 P.2d 372, 158 A.L.R. 872]; Sawyer v. Southern California Gas Co., 206 Cal. 366 [274 P. 544]; 2 Cal.Jur. 10-Yr. Supp. Automobiles, § 349; 19 Cal.Jur. 570-572.)

Cases are cited for the proposition that where two or more tort feasors acting independently of each other cause an injury to plaintiff, they are not joint tort feasors and plaintiff must establish the portion of the damage caused by each, even though it is impossible to prove the portion of the injury caused by each. (See, Slater v. Pacific American Oil Co., 212 Cal. 648 [300 P. 31]; Miller v. Highland Ditch Co., 87 Cal. 430 [25 P. 550, 22 Am.St.Rep. 254]; People v. Gold Run D. & M. Co., 66 Cal. 138 [4 P. 1152, 56 Am.Rep. 80]; Wade v. Thorsen, 5 Cal.App.2d 706 [43 P.2d 592]; California O. Co. v. Riverside P. C. Co., 50 Cal.App. 522 [195 P. 694]; *88 City of Oakland v. Pacific Gas & E. Co., 47 Cal.App.2d 444 [118 P.2d 328].) In view of the foregoing discussion it is apparent that defendants in cases like the present one may be treated as liable on the same basis as joint tort feasors, and hence the last-cited cases are distinguishable inasmuch as they involve independent tort feasors.

In addition to that, however, it should be pointed out that the same reasons of policy and justice shift the burden to each of defendants to absolve himself if he can—relieving the wronged person of the duty of apportioning the injury to a particular defendant, apply here where we are concerned with whether plaintiff is required to supply evidence for the apportionment of damages. If defendants are independent tort feasors and thus each liable for the damage caused by him alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. (See, Colonial Ins. Co., v. Industrial Acc. Com., 29 Cal.2d 79 [172 P.2d 884].) Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tort feasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not in a position to complain of uncertainty. (California O. Co. v. Riverside P. C. Co., supra.)

It is urged that plaintiff now has changed the theory of his case in claiming a concert of action; that he did not plead or prove such concert. From what has been said it is clear that there has been no change in theory. The joint liability, as well as the lack of knowledge as to which defendant was liable, was pleaded and the proof developed the ease under either theory. We have seen that for the reasons of policy discussed herein, the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently.

The judgment is affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.

Appellant Tice’s petition for a rehearing was denied December 16, 1948.

4.4.2 Proximate Causation 4.4.2 Proximate Causation

This inquiry is not really about causality in the physical sense at all. Justice Andrews made this clear in his famous comment in Palsgraf: "What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics." Andrews' comment could be restated this way: whether the element of legal/proximate cause is satisfied turns on whether the defendant's negligence is sufficient linked to the plaintiff's injury to warrant holding holding the former responsible for the latter.

4.4.2.1 "Natural" test 4.4.2.1 "Natural" test

4.4.2.1.1 Arkansas Model Jury Instructions-Civil, Section 501 4.4.2.1.1 Arkansas Model Jury Instructions-Civil, Section 501

Ark. Model Jury Instr., Civil AMI 501

Arkansas Model Jury Instructions-Civil

November 2022 Update

Arkansas Supreme Court Committee On Jury Instructions-Civil

Chapter 5. Proximate Cause

AMI 501 Proximate Cause—Concurring Proximate Cause—Definition

The law frequently uses the expression “proximate cause,” with which you may not be familiar. When I use the expression “proximate cause,” I mean a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.

[This does not mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.]

4.4.2.1.2 Note: Early interpretations of "natural and continuous" -- In Re Polemis 4.4.2.1.2 Note: Early interpretations of "natural and continuous" -- In Re Polemis

It's hard to interpret the phrase "nuatural and continuous." A famous British case interpreted analogous language to reach the result that if the defendant stevedores were negligent in dropping a plank into the hold of the ship while unloading it, then, if the dropped plank inexplicably and immediately caused a sparked and then a fire, then the defendants would be liable for the fire. In Re Polemis (1921) 3 K.B. 560.

4.4.2.2 Substantial Factor 4.4.2.2 Substantial Factor

4.4.2.2.1 Restatement Second, Section 433, On Substantial Factor 4.4.2.2.1 Restatement Second, Section 433, On Substantial Factor

The Second Restatement finds the proximate cause is satisfied whenever the defendant's negligence is a "substantial factor" in bringing about the plaintiff's harm.

The actor's negligent conduct is a legal cause of harm to another if

(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.

Restatement (Second) of Torts § 431 (1965)

The following considerations are in themselves or in combination with one another important in determining whether the actor's conduct is a substantial factor in bringing about harm to another:

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
(c) lapse of time.

Restatement (Second) of Torts § 433 (1965)

4.4.2.2.2 Kelly v. Sinclair Oil Corp. ("The Drunken Chain of Events Case") 4.4.2.2.2 Kelly v. Sinclair Oil Corp. ("The Drunken Chain of Events Case")

Is the court correct that proximate cause was lacking here as a matter of law? (note also that this case was overruled in Thompson v. Kaczinski, below)

476 N.W.2d 341 (1991)

Karen K. KELLY, Conservator of the Estate of Regina Butcher, a Minor, and Karen K. Kelly, Individually; David Den Adel and Laverna Den Adel, Administrators of the Estate of Dena Marie Den Adel, and David Den Adel and Laverna Den Adel, Individually, Appellants,
v.
SINCLAIR OIL CORPORATION, d/b/a Sinclair Marketing Company, Appellee,
and
Boot Hill Enterprises, Inc., d/b/a Outer Limits and Dan Goulden, Appellees,
and
Scott Giannetto and Jeffrey Dean Bryant, Defendants.

No. 90-1079.

Supreme Court of Iowa.

October 16, 1991.Rehearing Denied November 26, 1991.

342 *342 Robert A. Nading II and Gregory A. Skinner, Ankeny, for appellants Kelly.

Roger J. Hudson and Thomas T. Tarbox of Smith, Schneider, Stiles, Mumford, Schrage, Zurek, Wimer & Hudson, P.C., Des Moines, for appellants Den Adel.

Roland D. Peddicord and Joseph M. Barron of Peddicord, Wharton, Thune, Foxhoven & Spencer, P.C., Des Moines, for appellee Sinclair Oil.

Gerry Rinden and Andrew M. Johnson of Wintroub, Rinden, Okun & Sens, Des Moines, for appellees Boot Hill and Goulden.

Considered en banc.

343 *343 McGIVERIN, Chief Justice.

This case involves several questions concerning the Iowa Dramshop Act and common law claims arising from the alleged furnishing of intoxicants. Plaintiffs allegedly were injured as a result of the acts of an intoxicated driver and other defendants.

Plaintiffs Karen K. Kelly, conservator of the estate of her daughter Regina Butcher, and Karen individually (Kelly), and plaintiffs David and Laverna Den Adel, administrators of the estate of their daughter Dena Marie Den Adel, and David and Laverna individually (Den Adel) (herein collectively referred to as plaintiffs), have taken an interlocutory appeal challenging the district court ruling granting certain defendants' summary judgment motions. Defendant Sinclair Oil Corporation (Sinclair) likewise has taken an interlocutory appeal challenging the district court ruling denying one of Sinclair's summary judgment motions. We granted all parties' applications. See Iowa R.App.P. 2.

Plaintiffs contend that the district court erred in granting defendant Sinclair's summary judgment motion as to the counts of plaintiffs' petitions under the Iowa Dramshop Act. See Iowa Code § 123.92 (1989). Sinclair cross-appeals, claiming the court erred in failing to grant its summary judgment motion concerning plaintiffs' common law negligence counts against Sinclair.

Plaintiffs also contend the district court erred in granting the summary judgment motion of defendants Boot Hill Enterprises, Inc., and Dan Goulden concerning plaintiffs' dramshop actions, and also contend the court erred in granting the summary judgment motion of Boot Hill and Goulden concerning plaintiffs' common law negligence actions.

We, now, affirm the district court's ruling granting Sinclair's summary judgment motion on plaintiffs' dramshop counts. We also affirm the ruling granting Boot Hill and Goulden's summary judgment motion on plaintiffs' dramshop counts, as well as the ruling granting Boot Hill and Goulden's summary judgment motion on plaintiffs' common law negligence counts. However, we reverse the district court's ruling denying Sinclair's summary judgment motion on plaintiff's common law negligence counts.

I. Background facts and proceedings. Our examination of the pleadings, depositions, answers to interrogatories, admissions, and affidavits reveals the following facts and proceedings. See Iowa R.Civ.P. 237(c). On the evening of January 28, 1989, defendant Jeffrey Dean Bryant, who was then twenty years old, went to the home of his friend defendant Scott Giannetto in Marshalltown, Iowa. They left Marshalltown in Giannetto's pickup truck to visit a friend, Dennis Carroll, who lived in Des Moines.

On the way to Des Moines, the two enjoyed a six-pack of beer and mixed drinks containing rum. When the two finally arrived at Carroll's house, both Carroll and his wife noticed the effects of Giannetto's imbibing. Despite Giannetto's obvious intoxication, Carroll decided to join him and Bryant on a late-night excursion through Des Moines.

At some point during their trip, Carroll suggested going to a bar. The three ultimately decided on going to the Outer Limits, a tavern owned by defendant Boot Hill. Before they went to Boot Hill's tavern, however, they stopped at a gas station and convenience store owned by defendant Sinclair. Bryant waited in the truck as Giannetto and Carroll went into Sinclair's store to purchase two six-packs of beer. Giannetto and Carroll consumed some of this beer as the group resumed its journey to the Outer Limits tavern; it is unclear whether Bryant also consumed some of this beer.

Upon their arrival at Outer Limits and immediately after passing through the tavern's front door, Giannetto, Carroll, and Bryant were confronted by defendant Dan Goulden, a bartender. Goulden demanded to see identification from each of the three men. Giannetto and Carroll produced their identification satisfying Goulden that they were old enough to be served alcohol. When Bryant admitted that he had no identification, however, Goulden promptly ordered him out of the tavern. Giannetto then gave his keys to Bryant, telling him to 344 *344 sit and wait in his truck while he and Carroll drank the beers they had ordered. Bryant promptly left the tavern.

Some time later, Goulden received a report from another patron that there was a person in the Outer Limits parking lot spinning the wheels of his vehicle and throwing gravel all over the other cars. Goulden went out into the parking lot to find Bryant in Giannetto's pickup truck re-entering the parking lot from the highway. Bryant entered the lot at a high rate of speed and almost struck Goulden. After Bryant stopped the truck, Goulden ordered Bryant, through the truck's open window, to leave the premises. A short argument ensued, whereupon Goulden threatened to call the police if Bryant did not leave. During the argument, Goulden noticed that cans were lying on the floorboard of the truck, that the front of Bryant's shirt was wet, and that there was the smell of beer in the air. After Goulden made his threat, Bryant left the parking lot.

At roughly the same time Bryant left the parking lot, Dena Marie Den Adel, who was sixteen years old, was driving north on Highway 69. Regina Butcher, who was also sixteen years old, was a passenger in the Den Adel vehicle. Soon after Bryant left the Outer Limits parking lot, he drove through a stop sign and collided with the Den Adel vehicle. Den Adel was fatally injured in the crash. Butcher sustained severe head injuries.

Plaintiff Kelly, Butcher's mother, subsequently filed a petition at law naming as defendants Sinclair, Boot Hill, Goulden, Giannetto, and Bryant. Plaintiffs Den Adel filed a similar petition. The actions were consolidated. Only plaintiffs and defendants Sinclair, Boot Hill, and Goulden are involved in the present appeal.

Plaintiffs' petitions contain twelve counts, eight of which are relevant to this appeal. Counts I and II allege common law claims and contend that Sinclair was negligent in selling alcohol to Giannetto, which negligence is alleged to have been a proximate cause of plaintiffs' injuries. Counts III and IV further contend that Sinclair is liable for plaintiffs' injuries under Iowa's Dramshop Act. See Iowa Code § 123.92. Counts V and VI contend that Boot Hill likewise is liable under the dramshop act, and counts VII and VIII allege common law claims and contend that Boot Hill and Goulden were negligent in ordering the allegedly intoxicated Bryant out of the Outer Limits parking lot and onto the public roadway where he caused plaintiffs' injuries.

All defendants involved in this appeal moved for summary judgment. The district court overruled Sinclair's summary judgment motion concerning plaintiffs' negligence actions (counts I and II), but sustained the motions on the dramshop actions against both Sinclair and Boot Hill (counts III through VI), as well as on the negligence actions against Boot Hill and Goulden (counts VII and VIII). Plaintiffs appeal from the district court's ruling granting these summary judgment motions, and Sinclair cross-appeals the ruling denying its summary judgment motion as to plaintiffs' negligence action.

These appeals present five issues for our review: 1) whether stores such as Sinclair's convenience store which sell alcohol exclusively for off-premises consumption are excluded from liability under the Iowa Dramshop Act; 2) if the dramshop act is construed to exclude from liability stores which sell alcohol exclusively for off-premises consumption, whether this distinction violates the equal protection clauses of the United States and Iowa constitutions; 3) assuming plaintiffs may maintain a common law claim against Sinclair, whether Sinclair's conduct in selling alcohol to Giannetto was a proximate cause of plaintiffs' injuries; 4) whether Boot Hill's conduct in serving Giannetto alcohol was a proximate cause of plaintiffs' injuries; and 5) whether as a matter of law Goulden breached any legally recognized duty when he ordered an intoxicated Bryant out of the Outer Limits parking lot and onto the public roadway.

We consider each of these issues in turn.

II. Liability of non-taverns under the dramshop act. On this appeal, plaintiffs contend that the Iowa Dramshop Act, Iowa Code section 123.92, should be construed to 345 *345 apply to non-taverns, such as Sinclair's convenience store and other grocery stores, that only "sell" alcohol, even though such stores do not also "serve" alcohol for on-premises consumption. The district court disagreed, holding that this court's decision in Thorp v. Casey's General Stores, Inc., 446 N.W.2d 457 (Iowa 1989), compels the conclusion that establishments that do not sell and serve alcohol for on-premises consumption are not covered by the dramshop act. For this and other reasons, we conclude that establishments that do not sell and serve alcohol for on-premises consumption are excluded from liability under Iowa's Dramshop Act. More specifically, we hold that the 1986 amendments to the dramshop act, as construed in Thorp, preclude claims against convenience stores such as Sinclair's gas station.

Before the 1986 amendment to the dramshop act, Iowa Code section 123.92 read, in part, as follows:

Every husband, wife, child, parent, guardian, employer or other person who shall be injured in person or property or means of support by any intoxicated person or resulting from the intoxication of any such person, shall have a right of action, severally or jointly, against any licensee or permittee, who shall sell or give any beer or intoxicating liquor to any such person while the person is intoxicated, or serve any such person to a point where such person is intoxicated....

Iowa Code § 123.92 (1985) (emphasis supplied).

The dramshop act was amended in 1986 to provide, in part, as follows:

Any person who is injured in person or property or means of support by an intoxicated person or resulting from the intoxication of a person, has a right of action for all damages actually sustained, severally or jointly, against any licensee or permittee, who sold and served any beer, wine, or intoxicating liquor to the intoxicated person when the licensee or permittee knew or should have known the person was intoxicated....

1986 Iowa Acts ch. 1211, § 12 (codified at Iowa Code § 123.92 (1987)) (emphasis supplied).

We believe that the addition of the word "served," which was not present in the pre-1986 act, and the change in the conjunction from "or" to "and," evidences a legislative intent to exclude licensees and permittees, who do not provide alcohol to customers for on-premises consumption, from dramshop liability. Stated another way, the word "serve," within the context of Iowa's Dramshop Act, means to "serve for on-premises consumption."

A. Controlling basis for the holding in Thorp. In Thorp, we considered whether the retroactive application of the 1986 amendment to section 123.92 constituted a deprivation of the plaintiff's rights in violation of state and federal constitutional due process provisions. 446 N.W.2d at 459. We noted that before the amendment, a plaintiff only had to show that alcohol was "sold." Id. However, after the amendment, a plaintiff no longer had a claim against a convenience store because the amendment precluded a plaintiff from making a dramshop claim against establishments that only "sell" beer. Id. at 462. We thus held that because the plaintiff's dramshop action was eliminated by the retroactive application of the 1986 amendment, plaintiff's due process rights had been violated. Id. at 463.

Plaintiffs Kelly and Den Adel argue that Thorp does not control the court's decision in this case because the construction of the "sold and served" language technically was not a contested issue in Thorp. This is because the Thorp plaintiff accepted the proposition that the amendment precluded her from making a dramshop claim against a convenience store that merely "sold" beer. Id. at 459.

Notwithstanding the precise nature of Thorp's holding, we believe that the construction of the "sold and served" language was nevertheless a controlling basis for the decision made in Thorp, a basis which in turn controls our decision in this case. Had the amendment not operated to exclude from liability establishments which 346 *346 merely "sold" alcohol, the Thorp plaintiff would have had a cause of action under the dramshop act. The plaintiff therein in turn would have been unable to argue that the amendment eliminated that cause of action in violation of due process. Thus, our construction of the "sold and served" language was, contrary to plaintiffs' assertions, a controlling basis of our holding in Thorp that the plaintiff's due process rights had been violated.

We specifically stated in Thorp that

[t]he effect of the 1986 amendment to the Dramshop Act requiring that the seller of intoxicants also serve them is to preclude plaintiff's cause of action against a convenience store that only sells beer.

Id. at 462.

We also note that our decision in Thorp was filed two years ago. If the legislature, in its 1986 amendment, had intended something other than our construction in Thorp, it has had ample opportunity to indicate as much. Cf. Iowa Code § 123.49(1) (1987), overruling Clark v. Mincks, 364 N.W.2d 226 (Iowa 1985). Thus, since Sinclair's store is of the same type of store as the convenience store involved in Thorp, i.e., one that only "sells" alcohol for off-premises consumption, it follows from the language in Thorp that the dramshop act does not apply to Sinclair.

B. Construction of the dramshop act. Plaintiffs nevertheless assert that the statements in Thorp are contrary to a proper construction of the dramshop act. They argue that the "sold and served" language should be read to apply to all permittees and licensees, including those that do not sell and serve alcohol for on-premises consumption. More specifically, plaintiffs say that a permittee or licensee may be liable under the dramshop act for "selling and/or serving" alcohol to intoxicated persons.

Plaintiffs' arguments, however, ignore the fact that the legislature specifically amended the act by inserting the word "and" in place of the former word "or," and by adding the word "serve" in place of the former word "give." Any such amendment is presumed to reflect an intention on the part of the legislature that the statute be given new meaning. State v. Phelps, 417 N.W.2d 460, 461-62 (Iowa 1988). More specifically, when the word "or" is used in a statute, it is presumed to be disjunctive unless a contrary intent appears. Kearney v. Ahmann, 264 N.W.2d 768, 769 (Iowa 1978). Likewise, the word "and" is to be used as a conjunctive, requiring satisfaction of both listed conditions. Casteel v. Iowa Dep't. of Transp., 395 N.W.2d 896, 898 (Iowa 1986). Finally, use of the word "served" in addition to the word "sold" obviously imposes a requirement in addition to the requirement that a permittee or licensee merely "sell" the intoxicating liquor. Accord, Sawyer v. Frank, 152 Iowa 341, 344, 131 N.W. 761, 762 (1911) (legislature's use of the word "dispense" in the alternative with "sell" indicates an intent that the word is used to describe an independent and distinct method of disposal of liquor) (cited in Thorp, 446 N.W.2d at 465).

The foregoing rules of statutory construction require us to conclude that before dramshop liability may be imposed upon a permittee or licensee, a plaintiff must prove, at a minimum, that an intoxicated person was both "sold" and "served" intoxicating liquor. To fulfill this dual requirement, a plaintiff must prove, not only that a "sale" occurred, but also that a permittee or licensee actually "served" intoxicating liquor, with the intent that it be consumed on the premises. Accord, Treasure Island Catering Co., Inc. v. State Bd. of Equalization, 19 Cal.2d 181, 187, 120 P.2d 1, 5 (1941) (one who merely prepares a sandwich for consumption without offering any facilities for its consumption on the premises and with intent that it be consumed elsewhere has not "served" a meal within the meaning of retail sales tax act). A plaintiff may meet this burden in specific instances by demonstrating that an establishment where alcohol is sold generally holds itself out as a place where persons are "served" in the ordinary sense of the word, i.e., one providing premises where orders are taken, patrons are waited on, and drinks are supplied in open containers. See id. at 185, 120 P.2d at 4 (vendor's 347 *347 "premises" could not be defined as an area over which vendor had no control or which was open to the public and not merely for the accommodation of vendor's customers).

Plaintiffs argue that the class of establishments to which the dramshop act applies should not be defined by the types of facilities those establishments offer their patrons. Plaintiffs' objection, however, ignores the realities of the liquor trade. As a practical matter, a patron wishing to obtain alcohol can do so in only one of two ways: by purchasing it for on-premises consumption or by purchasing it for off-premises consumption. Those establishments that wish to provide alcohol to their patrons exclusively for off-premises consumption may do so by merely "selling" it to their patrons. However, those establishments wishing to provide alcohol for on-premises consumption must not only "sell" it to their patrons, but must also "serve" it to them on facilities provided for that very purpose. Since the post-1986 dramshop act specifically applies only to those establishments that both "sell" and "serve" alcohol, we find it impossible to construe the act as applying to anything other than only those establishments providing facilities for on-premises consumption.

C. "Serving" versus "consuming" alcohol. Finally, plaintiffs imply that construing section 123.92 to require a showing that a dramshop both "sell" and "serve" alcohol would be inconsistent with this court's holding in Thorp that a plaintiff need not prove that the patron actually "consumed" a dramshop's alcohol in order to maintain a claim. 446 N.W.2d at 467. We disagree. Our conclusion today is fully consistent with our holding in Thorp because a requirement that a plaintiff prove that the patron was "served" alcohol for on-premises consumption does not mean that a plaintiff must also prove that the patron in fact "consumed" it. Indeed, the two words have two entirely different meanings, a fact which we implicitly recognized by our holding in Thorp.

We have considered plaintiffs' other contentions on this issue and find them without merit. Accordingly, we hold that before a permittee or licensee may be exposed to liability under the dramshop act, Iowa Code section 123.92 (1989), a plaintiff must prove that the permittee or licensee both sold and served alcohol to an intoxicated person with the intent that the alcohol be consumed on the premises.

We therefore affirm the ruling of the district court granting Sinclair's summary judgment motion as to plaintiffs' dramshop actions against Sinclair.

III. Equal protection claim. We next must consider whether application of section 123.92, Iowa's Dramshop Act, to preclude liability against defendant Sinclair, a non-tavern licensee, violates the equal protection clauses of the United States and Iowa constitutions. U.S. Const. amend. XIV, § 1; Iowa Const. art. I, § 6. We conclude that it does not.^[1]

For purposes of this analysis, plaintiffs define the classifications created by the statute as (1) victims of persons who were sold and served alcohol by a tavern for on-premises consumption, and (2) victims of persons who were sold alcohol by a non-tavern for off-premises consumption. Plaintiffs believe that the dramshop act violates equal protection guarantees insofar as it treats similarly situated victims differently depending upon whether the intoxicated consumer purchased beer or intoxicating liquor in a tavern as opposed to a non-tavern.

We have recognized, however, that the equal protection clause is not violated if the challenged law operates equally upon those persons or classes of persons intended to be affected as a result of a valid exercise of the legislature's lawmaking power. See Train Unlimited Corp. v. Iowa Ry. Fin. Auth., 362 N.W.2d 489, 495 (Iowa 1985). Plaintiffs Kelly and Den Adel have not demonstrated that the dramshop act operates unequally upon those persons intended to be affected thereby, i.e., those persons who are injured as a result of intoxicated persons who were sold and served alcohol by a tavern. Plaintiffs may not sustain 348 *348 their equal protection claim merely by showing that non-tavern permittees such as Sinclair have a different legal status than other permittees that sell and serve alcohol for on-premises consumption. See Allied Mut. Ins. Co. v. State, 473 N.W.2d 24, 27 (Iowa 1991). The fact that the legislature chose not to provide a claim against some vendors of intoxicating beverages does not give rise to an equal protection violation. Accord Fuhrman v. Total Petroleum, Inc., 398 N.W.2d 807, 810 (Iowa 1987) (dramshop act calls for a carefully limited class of persons to whom recovery rights were given); Ry. Express Agency v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 466, 93 L.Ed. 533, 539 (1949) (it is no requirement of equal protection that the legislature eradicate all potential evils or none at all).

In any event, we do not believe that the dramshop act otherwise violates equal protection guarantees. All parties agree that the appropriate standard to use in determining whether the dramshop act violates equal protection guarantees is the rational basis test. Under that standard, a statute is constitutional unless the challenged classification is patently arbitrary and bears no rational relationship to a legitimate state purpose. Ruden v. Parker, 462 N.W.2d 674, 676 (Iowa 1990); Bennett v. City of Redfield, 446 N.W.2d 467, 474 (Iowa 1989). Statutes are presumed constitutional and the burden rests on the challenger to demonstrate that a statute violates equal protection guarantees. Id.

Our first task is to determine whether section 123.92 promotes a legitimate state purpose. The purpose of Iowa's Dramshop Act is to discourage the serving of excess liquor to patrons. Rigby v. Eastman, 217 N.W.2d 604, 608 (Iowa 1974). Its purpose is also to provide a mode of relief to innocent victims harmed by those who contribute to the serving of excess liquor. Slager v. HWA Corp., 435 N.W.2d 349, 351 (Iowa 1989). It is undisputed that these are legitimate state purposes, designed for the "protection of the welfare, health, peace, morals, and safety of the people of the state" of Iowa. See Iowa Code § 123.1.

Our second task is to determine whether the classification established by section 123.92 promotes these legitimate state purposes. We conclude that it does for two related reasons. First is the fact that, where alcohol is served for on-premises consumption, it is consumed in the permittee's or licensee's facilities where the permittee or licensee owner or employees have the opportunity to observe their patrons' consumption and behavior. It is entirely rational for the legislature to conclude that such permittees and licensees be held to a higher standard of care in preventing the consumption of alcohol by intoxicated patrons.

Furthermore, permittees and licensees who sell alcohol exclusively for off-premises consumption have no control over their patrons once those patrons make their purchases and leave the premises. Although some of those patrons may purchase alcohol for immediate consumption, many of those patrons often purchase it intending to consume it at some undetermined time in the future. The legislature thus could have rationally concluded that the purposes of the dramshop act would not be furthered by imposing upon such permittees and licensees a standard of care equivalent to that imposed upon permittees and licensees that both sell and serve alcohol for on-premises consumption.

Accordingly, we hold that plaintiffs may not maintain that the dramshop act violates equal protection guarantees by claiming that it treats similarly situated victims differently depending upon whether the intoxicated consumer purchased beer or intoxicating liquor in a tavern as opposed to a non-tavern. Additionally, the distinction which section 123.92 makes between permittees and licensees which sell and serve alcohol for on-premises consumption and those which sell it for off-premises consumption does not otherwise violate the equal protection guarantees of the United States and Iowa constitutions.

IV. Common law negligence claim against Sinclair. Plaintiffs' petitions allege 349 *349 a common law negligence claim and contend that Sinclair should be liable to plaintiffs for selling beer, in violation of Iowa Code section 123.49(1), to an intoxicated Giannetto, who later entrusted his truck to Bryant, whose use of it in turn injured the plaintiffs.

The district court overruled Sinclair's summary judgment motion as to this claim, holding that a plaintiff may maintain a common law claim against a licensee or permittee who is not otherwise covered by the dramshop act. Iowa Code § 123.92. Sinclair cross-appeals from that ruling.

Iowa Code section 123.49(1) prohibits a person from selling, dispensing, or giving any intoxicant to an intoxicated person. For purposes of this appeal, we assume, without deciding, that section 123.49(1) establishes a minimum standard of care for conduct generally required of the reasonably prudent person under like circumstances for purposes of a common law negligence action based on the sale or furnishing of intoxicating liquor.^[2] We conclude that, even assuming plaintiffs Kelly and Den Adel may maintain such a common law claim against Sinclair, Sinclair's conduct in selling Giannetto alcohol was not, as a matter of law, a proximate cause of plaintiffs' injuries.

A. Proximate and superseding causes. Proximate causation presents the question of whether the policy of the law will extend responsibility to those consequences which have in fact been produced by an actor's conduct. State v. Marti, 290 N.W.2d 570, 585 (Iowa 1980). The general rule is that an actor's conduct is the proximate or legal cause of harm to another if (1) his conduct is a "substantial factor" in bringing about the harm and (2) there is no other rule of law relieving the actor of liability because of the manner in which his negligence resulted in the harm. See Smith v. Shaffer, 395 N.W.2d 853, 857 (Iowa 1986); Winter v. Honeggers' & Co., Inc., 215 N.W.2d 316, 320 (Iowa 1974). Factors to consider in determining whether an actor's conduct is a proximate cause of a plaintiff's injury include the proximity and foreseeability of the harm flowing from the actor's conduct, although it is not necessary that the actual consequences of a defendant's negligence should have been foreseen. See Nachazel v. Miraco Mfg., 432 N.W.2d 158, 160 (Iowa 1988) (injuries must be the natural, though not inevitable, result of the wrong); Cronk v. Iowa Power & Light Co., 258 Iowa 603, 613, 138 N.W.2d 843, 848-49 (1965); Christianson v. Kramer, 255 Iowa 239, 249-50, 122 N.W.2d 283, 289 (1963); see also Restatement (Second) of Torts §§ 433, 435 (1965).

When conduct or forces occur after an actor's conduct, however, the actor may be relieved of liability if a court finds that the later-occurring event is such as to break the chain of causal events between the actor's negligence and the plaintiff's injury. This is so even when the actor's conduct is a cause-in-fact of the plaintiff's harm. See Brichacek v. Hiskey, 401 N.W.2d 44, 48 (Iowa 1987); Shaffer, 395 N.W.2d 853, 857; Iowa Elec. Light and Power Co. v. General Elec. Co., 352 N.W.2d 231, 235 (Iowa 1984); Schnebly v. Baker, 217 N.W.2d 708, 729 (Iowa 1974) 350 *350 (actor's conduct and intervening event may be regarded as concurring legal causes depending on circumstances). See generally Restatement (Second) of Torts §§ 440-43, 447-49 (1965). More specifically, where a patron's intoxication does nothing more than furnish a condition by which an injury is made possible by subsequent independent intervening events, the intervening events, not the intoxication, are the direct and immediate cause of the injury. See generally 45 Am.Jur.2d, Intoxicating Liquors § 585, at 876 (1969).

In the present case, plaintiffs seek to impose liability upon Sinclair for the injuries they sustained in the accident with Bryant. We conclude, however, that Sinclair may not be exposed to such liability; this case is one of those exceptional cases where we decide the proximate cause issue as a matter of law. See Iowa R.App.P. 14(f)(10). More specifically, we conclude that, as a matter of law, plaintiffs' injuries were not the proximate, foreseeable result of Sinclair's conduct in selling Giannetto beer or intoxicating liquor because Sinclair's conduct was not a "substantial factor" giving rise to those injuries; the acts of Giannetto and Bryant were "superseding" events.

We find support for this conclusion in Gremmel v. Junnie's Lounge, Ltd., 397 N.W.2d 717 (Iowa 1986). In Gremmel, the plaintiff, a patron of Junnie's Lounge, was injured in a fight with three assailants, who also were patrons of the lounge. Id. at 719. The plaintiff thereafter brought a dramshop suit against the lounge based on assault. Id. The lounge defended, however, on the basis that the assailants' intoxication was not a proximate cause of plaintiff's injuries; i.e., that this did not contribute to the assailants' propensity to fight with plaintiff. Id. at 721. We agreed, concluding that a prior incident between the plaintiff and one of his assailants, coupled with the exchange of words between plaintiff and that assailant while at the lounge, supported a reasonable inference that the ill-feeling between the two, rather than the intoxication, led to the assault. Id.

The holding in Gremmel supports our conclusion in this case that Sinclair's conduct in selling Giannetto alcohol was not, as a matter of law, a proximate cause of plaintiffs' injuries. This conclusion is based primarily upon the fact that this case involves two events which intervened between Sinclair's sale of alcohol to Giannetto and Bryant's accident with the Den Adel vehicle, whereas in Gremmel, there was only one intervening event. More specifically, the chain of events involved in Gremmel began with the lounge's serving of alcohol to the assailants, followed by the assailants' fight with the plaintiff, resulting in plaintiff's injuries. However, Sinclair's act of selling alcohol to Giannetto was twice-removed from the injuries of Kelly and Den Adel: the chain of events began with Sinclair's sale of alcohol to Giannetto, followed by Giannetto's alleged negligent entrustment of his truck to Bryant,^[3] followed by Bryant's illegal act of driving the truck while intoxicated, resulting in plaintiffs' injuries. We acknowledge that there need not be a certain number of 351 *351 intervening events between a defendant's conduct and a plaintiff's injuries in order for a court to relieve the defendant of liability. Nevertheless, the number of intervening events is certainly a factor in considering the proximity and foreseeability of the harm flowing from the defendant's conduct.

Since the chain of events in Gremmel was sufficient to support a jury verdict that the lounge's conduct was not a proximate cause of plaintiff's injuries, we believe we are justified in this case in holding that, as a matter of law, Sinclair's conduct was not a "substantial factor" in bringing about the injuries of Kelly and Den Adel. Shaffer, 395 N.W.2d at 857; Winter, 215 N.W.2d at 320; see also Restatement (Second) of Torts §§ 442A, 442B, 443 (1965). As was true of the assailants in Gremmel, Giannetto's intoxication did not contribute to any "propensity" he may have had to later negligently entrust his truck to Bryant while the group was at Boot Hill's tavern; it was the simple fact that Bryant was a minor who by law could not be served alcohol by a licensee or permittee such as Boot Hill, and who was rightfully ordered off of Boot Hill's premises by bartender Goulden. It was for this independent reason that Giannetto gave Bryant his truck keys. See Brichacek, 401 N.W.2d at 48; Schnebly, 217 N.W.2d at 729; Bistline v. Ney Bros., 134 Iowa 172, 180, 111 N.W. 422, 425 (1907) (liquor seller may not be held liable for injuries which are in no manner connected with the intoxication of the person in question). See generally Restatement (Second) of Torts § 442(c) (1965).

By merely selling alcohol to Giannetto, even assuming Giannetto was intoxicated at the time, Sinclair was not in any way responsible for the conduct of Bryant, a non-patron who never entered Sinclair's convenience store and who was intoxicated from drinking alcohol procured from other sources. Accord Shaffer, 395 N.W.2d 853 (tavern owners did not have affirmative duty to inform authorities that intoxicated minors were on their premises after curfew; owners were not liable for damages caused by minors after they left taverns, stole a car, and drove off in intoxicated condition).

We note that our conclusion that Sinclair's conduct in selling Giannetto beer was not a proximate cause of plaintiffs' injuries is supported by cases from other jurisdictions. One such case is Boyd v. Fuel Distributors, Inc., 795 S.W.2d 266 (Tex.Ct.App.1990). In construing Texas' dramshop act, the Boyd court held that the intoxication of a minor-passenger who had purchased alcohol for consumption by himself and the driver could not be the cause-in-fact of an automobile accident so as to support the imposition of liability on the store which had wrongfully sold the minor-passenger the alcohol. The court held as it did even though plaintiff argued that but for the passenger's intoxication and his persuasion of the driver that they should go for a ride despite their intoxicated condition, the driver would not have been driving. Id. at 272. We likewise conclude that Sinclair may not be held liable for plaintiffs' injuries even though, but for Giannetto's intoxication and his alleged negligent entrustment of his truck to Bryant, Bryant would not have been driving. Indeed, Giannetto's alleged negligent entrustment would have occurred even if he had had nothing to drink that night. See id.

Other cases include Crea v. Bly, 298 N.W.2d 66 (Minn.1980), holding that a dramshop's mere serving of liquor to an intoxicated woman was not the proximate cause of injuries later inflicted on the plaintiff by the woman's boyfriend, where the woman had encouraged her boyfriend to inflict the injuries, and Rio v. Minton, 291 So.2d 214 (Fla.Dist.Ct.App.1974), cert. denied, 297 So.2d 837 (Fla.1974), holding that it was not probable or reasonably foreseeable that a non-patron adult would negligently entrust his vehicle to a minor who had consumed alcohol on the defendant's premises. These cases support our conclusion that Sinclair, twice-removed from the conduct that actually resulted in plaintiffs' injuries, should not be exposed to liability in light of the superseding acts of Giannetto's alleged negligent entrustment and Bryant's illegal operation of Giannetto's truck.

352 *352 B. Summary. For the foregoing reasons, we hold that, as a matter of law, Sinclair's conduct in selling Giannetto alcohol was not a proximate cause of plaintiffs' injuries. Even assuming it may be reasonably foreseeable that intoxicated persons such as Giannetto who purchase liquor from non-tavern permittees may in turn provide instrumentalities to third parties such as Bryant, we do not believe this justifies imposing liability upon permittees, such as Sinclair's convenience store or other grocery stores, that sell alcohol exclusively for off-premises consumption. Such a holding would result in imposing liability upon permittees for the conduct of non-patrons occurring weeks, months, or even years after the initial sale of the alcohol, thus making such permittees liable for acts over which they have absolutely no control whatsoever.

Accordingly, we reverse the judgment of the district court overruling Sinclair's summary judgment motion.

V. Dramshop action against Boot Hill. Plaintiffs contend that Boot Hill is liable to them under the dramshop act for serving alcohol to Giannetto when it "knew or should have known" he was intoxicated. Iowa Code § 123.92. This conduct in turn is alleged to have contributed to Giannetto's negligence in entrusting his truck keys to Bryant, who was also intoxicated.

In other words, plaintiffs argue that Boot Hill may be held liable for Bryant's act of colliding with the Den Adel vehicle, even though Boot Hill only sold and served alcohol to Giannetto and not to Bryant; that Boot Hill's act in serving Giannetto was a proximate cause of plaintiffs' injuries.

The district court sustained Boot Hill's summary judgment motion as to plaintiffs' claims. For the same reasons outlined in the previous division of this opinion, we affirm. More specifically, we conclude that the conduct of Boot Hill in serving Giannetto beer was not, as a matter of law, a proximate cause of the injuries of plaintiffs Kelly and Den Adel.^[4]

A. Burden of proving proximate cause. As an initial matter, we note that plaintiffs Kelly and Den Adel carry the burden of proving that Boot Hill's conduct contributed to plaintiffs' injuries. The dramshop act provides that "[i]f the injury was caused by an intoxicated person, a permittee or licensee may establish as an affirmative defense that the intoxication did not contribute to the injurious action" of the intoxicated person. Iowa Code § 123.92. However, this clause eliminates the plaintiff's burden of proving proximate cause only where the injury is caused by the intoxicated person.

In those cases, such as the one before us, where a plaintiff alleges injuries resulting from the intoxication of a person, the plaintiff carries the burden of establishing that the licensee's or permittee's conduct was a proximate cause of those injuries. Walton v. Stokes, 270 N.W.2d 627, 628 (Iowa 1978); Lee v. Hederman, 158 Iowa 719, 722-23, 138 N.W. 893, 894-95 (1913) (construing former dramshop act allowing plaintiff to recover for injuries "in consequence of" another's intoxication); Bistline, 134 Iowa at 180, 184, 111 N.W. at 425-26 (same); 45 Am.Jur.2d Intoxicating Liquors, §§ 583-585, at 873-877 (1969); Schubert, The Iowa Dram Shop Act—Causes of Action and Defenses, 23 Drake L.Rev. 16, 21 (1973).

B. Proximate and superseding causes. As stated above, plaintiffs seek to impose liability upon Boot Hill for the injuries they sustained in the accident with Bryant. We conclude, however, that Boot Hill may not be exposed to such liability. More specifically, we conclude that, as a matter of law, plaintiffs' injuries were not the proximate, foreseeable result of Boot Hill's conduct in serving Giannetto beer or intoxicating liquor because Boot Hill's conduct was not a "substantial factor" giving rise to those injuries; the acts of Giannetto and Bryant were "superseding" events.

353 *353 As was the case in our above disposition of plaintiffs' claims against Sinclair, Gremmel supports our conclusion here that Boot Hill's conduct in serving Giannetto alcohol was not, as a matter of law, a proximate cause of plaintiffs' injuries. This conclusion again is based upon the fact that this case involves two events which intervened between Boot Hill's serving of Giannetto and Bryant's accident with the Den Adel vehicle, whereas in Gremmel, there was only one intervening event. Boot Hill's act of serving Giannetto was twice-removed from the injuries of Kelly and Den Adel: the chain of events began with Boot Hill's serving of alcohol to Giannetto, followed by Giannetto's alleged negligent entrustment of his truck to Bryant, followed by Bryant's illegal act of driving the truck while intoxicated, resulting in plaintiffs' injuries.

Thus, Boot Hill's conduct was not a "substantial factor" in bringing about the injuries of Kelly and Den Adel. Shaffer, 395 N.W.2d at 857; Winter, 215 N.W.2d at 320; see also Restatement (Second) of Torts §§ 442A, 442B, 443 (1965). Giannetto's intoxication did not contribute to any "propensity" to negligently entrust his truck to Bryant; it was the simple fact that Bryant was a minor who by law could not be served alcohol by a licensee or permittee, and who was rightfully ordered off the premises by bartender Goulden. It was for this independent reason that Giannetto gave Bryant his truck keys. See Brichacek, 401 N.W.2d at 48; Schnebly, 217 N.W.2d at 729; Restatement (Second) of Torts § 442(c) (1965). By merely serving Giannetto, even assuming Giannetto was intoxicated at the time, Boot Hill was not in any way responsible for the conduct of Bryant, a non-patron, who was intoxicated from drinking alcohol procured from other sources, and who illegally drove the truck which caused plaintiffs' injuries.

C. Summary. For the foregoing reasons, we hold that, as a matter of law, Boot Hill's conduct in serving Giannetto alcohol was not a proximate cause of plaintiffs' injuries.

We acknowledge that imposing liability upon Boot Hill would promote one of the primary objectives of the dramshop act, which is to provide a mode of relief to innocent victims harmed by those who contribute to the serving of excess liquor. Slager, 435 N.W.2d at 351. However, to impose liability upon a licensee or permittee in these circumstances would open the floodgates to a plethora of lawsuits, exposing licensees and permittees to almost limitless liability. Of course, this would not serve one of the other key purposes of the dramshop act, which is to discourage the serving of excess liquor to patrons. Rigby, 217 N.W.2d at 608. This is so because a dramshop owner may find that even when he does what is legally required of him, i.e., refuse to serve a minor, he may nevertheless be exposed to liability for the conduct of that minor long after the minor was ordered off the premises. Indeed, it would be inconsistent for us to conclude, on the one hand, that bartender Goulden did not breach any legally recognized duty when he ordered an intoxicated Bryant onto the public roadway,^[5] and also to conclude, on the other hand, that Boot Hill's conduct in serving Giannetto somehow is a proximate cause of the accident between Bryant and Butcher and Den Adel.

In light of our holding in this division, we find it unnecessary to consider plaintiffs' other contentions. Accordingly, we affirm the judgment of the district court sustaining Boot Hill's summary judgment motion concerning the dramshop counts of plaintiffs' petitions.

VI. Bartender Goulden's duty to plaintiffs. Plaintiffs contend that bartender Goulden's actions fell below a standard of care to plaintiffs when he ordered Bryant out of the Outer Limits parking lot and onto the public roadway.^[6] They argue that, although there is no duty to assist a 354 *354 person in peril, when an actor such as Goulden "affirmatively acts" by directing an intoxicated person onto a public roadway, the actor must act non-negligently. Boot Hill and Goulden argue that there is no duty imposed upon an actor, such as Goulden, absent a special relationship between the actor and third persons such as plaintiffs.

The district court granted Boot Hill and Goulden's summary judgment motion on this claim, ruling that Goulden breached no legally recognized duty. We agree with this conclusion and affirm.

A fundamental principle of tort law is that the violation of a legal right by a wrongdoer is a prerequisite to obtain redress for a claimed wrong. Engstrom v. State, 461 N.W.2d 309, 315 (Iowa 1990). It is therefore necessary to establish a duty owed the injured party by the wrongdoer, and a violation of that duty. Id.

The general rule at common law is that a person has no duty to prevent a third person from causing harm to another. Anthony v. State, 374 N.W.2d 662, 668 (Iowa 1985). In certain negligence cases, however, the existence of a legal duty may be based upon a special relationship between the parties. This may be true for those claims, such as the one before us, which are based on an alleged failure of a wrongdoer to control the conduct of a third party or to aid or protect another. Keller v. State, 475 N.W.2d 174, 179 (Iowa 1991); Sankey v. Richenberger, 456 N.W.2d 206, 209 (Iowa 1990). See generally Restatement (Second) of Torts § 314 comment c (1965) (liability for non-feasance is largely confined to situations in which there is some special relation between the parties). The Restatement (Second) of Torts specifically provides:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or

(b) a special relation exists between the actor and the other which gives the other a right to protection.

Restatement (Second) of Torts § 315 (1965). The issue of whether a particular duty arises out of parties' relationships is always a matter of law for the court to decide. Engstrom, 461 N.W.2d at 315.

According to these principles, which we believe control the present case, we conclude that bartender Goulden owed no duty to either Bryant or to Butcher and Den Adel because (1) there was no special relationship between Goulden and Bryant which imposed a duty upon Goulden to control Bryant's conduct; and because (2) there was no special relationship between Goulden and Butcher and Den Adel which gave the latter a right to protection. More specifically, the relationships, if any, between Goulden and Bryant, and between Goulden and Butcher and Den Adel, fall into none of those "special" relationships outlined in the Restatement (Second) of Torts. See Restatement (Second) of Torts §§ 314A, 314B, 316-20 (1965).

This conclusion is supported by, inter alia, Shaffer, 395 N.W.2d 853 and Hildenbrand v. Cox, 369 N.W.2d 411 (Iowa 1985) and Ewoldt v. City of Iowa City, 438 N.W.2d 843 (Iowa App.1989). Hildenbrand and Ewoldt both addressed the duties police officers owe either to certain classes of individuals or to the public at large. Hildenbrand held that a police officer had no common law duty to an intoxicated individual to detect that individual's intoxicated condition in order to protect him. 369 N.W.2d at 415. Ewoldt similarly held that a police officer had no duty to take a mentally ill person into custody in order to protect either that person or other members of the public who were endangered by that person. 438 N.W.2d at 843; see also Sankey, 456 N.W.2d at 209; Fitzpatrick v. State, 439 N.W.2d 663, 667-68 (Iowa 1989).

The most recent and relevant case we have considered, however, is Shaffer, where we held that certain tavern owners did not have an affirmative duty to inform the authorities and parents that intoxicated 355 *355 juveniles were on their premises after curfew. 395 N.W.2d at 855. The tavern owners thus were not liable for damages caused by the juveniles after they left the taverns, stole a car, and drove off in an intoxicated condition. Id. In support of our holding in Shaffer, we stated:

At most a bar owner is required to order minors to leave the premises. It scarcely needs pointing out that the accident in question did not occur by reason of youths being illegally in the taverns. The difficulties arose after they left. We have found no statute or ordinance, and none has been cited by the plaintiffs, which would require a tavern owner to assume an affirmative duty to notify authorities of an intoxicated minor's illicit presence in the tavern. Such a requirement would be tantamount to making informants out of bar owners and would represent an unjustifiable extension of the scheme devised by the legislature in the dramshop statute.

Id. at 855-56 (emphasis supplied).

We believe these statements lead inexorably to the conclusion that Goulden did not breach any legally recognized duty when he ordered Bryant, a minor who had no right to be at the Outer Limits in the first place, out of the Outer Limits parking lot after Goulden ascertained that Bryant was doing nothing more than being a nuisance to other motor vehicles on the premises. We also believe this conclusion is supported by cases from other jurisdictions with fact patterns similar to the case presently before us. See, e.g., Knighten v. Sam's Parking Valet, 206 Cal.App.3d 69, 253 Cal. Rptr. 365 (1988) (restaurants and valet services have no duty to withhold automobiles from intoxicated patrons); Andrews v. Wells, 204 Cal.App.3d 533, 251 Cal.Rptr. 344 (1988) (bartender breached no duty by failing to act on an inebriated customer's request to arrange transportation home absent a special relationship with the customer); Lather v. Berg, 519 N.E.2d 755 (Ind. Ct.App.1988) (social host could incur no liability for ordering an intoxicated person off the premises; no duty arose because there was no special relationship with the inebriate); Hostetler v. Ward, 41 Wash.App. 343, 704 P.2d 1193 (1985) (no imposition of civil liability where defendant,inter alia, directed allegedly intoxicated minors onto public roadway).

Finally, we acknowledge our dictum in Hildenbrand that "[o]ur court early recognized that intoxication can be a circumstance giving rise to such a special relationship." 369 N.W.2d at 415. In making this statement, we relied on Weymire v. Wolfe, 52 Iowa 533, 3 N.W. 541 (1879), where we held that a tavern-owner could not, as a matter of law, escape liability where he ordered an "unconscious" and helpless drunkard out into the cold, resulting in the drunkard's death. We do not believe that the holding in Weymire is controlling in this case because the facts in that case involved arguably outrageous conduct by the defendant. Indeed, the Restatement (Second) of Torts has acknowledged that there may be an exception to the general rule that there is no duty to act for the protection of others in those "extreme cases of morally outrageous and indefensible conduct." Restatement (Second) of Torts § 314 comment c (1965).

Unlike the facts in Weymire, we do not believe the facts of this case fall into this "outrageousness" exception. We agree with the statements of the district court that it would be "outrageous" to impose, on the one hand, a legal duty on bar-owners to refrain from permitting minors to be business invitees, while on the other hand declaring that bar-owners owe a duty to control the conduct of those same minors after refusing to serve them.

Accordingly, we affirm the ruling of the district court granting Boot Hill and Goulden's summary judgment motion as to plaintiffs' common law claims against them.

VII. Disposition. In summary, we affirm the district court's ruling which sustained Sinclair's summary judgment motion concerning plaintiffs' dramshop actions, and we find no equal protection violation thereby. We also affirm the district court's ruling which sustained the summary judgment motion of Boot Hill and 356 *356 Goulden concerning plaintiffs' dramshop and common law negligence actions.

We reverse the district court's ruling which overruled Sinclair's summary judgment motion concerning plaintiffs' common law negligence actions against Sinclair.

The case is remanded for further proceedings consistent with this opinion. Costs on appeal shall be taxed to plaintiffs.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All Justices concur except LARSON, J., and LAVORATO, J., who concur in part and dissent in part.

LARSON, Justice (concurring in part, dissenting in part).

I agree with the majority that the bar employee who ejected the minor driver did not breach a recognized duty to the plaintiffs. I do not agree, however, with the majority's conclusion that the acts of the convenience store and bartender could not, as a matter of law, be proximate causes of the collision. I strongly disagree with the majority's failure to resolve the paramount issue: whether we will recognize a common-law claim against a licensee in a case which falls outside the coverage of the dramshop statute.

I. The Common-Law Claim.

It is no secret that this court has been deeply divided on extending common-law liability to liquor cases. The primary impediment has been the view that the legislature has preempted all common-law liability of licensees, even for acts of the licensee that fall outside the coverage of the act. This view, with which I have consistently and stridently disagreed, is that if any acts of a licensee are covered by the dramshop statute then all acts of the licensee are immunized from common-law suit, even those acts which are not covered by the statute. I believe this court has erred in applying preemption principles so broadly.

Because Sinclair is a licensee, it is a party covered by section 123.92. In this case, however, Sinclair only sold the beer; it did not also serve it. Under section 123.92, Sinclair cannot be statutorily liable. Thorp v. Casey's General Stores, Inc., 446 N.W.2d 457, 462 (Iowa 1989). I agree with the majority on that point. However, because the statute does not even purport to apply here, I believe we should recognize a common-law claim.

The public policy of our liquor control law, which includes the dramshop statute, is to promote "the protection of the welfare, health, peace, morals, and safety of the people of the state." Iowa Code § 123.1. Interpretation of our dramshop statute, and the scope of its preemption, should be viewed with this policy in mind. Recognition of a common-law cause of action, to the extent it would deter the negligent furnishing of alcohol, would further that policy.

Based largely on these considerations, we have recognized a common-law cause of action for furnishing alcohol to a minor by a nonlicensee, Bauer v. Dann, 428 N.W.2d 658, 661 (Iowa 1988), noting that the sale of alcohol to a minor is not an act covered by the dramshop statute.

It is a disservice to the public and a frustration of the rights of innocent victims such as these plaintiffs to continue to apply the rule of preemption in all claims against licensees, even when the statute does not apply.

The preemption argument becomes less and less defensible as the legislature continues to constrict the coverage of the dramshop statute. The dramshop statute used to apply to a broad class of suppliers, including "any person" under Iowa Code section 129.2 (1950), and to a broad class of acts by those persons, including furnishing alcohol in any manner "contrary to the provisions of this title." Id. A similarly broad scope of the dramshop statute prevailed until recent times; however, the statute now applies only to licensees or permittees, Iowa Code § 123.92 (1991), and for only one type of act by the licensee: the sale to an intoxicated person. Id. The statute now even requires that the beverage be served as well as sold. Id.

357 *357 As long as the legislature continues to restrict the scope of the dramshop statute, and our court persists in its view that whatever rights the statute grants to victims shall be exclusive, the number of persons recovering for alcohol-caused damages by licensees will continue to diminish. In an age of increased awareness of the problems presented by drunk driving,^[1] encouragement of this trend by our court should be unthinkable.

I believe our court should recognize a common-law cause of action under these circumstances; however, the majority forestalls the adoption of this theory by resolving this case on a strained, and I believe erroneous, application of proximate cause principles.

II. The Proximate Cause Issue.

The majority holds that, even if we were to recognize a common-law cause of action, this would not help these plaintiffs because any negligence by the defendants could not, as a matter of law, be the proximate cause of the collision. As I understand the majority, it holds that the owner of the pickup would have entrusted his vehicle to this intoxicated minor even if the owner were not intoxicated. The driver was ejected from the bar as being too young, and because it was cold, the argument goes, the owner was somehow justified in giving his keys to the minor so he could run the pickup in the parking lot and keep warm while the owner stayed in the bar.

This is pure speculation. It is certainly not a conclusion compelled as a matter of law, as the majority seems to believe. In fact, I believe a reasonable fact finder would find just the opposite: that an owner acting reasonably under the circumstances would not give his keys to an intoxicated driver and invite him to operate his vehicle, either in the lot or on the streets. It is at least a question which a fact finder should be able to decide. It should not be decided by the court as a matter of law.

I believe the majority, by failing to give its imprimatur to a common-law cause of action, and by distorting our law of proximate cause, has created unfairness and confusion in the law, and I cannot be a part of it.

LAVORATO, J., joins this dissent.

[1] The district court impliedly found that no equal protection violation existed.

[2] We note, however, that we have often said that the dramshop act provides the exclusive remedy against those covered by the act: licensees and permittees. See, e.g., Slager, 435 N.W.2d at 352; Bauer v. Dann, 428 N.W.2d 658, 660 (Iowa 1988); Blesz v. Weisbrod, 424 N.W.2d 451, 452 (Iowa 1988); accord, Fuhrman, 398 N.W.2d 807 (no common law cause of action against permittees even for those acts falling outside the dramshop act); Connolly v. Conlan, 371 N.W.2d 832 (Iowa 1985) (same); see also Haafke v. Mitchell, 347 N.W.2d 381, 385 (Iowa 1984) (common law cause of action not preempted if act of permittee is not covered by the act). More importantly, this court has never said that a common law negligence action may be maintained against a licensee or permittee that provides alcohol to an intoxicated person in violation of Iowa Code section 123.49(1). See Snyder v. Davenport, 323 N.W.2d 225 (Iowa 1982) (dramshop act usurps a common law negligence action against a licensee grounded on the sale of intoxicants to an intoxicated person in violation of section 123.49(1)); see also Thorp, 446 N.W.2d at 464-65 (holding state liable under principles of respondeat superior for acts of its non-permittee-employee); Slager, 435 N.W.2d at 352; Haafke, 347 N.W.2d at 388; accord Bauer, 428 N.W.2d 658 (involving illegal sale to a minor); Fuhrman, 398 N.W.2d 807 (same); Connolly, 371 N.W.2d 832 (same); Lewis v. State, 256 N.W.2d 181 (Iowa 1977) (same).

[3] For purposes of this discussion, we assume, without deciding, that Giannetto did in fact "entrust" his truck keys to Bryant. However, we note that "entrust" has been defined as follows:

to commit or surrender something to another with a certain confidence regarding his care, use or disposal of it.... The term means more than naked possession or custody of, or access to, the property appropriated.

48A C.J.S. Intrust or Entrust, at 208 (1981) (emphasis supplied).

It has also been said that

[I]iability for the negligence of an incompetent or reckless driver to whom a motor vehicle is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate it....

7A Am.Jur.2d, Automobiles and Highway Traffic § 643, at 872 (1980) (emphasis supplied).

The depositions show that when Giannetto gave Bryant the keys to his truck, he told Bryant to wait in the truck and not to move it. This indicates that Giannetto merely gave Bryant access to his truck; he never "surrendered" it to him "to use or dispose of," nor did he give Bryant permission to operate it. Of course, this issue ultimately would be one for the trier-of-fact, especially in light of Bryant's testimony that Giannetto had allowed Bryant to drive his truck on previous occasions. See 57A Am.Jur. 2d, Negligence § 333, at 345 (1989).

[4] The parties dispute whether Giannetto was actually served at Boot Hill's tavern before or after he entrusted his truck to Bryant. For purposes of this appeal, we assume, without deciding, that Giannetto was in fact served before he surrendered his truck keys to Bryant.

[5] See Division VI of this opinion, below.

[6] Plaintiffs' petitions claim that both Boot Hill and Goulden fell below a standard of care by their actions. Plaintiffs' claim against Boot Hill is essentially grounded on principles of respondeat superior since Boot Hill was Goulden's employer.

[1] According to the President's Commission on Drunk Driving, in the ten years preceding the study, 250,000 people had been killed as the result of drunk drivers. This amounts to over half of the motor vehicle fatalities. Presidential Commission on Drunk Driving, Final Report, 1 (1986).

4.4.2.2.3 Lennox Chelcher v. Spider Staging Corp. ("The Defective Spider Rig Case") 4.4.2.2.3 Lennox Chelcher v. Spider Staging Corp. ("The Defective Spider Rig Case")

How does this court reach the conclusion that the defendant's alleged breach of duty was not a substantial cause of the plaintiff's injuries?

United States District Court for the District of the Virgin Islands

892 F. Supp. 710

Civ. No. 91-107

1995-06-15

LENNOX CHELCHER, et al., Plaintiffs, v. SPIDER STAGING CORP., Defendant.

Civ. No. 91-107.

District Court, Virgin Islands, D. St. Croix.

June 15, 1995.

*712Allan Christian, Fredericksted, St. Croix, VI, for plaintiffs.

Mark Milligan, Christiansted, St. Croix, VI, for defendant.

MEMORANDUM

MOORE, District Judge.

This matter is before the Court on the plaintiffs’ motion for partial summary judgment, filed June 5, 1995, and the defendant’s motion for summary judgment, filed May 19, 1995. Having carefully reviewed the parties’ submissions, the Court will deny plaintiffs’ motion and grant the defendant’s motion for the following reasons.

On May 17, 1989, plaintiff Lennox Chel-cher worked at sandblasting the top hemisphere of a spherical propane tank belonging to Hess Oil Virgin Islands (“HOVIC”) while employed by Industrial Maintenance Corporation (“IMC”). Working from movable, cage-like scaffold or “spider” allegedly manufactured by defendant Spider Staging Corporation (“Spider”), plaintiff Lennox Chelcher (“Chelcher”) allegedly sustained permanently disabling damage to his lower back from approximately five hours of sandblasting in an uncomfortable position. The spider scaffold 1 had been misrigged on the day in question by HOVIC and/or Chelcher’s employer, IMC, such that it did not hang plumb from its suspension wires, but rather dragged along the side of the spherical tank. This mis-rigging caused the floor-platform of the spider to tilt increasingly away from the horizontal as it progressed up the side of the tank. Having become fully aware of this situation, Chelcher nonetheless boarded the spider cage and sandblasted from its increasingly tilted platform for about five hours.

On October 17, 1994, the plaintiffs filed their third amended complaint in this action, alleging five redundant causes of action against Spider and Hess Oil Virgin Islands (“HOVIC”).2 As Count 1 asserts a *713cause of action against HOVIC, with whom plaintiffs have already executed a settlement and stipulation of dismissal,3 and Count 4 merely rehashes the causes of action alleged in the other counts, those two Counts will be dismissed. Count 5 alleges derivative causes of action, in the nature of loss of consortium, on behalf of Chelcher’s wife and children. The Restatement (Second) of ToRts § 693, which operates as the controlling law in this jurisdiction, approves such derivative actions on behalf of spouses.4 By contrast, section 707A rejects such derivative actions on behalf of minor children. Thus, Count 5 survives only insofar as it alleges a loss of consortium claim on behalf of plaintiff Pamela Chelcher; the minor children have no cause of action.

All other aspects of the plaintiffs’ complaint being dismissed herein, the instant summary judgment motions thus concern only Counts 2, 3, and 5 (insofar as Count 5 alleges a loss of consortium claim on behalf of Pamela Chelcher). Counts 2 and 3 allege causes of action against Spider in the nature of strict products liability and negligent failure to warn, respectively.

Standard for Summary Judgment

Under Rule 56(c), a moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions of file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Anderson and Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), instruct that a summary judgement motion must be granted unless the party opposing the motion can adduce evidence which, when considered in light of that party’s burden of proof at trial, could be a basis for a jury finding in that party’s favor. J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987).

For issues on which the movant would bear the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact. “If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the non-moving party ... come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993) (citation omitted); see, Anderson, supra, 477 U.S. at 249, 106 S.Ct. at 2510-11; Petrucelli v. Bohringer and Ratzinger et al., 46 F.3d 1298 (3d Cir. (Pa.) 1995).

For issues on which the non-movant would bear the burden of proof at trial, the movant may simply “point[ ] out to the district court ... that there is an absence of evidence to support the non-moving party’s case.” Fitzpatrick, supra, at 1116. Once the movant has done this, the non-movant must identify evidence of record sufficient to establish a genuine issue for trial with respect to every element essential to its claim or, as in this case, defense. Moreover, the mere existence of some evidence in support of the non-moving party will not be sufficient to withstand summary judgment; rather, there must be enough evidence to enable a jury reasonably to find for the non-moving party on the issue. Witco Corp. v. Beekhuis, 38 F.3d 682, 686 (3d Cir.1994). The nonmoving party “may not rest upon the mere allega*714tions or denials of Ms [or her] pleadings, but his [or her] response ... must set forth specific facts showing that there is a genuine issue for trial.” Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1178 (3d Cir.1994) (citing Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985).

For the purpose of strict liability, the Court must determine if a genuine issue of fact exists regarding whether (1) Spider’s product was manufactured in a defective condition (2) such that it was unreasonably dangerous to the user and whether it (3) was the factual and proximate (legal) cause of injury (4) without having been substantially changed from the condition in wMch it was sold. Additionally, the Court must consider whether a genuine issue of fact exists regarding Spider’s claimed defenses to liability.

Regarding the negligence claim, the Court must determine whether a genuine issue of fact exists with respect to: (1) a duty of care owed to Chelcher, (2) a breach of that duty by Spider, wMch (3) was the factual and proximate (legal) cause of (4) damages to Chelcher.

A. Count 2: Strict Products Liability

Plaintiffs argue that the scaffold manufactured by Spider was defectively designed insofar as neither the operator’s manual nor an “SSFI/SIA”5 warning label, directing all users to consult with their employers regarding the operator’s manual, were permanently affixed to the spider.

Spider submitted documentary and affidavit evidence that a warning label was in fact affixed to the spider unit used by Chelcher when it left the factory, which is confirmed by such labels appearing on at least one of the scaffolds on the HOVIC worksite. See, Def.App. Ex. 15; Ex. 6; Ex. 16; Ex. 17. The evidence also shows that the warning labels on some of the Spider scaffolds on the HOVIC worksite had been painted over by the date of the injury. Id; see also, Chel-cher Dep. (No. 2) 27-28. Plaintiffs’ evidence to the contrary consists solely of Chelcher’s somewhat hazy memory and photographs of an allegedly similar spider scaffold taken some three years after the date of injury. Thus, plaintiffs’ evidence that the spider used by Chelcher bore no warnings, or that any lack of warnings was due to Spider rather than some subsequent actor, is weak and tenuous at best.

For the purpose of its summary judgment motion, defendant has put forward a number of arguments which will be considered in light (1) of the lack of evidence to prove the elements of plaintiffs’ claim and (2) of defendant’s evidence in support of its affirmative defense that Chelcher assumed the risk of Ms injuries.

1. Absence of Evidence to Support Claim

Regarding the first and second elements, manufacture of the spider in a defective condition due to failure to warn, which defect rendered it unreasonably dangerous to its user, the Court can only express its doubt about the sufficiency of plaintiffs’ evidence. The operator’s manual produced by Spider to accompany its product warns of dangers in the nature of falling off or getting entangled in the supporting cables and wires which might accompany the misuse of its product. Plaintiffs assert that a failure to attach the manual to the spider-hoist itself was a product defect that could have rendered it unreasonably dangerous to its user.

The third and crucial element of a strict liability claim is causation. The first prong of causation plaintiffs must prove is whether the alleged product defect, a failure to affix an instruction manual to the scaffold, was a cause-in-fact of Chelcher’s injuries. Murray v. Fairbanks Morse, 610 F.2d 149, 160 (3d Cir.1979). Strict liability premised upon a failure to warn requires the plaintiff *715to show that proper warnings would have prompted safe behavior. See, Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 492 (1985). Plaintiffs’ argument in this regard rests upon the hypothetical assertion that the sight of a pietogram depicting a man falling off a scaffold would have prompted Chelcher to ask his employers to read to him from the instruction manual. Plaintiffs’ theory must be that this information would have prevented the injury by giving Chelcher information that would have caused him not to begin or to continue sandblasting.6

The Court’s difficulty with plaintiffs’ proposition is that it is hard to conceive how Chelcher’s injuries would have been prevented even if the alleged defect had been remedied by providing the warnings plaintiffs claim were not attached. In other words, for a jury to conclude that the spider in question in fact caused Cheleher’s injuries, it would first have to assume that an alternative “design,” i.e., the availability on the spider of warnings and instructions, would have caused Chelcher to act differently. In order to submit the question of eause-in-fact to the jury in a failure to warn strict liability case, the Court must first determine that there is sufficient evidence to support a reasonable inference that an adequate warning would have prevented injury.7

Chelcher had worked on similar, if not identical scaffolds, for approximately three years before he proceeded to sandblast the tank from the spider on the morning May 17, 1989. In these circumstances, the Court can find no credible evidence that Spider’s alleged failure to warn could have caused Chel-cher’s injury. First, plaintiffs’ claim that a pietogram depicting a man falling from a scaffold would have caused him to request access to information in the owner’s manual is highly speculative. Second, the assertion that Chelcher would have acted differently that morning, upon seeing a pietogram, is belied by the fact that he proceeded to sandblast on the day of his injury despite the absence of the job-site safety inspector and despite the obvious mis-rigging of the spider. Third, plaintiffs have presented no credible evidence from which reasonable jurors could conclude that information in the safety manual would have prevented Chelcher’s injury; although the manual admonishes users to keep the spider vertical to avoid accidents, it does not warn that back strain is a likely consequence of prolonged use of a leaning spider.

The second prong of the causation element is whether the alleged defect, Spider’s failure to warn or affix an instruction manual to the spider cage, was the proximate or legal cause of Chelcher’s injuries.8 Spider’s conduct is a proximate, or legal, “cause of harm to another if ... [its] conduct is a substantial factor in bringing about the harm.” Restatement (Seoond) of ToRts § 431(a). Even if we had found Spider’s conduct to have been a factual (but for) cause of the harm, we would find that plaintiffs failed to show it was a proximate cause of Chelcher’s injuries. The use of the phrase “substantial” in the Restatement and the case law demonstrates that there is no litmus test for causation; rather, proximate causation, and hence liability, “hinges on principles of responsibility, not physics.” Van Buskirk, 760 F.2d at 492; Restatement (Seoond) of ToRts § 431, cmt. a.

Section 433(a) of the Restatement directs a court to consider “the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it.” Section 434 notes that a *716determination of proximate causation properly lies within the province of the court when, as here, reasonable minds cannot differ. Weighing all the evidence put forth by both parties and accepting arguendo plaintiffs’ factual allegations regarding Spider’s failure to warn, the Court finds that said failure could not have been a substantial factor in bringing about Cheleher’s injuries. HOV-IC’s and IMC’s mis-rigging of the scaffold,9 their failure to supervise the worksite, and their request that Chelcher proceed in his sandblasting, and his ready acquiescence despite the absence of the safety inspector, were all substantial contributing factors in causing his injury. The combined effect of these contributing factors had such a predominant impact and so diluted Spider’s contribution, if any, as to prevent it from being a substantial factor in producing the harm to Chelcher. As no reasonable jury could conclude that Spider’s alleged failure to warn was the proximate cause of Cheleher’s back pain, Spider is not liable in tort to plaintiffs.

Regarding the fourth element of the 402A claim, plaintiffs have not shown that the spider was in substantially the same condition on the date of injury as on the date it was sold.10 Their expert engineer’s report confirms that his conclusions are based solely upon photographs of a spider which plaintiffs allege to be the same as other spiders in IMC’s possession on the date of the injury. Plaintiffs’ App.Ex. J. These photographs, taken in August of 1992, some three years after the date of the injury, can not represent the condition of the scaffold used by Chelcher in May of 1989, nor are they probative of the question whether the spider was in substantially the same condition on the date of injury as on the date it was sold. Accordingly, no evidence has been presented that would allow reasonable jurors to conclude that the scaffold in question was substantially unaltered, on May 17, 1989, from the condition in which it was sold,11 and plaintiffs have failed to carry their burden regarding the fourth element of their 402A claim.

Fortunately, the Court need not, and does not, rely solely on the weakness of plaintiffs’ evidentiary showing to grant summary judgment in favor of the defendant. As discussed below, Chelcher clearly assumed the risk of continuing to sandblast while in pain, thereby consenting to the consequences of that activity.

2. Defenses to Liability

Spider asserts two affirmative defenses which deserve the Court’s attention, assumption of the risk and lack of proximate cause. We have already found lack of proximate cause in discussing the elements of plaintiffs’ 402A claim. The availability of the assumption of risk defense to action under section 402A may seem a bit murky in the aftermath of the adoption in V.I.Code Ann. tit. 5, § 1451, of the Virgin Islands “Comparative Damages” statute.

a. Assumption of Risk

We start with the recognition under the Restatement that

the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under [sec*717tion 402A] as in other cases of strict liability. If the user ... discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.

RESTATEMENT (SECOND) OF TORTS, § 402A, emt. n; accord § 524(2). Since the Restatements of Law are the law in the Virgin Islands unless local statute or decision is to the contrary,12 we now look to see if the above gloss on section 402A has been modified by legislative or court decision.

In a case arising not long after enactment of our Comparative Damages statute, 5 V.I.C. § 1451, a plaintiff injured instantly by a latent defect of a product brought suit under section 402A. Affirming on appeal, the United States Court of Appeals for the Third Circuit qualified this Court’s dicta13 seeming to apply the comparative principles of section 1451 to the Restatement’s assumption of risk principles:

Although the elimination of assumption of risk as a complete bar to recovery may be consistent with a proper allocation of the loss in strict liability eases, we need not consider the contours of the assumption of risk defense because there is no evidence in this ease that Murray in any way voluntarily proceeded to encounter a known defect.

Murray, 610 F.2d at 162.

Distinguishable from the instant facts, an injury caused by an obvious condition taking place over five hours, the Murray case does not foreclose the assumption of risk defense in 402A cases. The instant case thus provides an opportunity to address the “contours of the assumption of risk defense” as they relate to section 402A. We would agree that “when conduct amounts to a voluntary waiver or consent the absolute bar to recovery should remain” available to a defendant in a section 402A strict liability action. Keegan v. Anchor Inns, Inc., 606 F.2d 35, 40 (3d Cir.1979).14 We find this analysis especially appropriate in the products liability arena to preserve the bar to recovery against a plaintiff who “discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it,” thereby releasing a manufacturer from the consequences of otherwise tortious conduct.

The Court must then decide whether plaintiff Lennox Chelcher’s conduct on May 17, 1989 can be fairly characterized as negligent (and thereby not barred, id.) or whether it alternatively provides the Court a basis to infer consent or waiver. Chelcher had worked on the same equipment without incident for a number of years before the day he sustained his injuries. Chelcher Dep. at 20. When Chelcher began sandblasting from the scaffold on the morning of May 17, 1989, he felt an immediate strain and pain in his lower back, according to plaintiffs caused by the recoil force of the sandblasting hose and Chelcher’s stance on the tilted spider scaffold. Despite this pain, he continued working on the platform for a significant amount of time, somewhere between four and five hours. Plaintiffs’ App.Ex. I. Plaintiffs’ medical expert concluded that Chelcher’s “present condition is the result of his having worked in an awkward and unphysiological [sic] position maintained for a period long enough to cause him harm to his back.” Plaintiffs’ App.Ex. G. (emphasis added). Plaintiffs’ other medical expert concluded that his condition was “not uncommon in an individual ... doing the type of work that he was doing for the extended period of time that he was doing it.” Plaintiffs’ App.Ex. I.

*718The evidence incontrovertibly establishes that Chelcher’s injury was caused, not in an instant (as in the Murray case), but rather over the course of five hours’ voluntary exertion. Since Chelcher has admitted that he first felt pain when he began blasting, the Court concludes that the danger of continuing to work in such an uncomfortable position then became known and obvious to him, and that by thereafter continuing to blast, he unreasonably assumed the risk of further injury. Chelcher’s willingness to continue working for five hours after becoming aware of the pain can only be deemed an expression of consent to the consequences or, alternatively, a waiver of Spider’s liability for any dangers allegedly caused by its product. Accordingly, this case falls properly within the ambit of the doctrine which allows a plaintiffs voluntary encounter of a known and obvious risk to bar a tortfeasor’s liability.

B. Count 3: Negligent Failure to Warn

The Court’s finding that Spider’s alleged negligence was neither a cause-in-fact nor proximate cause of Cheleher’s injuries precludes liability under both strict liability and negligence theories. Even in the absence of that finding, however, the plaintiffs’ negligence claim would be dismissed for failure to offer sufficient evidence on the essential elements of breach and causation as well as on the grounds of assumption of risk.

Plaintiffs must identify evidence of record sufficient to establish a genuine issue for trial with respect to every element essential to its negligence claim. Plaintiffs must show that Spider had a duty to warn Chelcher of the danger of using its product in a tilted position, that Spider breached that duty, that Spider’s breach caused Chelcher’s injuries, and that Chelcher in fact suffered injuries proximately as a result of Spider’s breach. Moreover, the mere existence of some evidence in support of plaintiffs’ case will not be sufficient to withstand summary judgment; rather, there must be enough evidence to enable a jury reasonably to find for plaintiffs on the issue. Witco Corp. v. Beekhuis, 38 F.3d 682, 686 (3d Cir.1994).

As noted above, plaintiffs have failed to provide the necessary quantum of evidence to support a reasonable jury’s finding that Spider’s alleged breach of its duty was a cause-in-fact or proximate (legal) cause of Chelcher’s injuries, although plaintiffs have provided marginally sufficient evidence for a jury to conclude that the spider used by Chelcher bore no warnings.

The assumption of risk analysis set forth above applies with equal force to a negligence claim. See, Keegan, 606 F.2d at 40. The Court has determined that Chelcher’s knowing and voluntary conduct on May 17,1989 amounted to a consent or waiver to any negligent action which might be imputed to Spider. Assumption of risk in this “primary” sense has not been foreclosed in negligence actions by 5 V.I.C. § 1451. Id. at 41. Accordingly, summary judgment also will be granted in favor of defendant with respect to Count 3, plaintiffs’ negligence claim.

C. Count 5: Loss of Consortium

As Pamela Chelcher’s consortium claim derives solely from the claims of her husband, Lennox Chelcher, it will also be denied.

Conclusion

For the foregoing reasons, neither Chel-cher nor his wife may succeed in an action against the manufacturer of the spider scaffold. An order granting summary judgment in favor of Spider is attached.15

ORDER

For the reasons set forth in the attached Memorandum, it is hereby

ORDERED that plaintiffs’ motion for partial summary judgment is DENIED. It is further

ORDERED that defendant’s motion for summary judgment is GRANTED and this case is accordingly CLOSED.

. The Court notes that counsel for both parties have largely failed to present argument on the legal standards relevant to this case. Not only has this dereliction of professional duty impeded this Court's progress, but also, in certain extreme situations, forced the Court to extrapolate what counsel had in mind from the skeletal arguments presented. For example, the following represents the negligence Count alleged by plaintiffs in their third amended complaint:

23. Defendant SPIDER was negligent in both the design of the equipment, failure to warn, and the instructions or lack thereof that were *713provided with the equipment in that the equipment was not the type of equipment which should have been used for the job in question even though the defendant SPIDER indicated that it could be so used.

The factual inaccuracies and inadequacies in the complaint were not remedied in the least in later pleadings. Even the Joint Final Pre-Trial Order failed to elucidate plaintiffs' causal theory.

4.4.2.3 Scope of the Risk 4.4.2.3 Scope of the Risk

Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. See, e.g., ibid.; 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 29, p. 493 (2005) (hereinafter Restatement). A requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity.

Paroline v. U.S., 572 U.S. 434 (2014)

4.4.2.3.1 Restatement Third, Section 29, On Proximate Cause 4.4.2.3.1 Restatement Third, Section 29, On Proximate Cause

An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious.

Restatement (Third) of Torts: Phys. & Emot. Harm § 29 (2010)

4.4.2.3.2 Hale v. Brown ("The Follow-On Accident Case") 4.4.2.3.2 Hale v. Brown ("The Follow-On Accident Case")

Why does this Kansas court reject the third restatement's approach to proximate cause? Is that the right decision?

Kansas Court of Appeals

38 Kan. App. 2d 495, 167 P.3d 362

No. 97,232

2007-09-21

(167 P.3d 362)

No. 97,232

Mary A. Hale, Appellant, v. Judy K. Brown, Defendant, and Jason R. Packard and Topeka Electric Construction, Inc., Appellees.

Opinion filed September 21, 2007.

Paul D. Post, of Topeka, for appellant.

Gregory S. Young, of Hinkle Elkouri Law Firm L.L.C., of Wichita, for appellees.

Before Malone, P.J., Buser and Leben, JJ.

Leben, J.:

Accepting plaintiff s allegations as true, Jason Packard’s negligence caused his car to run off a highway in Topeka and into a tree some distance off the paved surface of the roadway and its shoulder area. Emergency workers arrived shortly after the accident, and traffic on the roadway began to back up. About 35 minutes after Packard’s accident, another driver, Judy Brown, failed to respond quickly enough to the traffic congestion; Brown’s car struck the plaintiff s car from behind. Plaintiff, Mary Hale, now seeks to recover from Packard and his employer for the injuries she sustained when Brown’s car hit Hale’s. But liability for negligence is not unlimited — longstanding caselaw holds that liability for negligence arises only when the consequences of an act are probable under normal human experience, not a mere possibility. Applying this rule, we agree with the district court that Packard’s negligence is not sufficiently connected to Brown’s negligent driv*496ing to allow Hale to recover from Packard or his employer for her injuries.

We assume the facts stated by the plaintiff are true because we must. Like the district court, on a motion to dismiss, we must accept the facts that the plaintiff has alleged; we must then determine whether those facts and any inferences reasonably drawn from them state a claim for relief under any possible legal theory. Jones v. State, 279 Kan. 364, 366, 109 P.3d 1166 (2005). The only legal theory discussed by the parties is negligence, and we find no other possible legal theoiy on these facts. Thus we examine the viability of plaintiff s claim for negligence.

Packard’s negligence, if indeed he was negligent, was most unfortunate. He felt lightheaded and considered pulling over but instead continued to drive along the highway toward his home. He soon passed out, drove off the road, and ran into a tree. The highway was 1-470 in Topeka; the accident occurred at 4:57 p.m. on a weekday. As might be expected at that time on a weekday, traffic backed up in the area once the police and an ambulance were on the scene. Judy Brown’s collision with plaintiff Hale’s car occurred at about 5:35 p.m., and Hale was injured.

A valid negligence claim requires that a plaintiff meet four elements: the existence of a duty to the plaintiff, a breach of that duty, an injuiy, and proximate cause. D.W. v. Bliss, 279 Kan. 726, 734, 112 P.3d 232 (2005). The disputed element here is proximate cause. Proximate cause requires more than mere cause in fact. A proximate cause is one that caused the injury “ ‘in natural and continuous sequence, unbroken by an efficient intervening cause, . . . the injuiy being the natural and probable consequence of the wrongful act.’ ” Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006) (quoting St. Clair v. Denney, 245 Kan. 414, 420, 781 P.2d 1043 [1989]).

Just how likely a consequence must be for it to be considered a “natural and probable consequence” of an act has been stated in a number of ways. The most frequently cited standard in Kansas holds that “[a] defendant is not responsible for all possible consequences of his or her negligence, only those consequences which are probable according to ordinaiy and usual experience.” (Em*497phasis added.) Aguirre v. Adams, 15 Kan. App. 2d 470, 472, 809 P.2d 8 (1991). Accord Sly v. Board of Education of Kansas City, 213 Kan. 415, 424, 516 P.2d 895 (1973); Hickert v. Wright, 182 Kan. 100, 108, 319 P.2d 152 (1957); Shideler v. Habiger, 172 Kan. 718, 722, 243 P.2d 211 (1952); Beldon v. Hooper, 115 Kan. 678, 683, 224 Pac. 34 (1924); Clark v. Powder Co., 94 Kan. 268, 273-74, 146 Pac. 320 (1915). Although this foreseeability test is stated in terms of events that are “probable,” proximate cause may sometimes be found even for events likely to occur less than half the time, especially when the defendant has created a particularly dangerous condition. See, e.g., Wahwasuck v. Kansas Power & Light Co., 250 Kan. 606, 610-12, 828 P.2d 923 (1992); Cooper v. Eberly, 211 Kan. 657, 665, 508 P.2d 943 (1973). Even so, as one court has phrased it, the consequence must occur “with reasonable probability from the negligent act of the defendant.” Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1303 (7th Cir. 1995). Like many tests found in law, the rule provides a general standard, but its contours must be filled in as specific cases are considered.

A viable argument can be made in this case for the plaintiff. The starting point for that case is the general rule that proximate cause is normally a question for the juiy. Miller v. Zep Mfg. Co., 249 Kan. 34, 50, 815 P.2d 506 (1991). So in most cases the application of this liability-limiting rule will be left to the jury. It is only when the evidence is so clear that it is “susceptible of only one inference” that proximate cause is treated as a question of law for the court and is not submitted to the jury. Cullip v. Domann, 266 Kan. 550, 556, 972 P.2d 776 (1999).

Further, a Kansas Supreme Court case suggests that the class of cases that should be decided as a matter of law has been narrowed in recent decades by the adoption in Kansas of comparative fault principles in 1974. Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, 268-69, 43 P.3d 799 (2002). Under prior law, the existence of some fault on the part of the plaintiff, called contributory negligence, barred recovery altogether. In response, courts sometimes found that a plaintiff s fault was not the proximate cause of the injury, lessening the harshness of what was then an all-or-nothing recovery. Similarly, when multiple defendants were in*498volved, one’s acts might be found the sole proximate cause — or one’s negligence might be labeled “active” and the other’s “passive” — so as to avoid rules that otherwise would have required equal contribution between them. When comparative fault was adopted, the fact-finder could compare and apportion the fault of all parties and, in Kansas, the plaintiff could recover as long as his or her fault was less than 50 percent. Based on this, the court in Reynolds said that “[w]ith the adoption of comparative fault, Kansas has moved beyond the concept of proximate cause in negligence.” 273 Kan. at 269.

As we understand it, that statement did not mean that proximate cause was no longer a requirement of a negligence claim in Kansas. The court separately recognized that “[p]roximate cause is not an obsolete concept in Kansas law,” 273 Kan. at 268, and that intervening causes still would cut off liability in “extraordinary cases.” 273 Kan. at 269. And both the Supreme Court and our court have continued to cite and apply proximate cause as an element of negligence claims after Reynolds. See, e.g., Yount 282 Kan. at 624-25; D.W. 279 Kan. at 734; Williamson v. City of Hays, 275 Kan. 300, Syl. ¶ 6, 64 P.3d 365 (2003); Crowe v. True’s IGA, 32 Kan. App. 2d 602, 612-13, 85 P.3d 1261, rev. denied 278 Kan. 844 (2004); Miller v. Westport Ins. Corp., No. 95,768, unpublished opinion, filed February 16, 2007, rev. granted June 21, 2007 (review pending). But the Reynolds court was acknowledging what others have called “the logic that changing to a regime of comparative responsibility affects the scope of proximate cause.” Restatement (Third) of Torts: Liability for Physical Harm, § 34, comments, p. 682 (Proposed Final Draft No. 1, 2005).

Consistent with this potentially diminished role for proximate cause, an example provided in the latest Restatement of Torts supports plaintiff s claim. The American Law Institute approved the Restatement (Third) of Torts: Liability for Physical Harm in 2005. Under section 29 of the Third Restatement, the black-letter rule for proximate cause (a term the Restatement avoids) is that “[a]n actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” Restatement (Third) of Torts § 29, p. 575 (Proposed Final Draft No. 1, 2005). *499The Restatement sets forth the view that the distraction arising around an accident scene is within the risks that should be anticipated by a negligent driver:

“Tortious conduct may be wrongful because of a variety of risks to a number of different classes of persons. Thus, driving a vehicle negligently poses risks to persons and property who might foreseeably be harmed in a number of ways— by a collision with another vehicle or pedestrian, by the vehicle leaving the road, by the consequences of a narrowly averted collision, by the confusion and distraction of an accident scene, or by other consequences. Some of those risks may be more prominent than others, but all are relevant in determining whether the harm is within the scope of liability of the actor’s tortious conduct.” (Emphasis added.) Restatement (Third) of Torts § 29, comment d, p. 582.

The Restatement then provides an example quite similar to the case now before us:

“[Illustration] 6. Parker’s automobile was run off a narrow, hilly road by Wilson, who was driving a semitrailer negligently. Because the accident scene involved an unusual configuration of the semitrailer and Parker’s vehicle, Deborah, who was driving by, stopped her car at the side of the road to observe the scene. While parked at the side of the road, Deborah was hit by another vehicle driven carelessly into Deborah’s car. Whether Deborah’s harm is within the scope of liability created by Wilson’s negligence in causing the accident with Parker is a question for the factfinder.” Restatement (Third) of Torts § 29, comment d, illus. 6.

Under the view of Third Restatement, then, a plaintiff injured in a follow-on accident apparently caused by the distraction of an earlier accident would be able to sue the negligent driver of the first accident and have that claim submitted to a jury.

Where to draw the fine under legal rules that lack bright-line clarity is a matter of judgment. We do not hide the existence of that judgment call here by presenting only one side of the argument. Rut though we have sketched out some viable arguments for the plaintiff, we do not find them persuasive.

The Third Restatement view may one day gain acceptance, but even its authors concede that they have staked out a basis of analysis that is different than the one actually employed by the courts today (or for the past 100 years for that matter). The Restatement reporters recognized that they have proposed a scope-of-risk analysis — rather tiran the standard foreseeability test applied in Kansas and most other states — for proximate cause. Restatement (Third) *500of Torts § 29, comments d and j, pp. 579-81, 594-96 & Reporters’ Notes to comments d and j, pp. 610-14, 627-29 (Proposed Final Draft No. 1, 2005). And while they suggest that these different standards are “quite compatible,” Restatement (Third) of Torts § 29, Reporters’ Note to comment d, p. 610, they do not suggest they are the same.

Significantly, no case citation is provided as a basis for the Restatement’s Illustration 6. This is not because cases involving follow-on automobile accidents are scarce — there were enough cases for a lengthy compilation limited to the proximate-cause issue in follow-on auto accidents back in 1958, and a supplement to that collection lists many cases since then. Annot., Negligence Causing Automobile Accident, or Negligence of Driver Subsequently Approaching Scene of Accident, as Proximate Cause of Injury by or to the Approaching Car or its Occupants, 58 A.L.R.2d 270 (1958 & Supp. 2003).

The annotator correctly notes that it is difficult to wrest general rules from these fact-specific cases that will universally predict the results. 58 A.L.R.2d 270 § 2. Yet the general trend in the cases cited there does not support the conclusion of Illustration 6, and the cases certainly do not support a finding of proximate cause in Hale’s case here against Packard.

Two major factors seem to provide fault lines for the cases in the annotation. First, in the cases finding proximate cause, there generally was some debris from the first accident still blocking the roadway, while there was not in the cases finding no proximate cause. Compare Morrison v. Frito-Lay, Inc., 546 F.2d 154, 163 (5th Cir. 1977) (finding that the act of parking a truck partially on the roadway could serve as proximate cause both for one car hitting the truck and a second accident in which two odrer cars collided while trying to avoid the first accident); Anderson v. C.E. Hall & Sons, Inc., 131 Conn. 232, 238, 38 A.2d 787 (1944) (finding that the first accident could be proximate cause for the second when the first accident left the vehicle crosswise on the highway); Johnson v. Sunshine Creamery Co., 200 Minn. 428, 433-34, 274 N.W. 404 (1937) (finding that the first accident, which left two vehicles blocking the highway, could be proximate cause for the second *501accident) with Atkinson v. Allstate Ins. Co., 361 So. 2d 32, 34 (La. App. 1978) (finding that the first accident was not cause for the second when the vehicles in the first accident were off the roadway before the second accident occurred); Natell v. Taylor-Fichter Steel Construction Co., 257 App. Div. 764, 765-66, 15 N.Y.S.2d 327 (1939) (finding that since cars in the first accident had come to rest off the traveled portion of the highway it was not proximate cause of the second accident), aff'd 283 N.Y. 737, 28 N.E.2d 966 (1940); Kukacka v. Rock, 154 Ore. 542, 545-46, 61 P.2d 297 (1936) (finding negligence of the driver whose car ended up in a ditch not proximate cause of the accident in which the passenger who went onto the roadway to wave for help was struck by another vehicle). Second, in the cases finding proximate cause, there generally was only a short time gap between the first accident and the follow-on accident, while in the cases finding no proximate cause there was a substantial time lapse between them. Compare Sawdey v. Producers’ Milk Co., 107 Cal. App. 467, 480, 290 P. 684 (1930) (finding that a 3-minute gap between accidents did not eliminate proximate-cause question); and Anderson, 131 Conn. at 238-39 (finding that a gap of 2 to 4 minutes between accidents did not ehminate proximate-cause question); and Krumvieda v. Hammond, 71 S.D. 544, 548-49, 27 N.W.2d 583 (1947) (finding that 2 minutes lapsed time between the first and second accidents did not take proximate-cause issue away from jury consideration) with Millirons v. Blue, 48 Ga. App. 483, 484-85, 173 S.E. 443 (1934) (finding that the first accident was not proximate cause of the second accident occurring 20 minutes later when the damaged vehicle was on the roadway with fights on); and Anderson v. Jones, 66 Ill. App. 2d 407, 411-12, 213 N.E.2d 627 (1966) (finding that a gap of 3 to 10 minutes between accidents was an important factor in finding no proximate-cause relationship between them). But see Johnson, 200 Minn. 428 (finding that 1-hour gap did not ehminate proximate-cause relationship when disabled vehicles continued to block the roadway at the time of the second collision). Thus the cases that are found in the annotation suggest that liability would not arise for a follow-on accident to one that did not block the roadway and that occurred quite some time earlier. And that’s our case.

*502The two cases most prominently relied upon by Packard and his employer are fully in line with this analysis. One of the cases involved an initial one-car accident in which the car ran off the roadway, ending up in the untravelled median. O’Connor v. Nigg, 254 Mont. 416, 417-18, 838 P.2d 422 (1992). Passers-by stopped to render assistance, and a highway patrol trooper also arrived; all of them left their vehicles off the traveled portion of the roadway. About 10 minutes after the first accident, a car traveling on the roadway rear-ended another car, even though the lane was unobstructed and the patrol car’s lights were flashing. The Montana Supreme Court held that the initial accident could not be considered a proximate cause of the second one because it was not sufficiently probable to be foreseeable. 254 Mont. at 421. The other case involved a second accident that occurred 20 to 45 minutes after the first one when an inattentive driver ran into an officer directing traffic around the first collision. Williams v. Smith, 68 N.C. App. 71, 73, 314 S.E.2d 279 (1984). The North Carolina Court of Appeals held that there was not an unbroken connection between the initial accident and the striking of the officer; it also held that the second driver’s negligence was not foreseeable in this situation. 68 N.C. App. at 73. Collectively, these cases support the conclusion of the district court in our case that follow-on accidents caused by the distraction of an initial wreck or inattention of a later driver are not sufficiently probable to support probable cause: “Rear end collisions, although a foreseeable possibility from such a slow-down of traffic, are not a likely or probable consequence at each one.’’

The district court also fairly concluded that the primary cases relied upon by plaintiff Hale were readily distinguishable. These cases generally involved disabled vehicles that remained in the road and were then directly involved in a second accident. See Flaharty v. Reed, 167 Kan. 319, 205 P.2d 905 (1949) (finding that defendant’s parked car, which obstructed a highway lane, was the proximate cause of a pedestrian’s injuries when another vehicle struck the parked car); Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962) (finding the driver’s negligence in an initial accident that left one of two vehicles in the roadway and another immediately behind it *503on the shoulder was the proximate cause of a second accident involving a drunk driver); and Hill v. Wilson, 216 Ark. 179, 224 S.W.2d 797 (1949) (finding a truck driver’s unexpected stop in the roadway was the proximate cause of an accident between two vehicles following the truck). These cases are consistent with those we have already discussed and thus do not suggest a different result.

One final consideration leads us to follow this existing caselaw rather than the new academic theory found in the Third Restatement. The adoption of a new theory that would subject large numbers of additional drivers to jury trials for follow-on accidents would have substantial real-world costs. Lawsuits are intrusive and expensive. Here, Packard would be subjected to interrogatories, requests for documents, and deposition. His medical records would be combed for signs that he should have anticipated blacking out while driving. And there would be no possibilities for resolution of the suit other than jury trial or settlement. Considering both these realities and existing caselaw, we believe that a plurality of the Texas Supreme Court got it right when they “decline[d] the invitation to abandon decades of case law” by adopting section 29 of the Third Restatement. Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 452 n.4 (Tex. 2006).

We do not believe that the average Kansan whose negligence caused her own car to run completely off the roadway would expect to be fiable to someone injured 35 minutes later when a third driver was distracted by the commotion. Nor should she. Such an event is not sufficiently foreseeable for liability under traditional foreseeability analysis, which is fully consistent with commonsense expectations. The judgment of tíre district court granting defendants’ motion to dismiss is therefore affirmed.

4.4.2.3.3 Thompson v. Kaczinski ("The Windy Trampoline Case") 4.4.2.3.3 Thompson v. Kaczinski ("The Windy Trampoline Case")

Iowa Supreme Court

774 N.W.2d 829

No. 08-0647

2009-11-13

Charles W. THOMPSON and Karyl J. Thompson, Appellants, v. James F. KACZINSKI and Michelle K. Lockwood, Appellees.

No. 08-0647.

Supreme Court of Iowa.

Nov. 13, 2009.

*831Randy V. Hefner and Matthew J. Hemphill of Hefner & Bergkamp, P.C., Adel, for appellants.

Sharon Soorholtz Greer and Melinda G. Young of Cartwright, Druker & Ryden, Marshalltown, for appellees.

HECHT, Justice.

A motorist lost control of his car on a rural gravel road and crashed upon encountering a trampoline that had been displaced by the wind from an adjoining yard to the surface of the road. He and his spouse sued the owners of the trampoline. The district court granted summary judgment, concluding the defendants owed no duty to the motorist under the circumstances and the personal injuries resulting from the crash were not proximately caused by the defendants’ alleged negligence. As we conclude the district court erred in granting summary judgment, we reverse and remand this case for trial.

I. Factual and Procedural Background.

James Kaczinski and Michelle Lockwood resided in rural Madison County, near Earlham, on property abutting a gravel road. During the late summer of 2006, they disassembled a trampoline and placed its component parts on their yard approximately thirty-eight feet from the road. Intending to dispose of them at a later time, Kaczinski and Lockwood did not secure the parts in place. A few weeks later, on the night of September 16 and morning of September 17, 2006, a severe thunderstorm moved through the Earlham area. Wind gusts from the storm displaced the top of the trampoline from the yard to the surface of the road.

Later that morning, while driving from one church to another where he served as a pastor, Charles Thompson approached the defendants’ property. When he swerved to avoid the obstruction on the road, Thompson lost control of his vehicle. *832His car entered the ditch and rolled several times. Kaczinski and Lockwood were awakened by Thompson’s screams at about 9:40 a.m., shortly after the accident. When they went outside to investigate, they discovered the top of their trampoline lying on the roadway. Lockwood dragged the object back into the yard while Kaczin-ski assisted Thompson.

Thompson and his wife filed suit, alleging Kaczinski and Lockwood breached statutory and common law duties by negligently allowing the trampoline to obstruct the roadway. Kaczinski and Lockwood moved for summary judgment, contending they owed no duty under the circumstances because the risk of the trampoline’s displacement from their yard to the surface of the road was not foreseeable. The district court granted the motion, concluding Kaczinski and Lockwood breached no duty and the damages claimed by the plaintiffs were not proximately caused by the defendants’ negligence. The Thomp-sons appealed. We transferred the case to the court of appeals, which affirmed the district court’s ruling. We granted the Thompsons’ application for further review.

II. Scope of Review.

We review a district court’s grant of summary judgment for correction of errors at law. Iowa R.App. P. 6.907; Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836, 840-41 (Iowa 2005). Summary judgment is appropriate only if there is “no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). The party seeking the summary judgment has the burden of proof, and the court considering a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party. Clinkscales, 697 N.W.2d at 841.

It is well-settled that “questions of negligence or proximate cause are ordinarily for the jury,” and “only in exceptional cases should they be decided as a matter of law.” Id.; see also Virden v. Betts & Beer Constr. Co., 656 N.W.2d 805, 807 (Iowa 2003) (noting summary judgment is usually inappropriate in negligence cases).

III. Discussion.

A. Iowa Code Section 318.3. The Thompsons contend Kaczinski and Lockwood breached a statutory duty to avoid obstructing a highway right-of-way. See 2006 Iowa Acts ch. 1097, § 3 (codified at Iowa Code § 318.3 (2007)). Section 318.3 provides a person “shall not place, or cause to be placed, an obstruction within any highway right-of-way.” An “obstruction” is defined as “an obstacle in the highway right-of-way or an impediment or hindrance which impedes, opposes, or interferes with free passage along the highway right-of-way.” Iowa Code § 318.1(4). It is undisputed that the defendants’ trampoline was in the road and that the defendants did not intend for the trampoline to be there at the time of the crash. The district court concluded that because the defendants’ failure to secure their trampoline and prevent its displacement to the roadway was unintentional, their actions did not violate the statute. The Thomp-sons contend this was error and that the phrase “cause to be placed” is intended to address acts that unintentionally result in an obstruction of the highway. We disagree.

When a statute or rule is plain and its meaning is clear, the rules of statutory construction do not permit courts to search for meaning beyond its express terms. State v. Snyder, 634 N.W.2d 613, 615 (Iowa 2001). We generally presume words contained in a statute are used in their ordinary and usual sense with the *833meaning commonly attributed to them. Am. Home Prods. Corp. v. Iowa State Bd. of Tax Review, 302 N.W.2d 140, 143 (Iowa 1981). When not defined in a statute, we construe a term according to its accepted usage. Id. We resort to rules of statutory construction when the explicit terms of a statute are ambiguous. City of Waukee v. City Dev. Bd., 590 N.W.2d 712, 717 (Iowa 1999). Ambiguity is found in a statute “if reasonable minds could differ or be uncertain as to the meaning of the statute.” Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996). In this case, reasonable minds could disagree whether the phrase “cause to be placed” addresses only intentional conduct or if conduct resulting in an unintentional obstruction is also covered. Accordingly, we shall apply our well-established rules in interpreting the ambiguous phrase.

Our goal in interpreting a statute is to ascertain legislative intent. Iowa Ass’n of Sch. Bds. v. Iowa Dep’t of Educ., 739 N.W.2d 303, 309 (Iowa 2007). In determining legislative intent we consider not only the words used by the legislature, but also the statute’s “subject matter, the object sought to be accomplished, the purpose to be served, underlying policies, ... and the consequences of various interpretations.” State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003). We look to the context in which the ambiguous phrase is used and consider its relationship to associated words and phrases. T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159, 163 (Iowa 1999). We give “a plain, ordinary meaning to words, phrases, and punctuation” and presume “that no part of an act is intended to be superfluous.” TLC Home Health Care, L.L.C. v. Iowa Dep’t of Human Servs., 638 N.W.2d 708, 713 (Iowa 2002).

The Thompsons contend the prohibition on placing an obstruction addresses intentional conduct while the prohibition on causing to be placed addresses unintentional conduct. They posit that if the statute is not interpreted in this way, the phrase “cause to be placed” is rendered superfluous.

While the Thompsons’ reading of the statute is certainly a plausible interpretation, we are not convinced the phrase “cause to be placed” is rendered superfluous if it addresses intentional behavior. Consider the example of two landowners. One landowner builds a fence herself within the highway right-of-way. The other landowner hires a contractor to build a fence in the highway right-of-way. In the first instance, the landowner has placed the obstruction herself, while in the second scenario, she has caused the obstruction to be placed. Both are arguably intentional acts. We conclude the legislature included the phrase “cause to be placed” to prevent a person from avoiding liability by simply hiring someone else to do the “placing.”

A review of the entire statutory scheme further convinces us the legislature did not intend to address negligent or unintentional behavior. Iowa Code section 318.12 gives the highway authority the ability to “enforce the provisions' of this chapter by appropriate civil or criminal proceeding” or both. Section 318.6 provides any person who places or causes an obstruction to be placed “is deemed to have created a public nuisance punishable as provided in chapter 657.” Section 657.3 provides a person found guilty of causing a public nuisance “shall be guilty of an aggravated misdemeanor.” We are not inclined to interpret section 318.3 in a way that would result in punishing ordinary negligence as an aggravated misdemeanor—a necessary result of interpreting the statute as the Thompsons urge. Accordingly, we conclude the district court correctly determined that under the facts presented here, *834section 318.3 does not impose a duty upon Lockwood and Kaczinski to refrain from negligently causing an obstruction to be placed in the right-of-way.

B. Common Law Duty. An actionable claim of negligence requires “ ‘ “the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages.” ’ ” Stotts v. Eveleth, 688 N.W.2d 803, 807 (Iowa 2004) (quoting Van Essen v. McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa 1999)). Plaintiffs contend Kaczinski and Lockwood owed a common law duty to exercise reasonable care to prevent their personal property from obstructing the roadway and to remove their property from the roadway within a reasonable time after it became an obstruction. Whether a duty arises out of a given relationship is a matter of law for the court’s determination. Shaw v. Soo Line R.R., 463 N.W.2d 51; 53 (Iowa 1990).

Our cases have suggested three factors should be considered in determining whether a duty to exercise reasonable care exists: “ ‘(1) the relationship .between the parties, (2) reasonable foreseeability of harm to the person who is injured, and (3) public policy considerations.’” Stotts, 688 N.W.2d at 810 (quoting J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589 N.W.2d 256, 258 (Iowa 1999)); accord Leonard v. State, 491 N.W.2d 508, 510-12 (Iowa 1992) (discussing relationship between the parties, foreseeability of harm to the plaintiff, and public policy considerations when determining if a psychiatrist owed a duty to protect members of the public from the violent behavior of a patient). Our previous decisions have characterized the proposition that the relationship giving rise to a duty of care must be premised on the foreseeability of harm to the injured person as “a fundamental rule of negligence law.” Sankey v. Richenberger, 456 N.W.2d 206, 209-10 (Iowa 1990). The factors have not been viewed as three distinct and necessary elements, but rather as considerations employed in a balancing process. Stotts, 688 N.W.2d at 810. “In the end, whether a duty exists is a policy decision based upon all relevant considerations that guide us to conclude a particular person is entitled to be protected from a particular type of harm.” J.A.H., 589 N.W.2d at 258.

The role of foreseeability of risk in the assessment of duty in negligence actions has recently been revisited by drafters of the Restatement (Third) of Torts. “An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Liab. for Physical Harm § 7(a), at 90 (Proposed Final Draft No. 1, 2005) [hereinafter Restatement (Third) l.1 Thus, in most cases involving physical harm, courts “need not concern themselves with the existence or content of this ordinary duty,” but instead may proceed directly to the elements of liability set forth in section 6. Id. § 6 cmt. f, at 81. The general duty of reasonable care will apply in most cases, and thus courts “can rely directly on § 6 and need *835not refer to duty on a case-by-case basis.” Id. § 7 cmt. a, at 90.

However, in exceptional cases, the general duty to exercise reasonable care can be displaced or modified. Id. § 6 cmt. f at 81-82. An exceptional case is one in which “an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases.” Id. § 7(b), at 90. In such an exceptional case, when the court rules as a matter of law that no duty is owed by actors in a category of cases, the ruling “should be explained and justified based on articulated policies or principles that justify exempting [such] actors from liability or modifying the ordinary duty of reasonable care.” Id. § 7 cmt. j, at 98. Reasons of policy and principle justifying a departure from the general duty to exercise reasonable care do not depend on the foreseeability of harm based on the specific facts of a case. Id. “A lack of foreseeable risk in a specific case may be a basis for a no-breach determination, but such a ruling is not a no-duty determination.” Id.

The assessment of the foreseeability of a risk is allocated by the Restatement (Third) to the fact finder, to be considered when the jury decides if the defendant failed to exercise reasonable care.

Foreseeable risk is an element in the determination of negligence. ' In order to determine whether appropriate care was exercised, the factfinder must assess the foreseeable risk at the time of the defendant’s alleged negligence. The extent of foreseeable risk depends on the specific facts of the case and cannot be usefully assessed for a category of cases; small changes in the facts may make a dramatic change in how much risk is foreseeable.... [C]ourts should leave such determinations to juries unless no reasonable person could differ on the matter.

Id. at 97-98. The drafters acknowledge that courts have frequently used foreseeability in no-duty determinations, but have now explicitly disapproved the practice in the Restatement (Third) and limited no-duty rulings to “articulated policy or principle in order to facilitate more transparent explanations of the reasons for a no-duty ruling and to protect the traditional function of the jury as factfinder.” Id. at 98-99. We find the drafters’ clarification of the duty analysis in the Restatement (Third) compelling, and we now, therefore, adopt it.

The district court clearly considered foreseeability in concluding the defendants •owed no duty in this case. When the consideration of foreseeability is removed from the determination of duty, as we now hold it should be, there remains the question of whether a principle or strong policy consideration justifies the exemption of Kaczinski and Lockwood—as part of a class of defendants—from the duty to exercise reasonable care. We conclude no such principle or policy consideration exempts property owners from a duty to exercise reasonable care to avoid the placement of obstructions on a roadway. In fact, we have previously noted the public’s interest in ensuring roadways are safe and clear of dangerous obstructions for travelers:

While an abutting landowner is not liable with respect to highway hazards over which he has no control, he is under an obligation to use reasonable care to keep his premises in such condition as not to create hazards in the adjoining highway. He must conduct operations on his land in such a manner as not to injure the highway traveler.

Weber v. Madison, 251 N.W.2d 523, 527 (Iowa 1977) (citation omitted); see also Fritz v. Parkison, 397 N.W.2d 714, 715 (Iowa 1986) (noting public policy to keep *836highways free from obstructions and hazards is well-developed and clearly recognized); Stewart v. Wild, 196 Iowa 678, 683, 195 N.W. 266, 269 (1923) (“It is the fundamental law of the highway that it is subject to the use of the traveling public, and that it must be kept free from such obstructions as are not incident to its use for travel.”). Accordingly, we conclude the district court erred in determining Kaczin-ski and Lockwood owed no common law duty under the circumstances presented here.

C. Causation. Although the memorandum filed by Kaczinski and Lockwood in support of their motion for summary judgment raised only the questions of whether a duty was owed and whether a duty was breached, the district court concluded the plaintiffs’ claims must fail for the further reason that they did not establish a causal connection between their claimed injuries and damages and the acts and omissions of Kaczinski and Lockwood. Again relying on its determination that the risk of the trampoline’s displacement from the yard to the roadway was not foreseeable, the court resolved the causation issue against the Thompsons as a matter of law.

We have held causation has two components: cause in fact and legal cause. Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007). The decisions of this court have established it is the plaintiffs burden to prove both cause in fact and legal (proximate) cause. See City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 17 (Iowa 2000). The latter component requires a policy determination of whether “the policy of the law must require the defendant to be legally responsible for the injury.” Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996). Causation is a question for the jury, “ ‘save in very exceptional cases where the facts are so clear and undisputed, and the relation of cause and effect so apparent to every candid mind, that but one conclusion may be fairly drawn therefrom.’ ” Lindquist v. Des Moines Union Ry., 239 Iowa 356, 362, 30 N.W.2d 120, 123 (1947) (quoting Fitter v. Iowa Tel. Co., 143 Iowa 689, 693-94, 121 N.W. 48, 50 (1909)).

We have previously applied the test articulated in the Restatement (Second) of Torts when determining if a defendant’s conduct is a legal or proximate cause of the plaintiffs damages. This test holds “[t]he actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability.” Restatement (Second) of Torts § 431, at 428 (1965); accord Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 349 (Iowa 1991). In deciding whether conduct is a substantial factor in bringing about the harm, we have considered the “proximity between the breach and the injury based largely on the concept of foreseeability.” Estate of Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 83 (Iowa 2002). The word “substantial” has been used to express “the notion that the defendant’s conduct has such an effect in producing the harm as to lead reasonable minds to regard it as a cause.” Sumpter v. City of Moulton, 519 N.W.2d 427, 434 (Iowa Ct.App.1994).

The formulation of legal or proximate cause outlined above has been the source of significant uncertainty and confusion. This court’s adherence to the formulation has been less than consistent. See Gerst, 549 N.W.2d at 816-17 (chronicling inconsistencies in our approach to questions of proximate causation). Even had it been applied consistently, the concept of legal or proximate cause itself has been criticized for confusing factual determinations (substantial factor in bringing about harm) with policy judgments (no rule of law pre-*837eluding liability). Id. at 816. Although we have previously noted our uneven approach to proximate cause questions and acknowledged the criticism of the doctrine, we have not yet had the opportunity to clarify this area of law. Id. at 817. We do now.

“Tort law does not impose liability on an actor for all harm factually caused by the actor’s tortious conduct.” Restatement (Third) ch. 6 Special Note on Proximate Cause, at 574. This concept has traditionally been designated “proximate cause.” While this term is used extensively and appropriately by courts, practitioners, and scholars, it causes considerable confusion for juries because it does not clearly express the idea it is meant to represent. See id. § 29 cmt. b, at 576-77. The confusion arises when jurors understand “proximate cause” as implying “there is but one cause—the cause nearest in time or geography to the plaintiffs harm—and that factual causation bears on the issue of scope of liability.” Id. § 29 cmt. b, at 577. Thus, in an attempt to eliminate unnecessary confusion caused by the traditional vernacular, the drafters of the third Restatement refer to the concept of proximate cause as “scope of liability.”2

The drafters of the Restatement (Third) explain that the “legal cause” test articulated in the second Restatement included both the “substantial factor” prong and the “rule of law” prong because it was intended to address both factual and proximate cause. Id. ch. 6 Special Note on Proximate Cause, at 574. Although the “substantial factor” requirement has frequently been understood to apply to proximate cause determinations, see Gerst, 549 N.W.2d at 815-16, the drafters contend it was never intended to do so. Restatement (Third) § 29 cmt. a, at 576.3 Accordingly, to eliminate the resulting confusion of factual and policy determinations resulting from the Restatement (Second) formulation of legal cause, the drafters have opted to address factual cause and scope of liability (proximate cause) separately. Restatement (Third) ch. 6 Special Note on Proximate Cause, at 575. The assessment of scope of liability under the Restatement (Third) no longer includes a determination of whether the actor’s conduct was a substantial factor in causing the harm at issue, a question properly addressed under the *838factual cause rubric. See id. § 27 cmt. j, at 427-29.4

Most importantly, the drafters of the Restatement (Third) have clarified the essential role of policy considerations in the determination of the scope of liability. “An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” Id. § 29, at 575. This principle, referred to as the “risk standard,” is intended to prevent the unjustified imposition of liability by “confining liability’s scope to the reasons for holding the actor liable in the first place.” Id. § 29 cmt. d, at 579-80. As an example of the standard’s application, the drafters provide an illustration of a hunter returning from the field and handing his loaded shotgun to a child as he enters the house. Id. cmt. d, illus. 3, at 581. The child drops the gun (an object assumed for the purposes of the illustration to be neither too heavy nor unwieldy for a child of that age and size to handle) which lands on her foot and breaks her toe. Id. Applying the risk standard described above, the hunter would not be liable for the broken toe because the risk that made his action negligent was the risk that the child would shoot someone, not that she would drop- the gun and sustain an injury to her foot. Id.

The scope-of-liability issue is fact-intensive as it requires consideration of the risks that made the actor’s conduct tor-tious and a determination of whether the harm at issue is a result of any of those risks. Id. § 29 cmt. <¾ at 580, 584. When, as in this case, the court considers in advance of trial whether

the plaintiffs harm is beyond the scope of liability as a matter of law, courts must initially consider all of the range of harms risked by the defendant’s conduct that the jury could find as the basis for determining [the defendant’s] conduct tortious. Then, the court can compare the plaintiffs harm with the range of harms risked by the defendant to determine whether a reasonable jury might find the former among the latter.

Id. at 580.

The drafters advance several advantages of limiting liability in this way. First, the application of the risk standard is comparatively simple. Id. cmt. e, at 585. The standard “appeals to intuitive notions of fairness and proportionality by limiting liability to harms that result from risks created by the actor’s wrongful conduct, but for no others.” Id. It also is flexible enough to “accommodate fairness concerns raised by the specific facts of a case.” Id.

Foreseeability has previously played an important role in our proximate cause determinations. See Virden, 656 N.W.2d at 808. For example,

“ ‘An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable and such an act is either the remote cause, or no cause whatever, of the injury.’ ”

Scoggins v. Wal-Mart Stores, Inc., 560 N.W.2d 564, 568-69 (Iowa 1997) (quoting Fly v. Cannon, 836 S.W.2d 570, 574 (Tenn.Ct.App.1992)). When, as in this ease, we have been called upon to consider the role of an intervening or superseding cause, the question of the foreseeability of the superseding force has been critical. See *839 Summy v. City of Des Moines, 708 N.W.2d 333, 342 (Iowa 2006); Clinkscales, 697 N.W.2d at 843.

The drafters of the Restatement (Third) explain that foreseeability is still relevant in scope-of-liability determinations. “In a negligence action, prior incidents or other facts evidencing risks may make certain risks foreseeable that otherwise were not, thereby changing the scope-of-liability analysis.” Restatement (Third) § 29 cmt. d, at 584-85. In fact, they acknowledge the similarity between the risk standard they articulate and the foreseeability tests applied by most jurisdictions in making causation determinations in negligence cases.

Properly understood, both the risk standard and a foreseeability test exclude liability for harms that were sufficiently unforeseeable at the time of the actor’s tortious conduct that they were not among the risks—potential harms—that made the actor negligent.... [W]hen scope of liability arises in a negligence case, the risks that make an actor negligent are limited to foreseeable ones, and the factfinder must determine whether the type of harm that occurred is among those reasonably foreseeable potential harms that made the actor’s conduct negligent.

Id. § 29 cmt. j, at 594. Although the risk standard and the foreseeability test are comparable in negligence actions, the drafters favor the risk standard because it “provides greater clarity, facilitates clearer analysis in a given case, and better reveals the reason for its existence.” Id. They explain that a foreseeability test “risks being misunderstood because of uncertainty about what must be foreseen, by whom, and at what time.” Id. at 595.

We find the drafters’ clarification of scope of liability sound and are persuaded by their explanation of the advantages of applying the risk standard as articulated in the Restatement (Third), and, accordingly, adopt it.

Our next task, then, is to consider whether the district court erred in concluding the harm suffered by the Thomp-sons was, a matter of law, outside the scope of the risk of Kaczinski and Lockwood’s conduct. We conclude the question of whether a serious injury to a motorist was within the range of harms risked by disassembling the trampoline and leaving it untethered for a few weeks on the yard less than forty feet from the road is not so clear in this case as to justify the district court’s resolution of the issue as a matter of law at the summary judgment stage. A reasonable fact finder could determine Kaczinski and Lockwood should have known high winds occasionally occur in Iowa in September and a strong gust of wind could displace the unsecured trampoline parts the short distance from the yard to the roadway and endanger motorists. Although they were in their home for several hours after the storm passed and approximately two-and-a-half hours after daybreak, Kaczinski and Lockwood did not discover their property on the nearby roadway, remove it, or warn approaching motorists of it. On this record, viewed in the light most favorable to the Thompsons, we conclude a reasonable fact finder could find the harm suffered by the Thompsons resulted from the risks that made the defendants’ conduct negligent. Accordingly, the district court erred in deciding the scope-of-liability question as a matter of law in this case.

IV. Conclusion.

The district court correctly determined Kaczinski and Lockwood owed no statutory duty pursuant to Iowa Code section 318.3 under the circumstances of this case. Therefore, we affirm the district court’s *840dismissal of this claim. However, the district court erred in concluding Kaczinski and Lockwood owed the Thompsons no common law duty. As a reasonable fact finder could conclude the Thompsons’ injuries and damages were within the scope of the risk of Kaczinski and Lockwood’s acts or omissions, the district court erred in resolving the scope of liability question as a matter of law. Accordingly, we reverse the district court’s dismissal of this claim and remand this case for trial.

COURT OF APPEALS DECISION VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED.

All justices concur except CADY, J., who concurs specially and STREIT, J., who takes no part.

. Our opinion in Gerst suggested the substantial factor test was developed to address a situation in which there were two or more causes of the harm to plaintiff and either of the causes alone would have been sufficient to bring about the harm. In this situation, because a strict application of the cause-in-fact "but-for” test "would allow both tortfeasors to avoid liability, courts made the policy decision to nevertheless impose liability 'if [the defendant's conduct] was a material element and a substantial factor in bringing [the event] about.’ ” Gerst, 549 N.W.2d at 815 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 267 (5th ed. 1984)). Citing Prosser, we suggested in Gerst that "the substantial factor test was originally intended to address a legal causation issue, not one of causation in fact.” Id. at 815-16. Having reexamined the .question, we concur with the drafters of the Restatement (Third) on this point. The Restatement (Third) addresses the problem of multiple sufficient causes as part of the factual cause determination. See Restatement (Third) § 27, at 452.

CADY, Justice

(specially concurring).

I concur with the result reached by the majority, but write separately to express two brief points.

First, the majority holds that the defendants had a common-law duty to reasonably secure outdoor personal property from being displaced by the wind. While I agree with the holding, I believe it should be narrowly construed to the facts of this case. A narrow construction is necessary because there may be a point when public-policy considerations would intervene to narrow the duty to exclude some items'of personal property placed or kept by homeowners and others outside a home, such as patio and deck furniture and curbside waste disposal and recycling containers.

Second, the majority utilizes a causation or scope-of-liability analysis to deny summary judgment on the basis that a “reasonable fact finder could determine [the defendants] should have known ... a strong gust of wind could displace the unsecured trampoline ... and endanger motorists.” Yet, they identify no facts or offer any common knowledge to explain such a conclusion. All that is known from the summary judgment proceeding is the trampoline was “disassembled” and “placed” in the yard. In truth, there are no facts in the record at this point to show or explain how the wind could have moved the trampoline. Moreover, without such facts, the incident cannot be explained by common knowledge. Consequently, the absence of such facts or common knowledge, not an unsupported conclusion, should supply the reason to deny summary judgment.

Summary judgment can only be granted when the facts are clear and undisputed. Griglione v. Martin, 525 N.W.2d 810, 813 (Iowa 1994) (stating parties must establish the undisputed facts compelling a particular outcome under controlling law). If the facts, disputed or undisputed, showed the trampoline in this case was positioned in the yard in such a way that a reasonable person with common knowledge could understand that wind could enter under the trampoline tarp and lift the trampoline, then a reasonable fact finder could determine the incident was within the range of harms of leaving a trampoline in the yard to support causation or scope of liability. On the other hand, if the undisputed facts showed the trampoline tarp was attached to the metal ring and positioned flat on the ground, a court may very well be justified in concluding the incident was not within the risks of leaving a trampoline in the yard. Thus, summary judgment should be denied in this case because the facts are unclear and uncertain. It is inappropriate for a court to make a legal determination that a reasonable person should have known or appreciated the ability of wind to lift and carry a trampoline without knowing the particular facts and circumstances.

4.4.2.4 Intervening Cause, Whether Superseding or not? 4.4.2.4 Intervening Cause, Whether Superseding or not?

4.4.2.4.1 Arkansas Model Jury Instructions-Civil, Section 503 4.4.2.4.1 Arkansas Model Jury Instructions-Civil, Section 503

AMI 503 Intervening Proximate Cause—Definition and Effect—Burden of Proof

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 503

Arkansas Model Jury Instructions-Civil

November 2022 Update

Arkansas Supreme Court Committee On Jury Instructions-Civil

Chapter 5. Proximate Cause

AMI 503 Intervening Proximate Cause—Definition and Effect—Burden of Proof

(Defendant) contends and has the burden of proving that following any act or omission on [his][her][its] part an event intervened that in itself caused damage completely independent of [his][her][its] conduct. If you so find, then (defendant's) act or omission was not a proximate cause of any damage resulting from the intervening event.

[The fact that other cause(s) intervened between any act or omission on the part of (defendant), and the damage for which claim is made, would not relieve (defendant) of liability if the damage is reasonably foreseeable as a natural and probable result of any act or omission on the part of (defendant).]

4.4.2.4.2 Cowart v. Jones ("The Defective Crane Case") 4.4.2.4.2 Cowart v. Jones ("The Defective Crane Case")

In this case, the suit is by the plaintff decedent's wife against the company that leased a defective crane to the plaintiff's employer. If those are the parties, why does this court focus on the conduct of a non-party--the employer?

Arkansas Supreme Court

250 Ark. 881, 467 S.W.2d 710

5-5549

1971-06-07

Shirley COWART, Adm’x v. Casey JONES, Contractor, Inc.

5-5549

467 S. W. 2d 710

Opinion delivered June 7, 1971

Carl Langston and Gene Worsham, for appellant.

Cockrill, Laser, McGehee, Sharp ir Boswell, for appellee.

Frank Holt, Justice.

The appellant brought this action against the appellee to recover damages for the death of Gerald Cowart, appellant’s husband, allegedly caused by the negligence of the appellee. The deceased *882was fatally injured when a crane, rented from appellee, struck the decedent and caused him to fall from a building under construction. When the appellant concluded the evidence in her case, the trial court directed a verdict for the appellee on the basis that the continued use of the crane by Bechtel (decedent’s employer), with the knowledge that it lacked certain safety devices, constituted a separate and intervening cause.

For reversal of the judgment appellant contends that the trial court erred in directing a verdict for the appellee, the lessor, because the crane was a dangerous instrumentality without the necessary safety devices and that the appellee, lessor, being a bailor for hire, owed a duty to furnish a safe appliance to those expected to use it and, further, that the appellee, lessor, is not relieved of liability even though the decedent’s employer was also negligent in continuing to use the dangerous instrumentality after detecting the dangerous condition.

The decedent, an iron worker, was part of a “raising gang” employed by Bechtel Corporation at a construction of facilities for Union Carbide Corporation. On the date of the accident, he and his crew were transferred by his superior to a “preheater building” from an adjoining building where they had been erecting steel with the use of a small crane. The decedent and his coworkers had not previously used the particular crane which was at the “preheater” site. This was a large, heavy-duty crane with a load capacity of 100 tons and a 170-foot boom. Decedent’s employer had two large cranes of this type, as well as smaller ones, on the job site. This large type crane was necessary at the “preheater” site because of the weight of the steel and the height required to set it in place. The fatal accident happened when the first steel column was raised by the crane and placed at the top of the “preheater” building. After decedent had unhooked his “choker” from the steel column, his co-worker had difficulty in disconnecting his side of the “choker.” Decedent assisted his coworker and when the “choker” was released, the “headache ball,” a steel ball weighing approximately fifty *883pounds and approximately fourteen inches in diameter, began spinning at a rapid rate with great force, knocking decedent from his position on top of the building and causing him to fall seventy-five feet to his death.

This crane, designed and customarily used for steel construction work at high elevations, was not equipped nor supplied with a non-spin swivel or a non-spin cable. Following the accident, a safety consultant for the Arkansas Labor Department investigated and testified that: “It didn’t have a swivel on it which would have prevented this (the accident).” He recommended “a non-rotating cable which tends to not twist up or swivel on this cable and they were putting that on there when I left.” According to him, the use of the swivel is “standard knowledge or standard procedure, it goes on there to prevent the cable from getting twisted up.”

The decedent’s co-worker testified that it is standard procedure that cranes of this type engaged in “hanging iron” be equipped both with a non-spin swivel and non-rotating cable. This witness denied any knowledge before the accident that the crane was not equipped with these two safety devices. According to him, this crane was very dangerous without this equipment. The decedent’s foreman testified that: “A swivel headache ball is standard equipment” and the swivel is an absolute necessity. Further, there was no tag line on the steel column being set. Another witness, an iron worker for 21 years, stated that in the absence of these devices this large crane, a utility rig used for heavy equipment such as “hanging iron,” was certainly “unsafe.”

The construction superintendent testified that this crane was multi-purpose in its nature and was used primarily for “setting structural steel” and “hanging iron;” that it was equipped with a long boom “to reach high places” in steel erection jobs; that the crane, rented from appellee, had been received from the appellee three to four weeks before the accident; that he and the particular crew which assembled this crane after its receipt were aware that it was not equipped with these safety *884devices. According to him, appellee was contacted about the lack of these safety features. He testified that he had used this and other cranes without the safety features and that this crane had not been used to set heavy iron, although it had been used every day to set “little stuff.” He testified that he had set the rig “in operation” knowing that it was not safety equipped and the foreman on the job knew the crane was not so equipped. Further, he stated that customarily a “tag line” was used to take the slack out of the line when the crane was not equipped with a swivel.

Appellant correctly states the rules of law which apply in determining whether a directed verdict is correct. In Shearer v. Morgan, 240 Ark. 616, 401 S. W. 2d 21 (1966) we said:

“It is the long-established rule of this court that, in determining the correctness of the trial court’s action in directing a verdict for either party, we must take that view of the evidence which is most favorable to the party against whom the verdict is directed; and, if there is any substantial evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error for the court to take the case from the jury.” [citing cases]

Also, in Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226 (1959) we said:

“The rule is well established that where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question should go to the jury.”

Even though we hold, which we do not, as contended by appellant, that the crane was an inherently dangerous instrumentality and that the appellee was negligent in furnishing or supplying decedent’s employer with unsafe equipment, the appellant cannot prevail. This is true because, in directing a verdict for appellee, the court was correct in stating:

*885“The most important and persuasive reason why this court is directing a verdict for the defendant Casey Jones is that there can be no question, I rule as a matter of law that representatives in high capacity in Bechtel Corporation admittedly knew that this crane was received from whatever source without the safety devices. That they used it for a period of time.- * * * But in any event, charged with that knowledge, in my opinion the law is clear that there was a very definite intervening cause that we cannot attribute to Casey Jones.”

In Collier v. Citizens Coach Co., 251 Ark. 489, 330 S. W. 2d 74 (1959) we defined proximate cause as being:

"That which is a natural and continuous sequence, unbroken by any efficient intervening cause,- produces the injury, and without which the result would not have occurred.”

See, also, Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S. W. 2d 117 (1963); Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647 (1908); AMI 503.

In the case at bar it is undisputed that the crane had been on the job site and out of the appellee lessor’s control for at least three to four weeks; that the crane was assembled on the job -site and operated by the decedent’s employer, during which time the appellee exercised no control over-the crane’s operation. Further, that decedent’s employer was aware during this three to four weeks of use that the two safety devices were not on this crane; that, knowing this, decedent’s employer directed him to work with or about this crane in the lifting of heavy structural steel which, according to the record, is the only time during the three to four weeks it had been so used; and that decedent’s employer admitted that it was customary, in the absence of these safety devices, to take “the back lay out of the cable” before it is sent up. In the circumstances we are of the view that the acts of decedent’s employer constituted an efficient, independent, and intervening proximate cause *886which superseded or broke the causal connection of the negligence, if any, of appellee.

Affirmed.

Byrd, J., concurs.

4.4.2.4.3 Snyder v. Colorado Springs & Cripple Creek District Railway Co. Hypo 4.4.2.4.3 Snyder v. Colorado Springs & Cripple Creek District Railway Co. Hypo

Is there proximate cause for an allegation that the defendant railroad was negligent?

Colorado Supreme Court

36 Colo. 288

No. 5057; No. 2623 C. A.

1906-01

[No. 5057.]

[No. 2623 C. A.]

Snyder v. The Colorado Springs and Cripple Creek District Railway Company.

1. Railroads — Passengers—Damages—Personal Injuries — Negligence — Approximate Cause.

Plaintiff on a crowded ear stood with his hand resting on the door jam. There were people between him and the door and others upon the steps. The head of the man upon the lower 'step reached to the thigh'of the plaintiff. Tl e conductor, in pushing his way through the crowd, pressed the plaintiff against a third person sitting in the seat, who gave plaintiff a push, throwing him over the head of the man who stood upon the lower step. Held, that the approximate cause of the injury was, as a matter of law, the action of a third person, for which the railroad company was not liable. — P. 289.

2. Same — Damages—Personal Injuries — Evidence — Directing Verdict.

In an action for personal injuries, where from all the evi- ' dence the court is able to see that the negligence complained of was not the approximate but the remote cause of the injuries, the court must direct a verdict for the defendant, for if such evidence had been submitted to the jury and the verdict had been rendered in favor of the plaintiff, it would have been the duty of the court to set it aside. — P. 292.

Error to the District Court of Teller County.

Hon. William P. Seeds, Judge.

Action by William W. Snyder against the Colorado Springs and Cripple Creek District Railway Company.. Prom a judgment in favor of defendant, plaintiff brings error.

Affirmed,

Mr. J. J. McFeely, for plaintiff in error.

*289Mr. E. E. Whitted, Mr. P. H. Holme, and Messrs. Lunt, Brooks & Wilcox, for defendant in error. ■

Mr. Justice Bailey

delivered the opinion of the court:

This.is an action by plaintiff against defendant to recover for injuries received by plaintiff while traveling on defendant’s ears as a regular passenger, going from the city of Cripple Creek to a station known as Midway.

At the close of plaintiff’s testimony, the court, upon motion of defendant, instructed the jury to.return a verdict in favor of. the defendant, which was done.

• The ease comes here upon error, and the error assigned is this instruction and verdict.

There is no dispute as to the facts, which appear to be that, on the night of December 20, 1900, plain- • tiff was a passenger on defendant’s car, going from Cripple Creek to Midway. He had paid his fare, the car 'was crowded, and, after leaving Fairview, plaintiff was standing near the door, with his hand resting on the door jamb. There were people between plaintiff and the'door, some upon the steps. The head of the man upon the lower step reached to about the thigh of the plaintiff. The conductor, in pushing his way through the crowd, pressed plaintiff against a party who was sitting in a s.eat on the side of the car. This man became angry, said that he was “Getting’ tired, of playing cushion for the electric line, ’ ’ and raised up against the plaintiff and gave a “surge,” by the force of which plaintiff was thrown from the car, passing over the head of the man who stood upon the lower step.

In plaintiff’s brief it is said, in 'effect, that the court below, in passing on the motion for honsuit, *290dwelt at considerable length upon the question as to what was the proximate cause of this accident.. The court came to the conclusion that the proximate cause was the action of the passenger, and, therefore, the company was not liable.

So the question for us to determine is as to what was the proximate cause .of the accident.

Proximate cause is: “That cause which, in natural and continued sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which that result would not have occurred.”-D. & R. G. R. R. Co. v. Sipes, 26 Colo. 17.

It was defined by the court of appeals as being “that cause which immediately precedes and directly produces an effect as distinguished from a remote, mediate or predisposing cause”’-Burlington, etc., R. R. Co. v. Budin, 6 Colo. App. 275.

“An act is the proximate cause of an event when, in the natural order of things, and under the particular circumstances surrounding it, such an act would necessarily produce that event.” — Ibid.

“The law will not look back from the injurious consequence beyond the last sufficient cause, and especially that, where an intelligent and responsible human being has intervened between the original cause and the resulting damage.”-Stone v. Boston & A. R. Co., 51 N. E. 1.

‘ ‘ The nature of the intervening cause which will render an original cause for which the author is sought to be held liable in damages too remote for recovery, must be simply such as interrupts the usual and ordinary and experienced sequence of events, and produces consequences at variance therewith.” —Watson on Damages for Personal Injuries, § 7.

“If the original wrong only becomes injurious in con'sequence of the intervention of some distinct *291wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote. ’ ’ — Cooley on Torts, 70.

‘£ The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of á third person, intervening or contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrong-doer, if such act ought to have been foreseen. ’ ’—Lane v. Atlantic Works, 111 Mass. 136.

“One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is •sometimes said, is only remotely and slightly‘probable. ”—Stone v. Boston & A. R. Co., supra; Burlington, etc., R. R. Co. v. Budin, supra.

Tried by these tests, the defendant is not responsible for the consequences of the passenger’s act. There is nothing to show that such a consequence as happened was liable to occur. It was, of course, possible, that some extremely nervous or irritable person would become angry because of his being inconvenienced on account of the crowded condition of the car, but it is not in accordance with the usual and ordinary course of events to anticipate that a seated passenger would so far lose control of himself on account of having a standing passenger crowded against him that he would eject the standing passenger from the car with such force as to throw him over the head of one who was standing upon the step below the party so ejected.

*292It is apparent from the record in this case, that the proximate cause of the injury to plaintiff was the • action of the irritated passenger, and that this cause could not be anticipated by defendant or. its agents. The plaintiff, however, contends that this question should have been submitted to the jury. This course would have been necessary if material facts had been in dispute, but where, upon all the evidence, the court is able to see that the resulting injury was not proximate but remote, the plaintiff fails to make out his case, and the court should so rule.—Stone v. Boston & A. R. Co., supra.

If the matter had been submitted to the jury and the verdict had been rendered_ in favor of plaintiff, it would have been the duty of the court to set it aside. Consequently, it was his duty to direct the verdict.—Chivington v. Colo. Springs Co., 9 Colo. 597.

•The court having committed no error in sustaining the motion and directing the verdict, the judgment of the district court will be affirmed.

Affirmed.

Chibe Justice Gabbert and Mr. Justice Goddard concur.

4.5 Damages 4.5 Damages

4.5.1 General Rules 4.5.1 General Rules

4.5.1.1 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. ("The Neighborhood Disaster Case") 4.5.1.1 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. ("The Neighborhood Disaster Case")

What happens if the defendant's negligence impacts other parties? When can they recover?

[750 NE2d 1097, 727 NYS2d 49]

532 Madison Avenue Gourmet Foods, Inc., Respondent, v Finlandia Center, Inc., et al., Appellants. 5th Avenue Chocolatiere, Ltd., et al., Respondents, v 540 Acquisition Co., L. L. C., et al., Appellants. Goldberg Weprin & Ustin, L. L. P., Individually and on Behalf of All Others Similarly Situated, Appellant, v Tishman Construction Corp. et al., Respondents.

Argued April 26, 2001;

decided June 7, 2001

*282POINTS OF COUNSEL

Smith & Laquercia, P. C., New York City (Charles R. Strugatz and Edwin L. Smith of counsel), for appellants in the first above-entitled action.

I. The reinstatement of respondent’s negligence claim by the court below should be reversed. (Goldberg Weprin & Ustin v Tishman Constr. Corp., 275 AD2d 614; Syracuse Cablesystems v Niagara Mohawk Power Corp., 173 AD2d 138; Schiavone Constr. Co. v Mayo Corp., 56 NY2d 667; Hemming v Certainteed Corp., 97 AD2d 976; General Elec. Co. v Towne Corp., 144 AD2d 1003; Matter of Kinsman Tr. Co., 338 F2d 708, 388 F2d 821; Dunlop Tire & Rubber Corp. v FMC Corp., 53 AD2d 150; Beck v FMC Corp., 53 AD2d 118, 42 NY2d 1027; Ingenito v Robert M. Rosen, P. C., 187 AD2d 487; Bellevue S. Assocs. v HRH Constr. Corp., 78 NY2d 282.) II. The reinstatement of respondent’s public nuisance claim by the court below should be reversed. (Goldberg Weprin & Ustin v Tishman Constr. Corp., 275 AD2d 614; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Milliken & Co. v Consolidated Edison Co., 84 NY2d 469; Grow Tunneling Corp. v Consolidated Edison Co., 157 AD2d 452.)

Steven B. Sarshik, New York City, for respondent in the first above-entitled action.

I. The court below correctly concluded that defendants owed a duty to plaintiff. (Di Ponzio v Riordan, 89 NY2d 578; Palsgraf v Long Is. R. R. Co., 248 NY 339; Havas v Victory Paper Stock Co., 49 NY2d 381; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Kush v City of Buffalo, 59 NY2d 26; Basso v Miller, 40 NY2d 233.) II. Use of the “economic loss rule” in this case would be both impractical and illogical. (Schiavone Constr. Co. v Mayo Corp., 81 AD2d 221, 56 NY2d 667; Matter of Kinsman Tr. Co., 388 F2d 821; Dunlop Tire & Rubber Corp. v FMC Corp., 53 AD2d 150; MacPherson v Buick Motor Co., 217 NY 382.) III. Plaintiff has stated a valid cause of action for public nuisance. (Copart Indus. v Consolidated Edison Co., 41 NY2d 564; Leo v General Elec. Co., 145 AD2d 291; Hoover v Durkee, 212 AD2d 839; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Ackerman v True, 175 NY 353; Graceland Corp. v Consolidated Laundries Corp., 7 AD2d 89, 6 NY2d 900; Flynn v Taylor, 127 NY 596; Callanan v Gilman, 107 NY 360; Goldberg Weprin & Ustin v Tishman Constr. Corp., 275 AD2d 614.)

*283 Smith & Laquercia, L. L. P., New York City (Charles R. Strugatz and Edwin L. Smith of counsel), for appellants in the second above-entitled action.

I. The reinstatement of respondents’ negligence claim by the court below should be reversed. (Goldberg Weprin & Ustin v Tishman Constr. Corp., 275 AD2d 614; Beck v FMC Corp., 53 AD2d 118, 42 NY2d 1027; Schneider Natl. v State of New York, 138 Misc 2d 205; 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 271 AD2d 49; Syracuse Cablesystems v Niagara Mohawk Power Corp., 173 AD2d 138; Schiavone Constr. Co. v Mayo Corp., 56 NY2d 667; Hemming v Certainteed Corp., 97 AD2d 976; General Elec. Co. v Towne Corp., 144 AD2d 1003; Matter of Kinsman Tr. Co., 338 F2d 708, 388 F2d 821; Dunlop Tire & Rubber Corp. v FMC Corp., 53 AD2d 150.) II. The reinstatement of respondents’ public nuisance claim by the court below should be reversed. (Goldberg Weprin & Ustin v Tishman Constr. Corp., 275 AD2d 614; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Milliken & Co. v Consolidated Edison Co., 84 NY2d 469; 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 271 AD2d 49; Grow Tunneling Corp. v Consolidated Edison Co., 157 AD2d 452; Copart Indus, v Consolidated Edison Co., 41 NY2d 564.) III. The cause of action predicated upon private nuisance was not reinstated by the court below, and in any event was properly dismissed by the lower court. (Goldberg Weprin & Ustin v Tishman Constr. Corp., 275 AD2d 614; Copart Indus. v Consolidated Edison Co., 41 NY2d 564; McKenna v Allied Chem. & Dye Corp., 8 AD2d 463; Camillo v Geer, 185 AD2d 192; Old Oaks Country Club v State Univ. Constr. Fund, 66 AD2d 815; Celebrity Studios v Civetta Excavating, 72 Misc 2d 1077; Foster-Lipkins Corp. v Suburban Propane Gas Corp., 68 Misc 2d 32; Spano v Perini, 25 NY2d 11; 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 271 AD2d 49; Milliken & Co. v Consolidated Edison Co., 84 NY2d 469.) IV. The causes of action predicated upon gross negligence and negligence per se were not reinstated by the court below, and in any event were properly dismissed by the lower court. (Goldberg Weprin & Ustin v Tishman Constr. Corp., 275 AD2d 614; Santos v Security & Law Enforcement Empls., Council 82, 80 AD2d 554; Prozeralik v Capital Cities Communications, 82 NY2d 466; Camillo v Geer, 185 AD2d 192; Vanscoy v Namic USA Corp., 234 AD2d 680; Sterritt v Heins Equip. Co., 114 AD2d 616; Spallina v Giannoccaro, 98 AD2d 103; Dance v Town of Southampton, 95 AD2d 442; Martin v Herzog, 228 NY 164; Juarez v Wavecrest Mgt. Team, 88 NY2d 628.)

*284 Ashman & Griffin, L. L. C., New York City (Kenneth J. Ashman of counsel), for respondents in the second above-entitled action.

I. The reinstatement of the public nuisance claim must be affirmed because plaintiffs suffered an injury beyond that suffered by the community-at-large. (Ackerman v True, 175 NY 353; Wakeman v Wilbur, 147 NY 657; Copart Indus. v Consolidated Edison Co., 41 NY2d 564; Hoover v Durkee, 212 AD2d 839; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Leo v General Elec. Co., 145 AD2d 291; Flynn v Taylor, 127 NY 596; Francis v Schoellkopf, 53 NY 152.) II. The reinstatement of the private nuisance claim must be affirmed. (Copart Indus. v Consolidated Edison Co., 41 NY2d 564; Matter of Kinsman Tr. Co., 388 F2d 821.) III. The reinstatement of the negligence-based claims must be affirmed. (Matter of Kinsman Tr. Co., 388 F2d 821; Schiavone Constr. Co. v Mayo Corp., 81 AD2d 221, 56 NY2d 667; Hemming v Certainteed Corp., 97 AD2d 976; Syracuse Cablesystems v Niagara Mohawk Power Corp., 173 AD2d 138; Dunlop Tire & Rubber Corp. v FMC Corp., 53 AD2d 150; Beck v FMC Corp., 53 AD2d 118; Booth v Rome, Watertown & Ogdensburg Term. R. R. Co., 140 NY 267; Spano v Perini Corp., 25 NY2d 11; Weitzmann v Barber Asphalt Co., 190 NY 452; Klepper v Seymour House Corp., 246 NY 85.) IV. Defendants should be held strictly liable for their conduct. (Doundoulakis v Town of Hempstead, 42 NY2d 440; Hanley v Central Sav. Bank, 255 App Div 542.)

Jaroslawicz & Jaros, New York City (David Jaroslawicz of counsel), for appellant in the third above-entitled action.

I. A sufficient showing of “abnormally dangerous activity” has been shown for this case to survive defendant’s motion to dismiss under CPLR 3211. (Hanley v Central Sav. Bank, 255 App Div 542; Christie v Ranieri & Sons, 194 AD2d 453; Doundoulakis v Town of Hempstead, 42 NY2d 440.) II. Plaintiff also pleaded a claim for nuisance. Under this legal theory, plaintiff is entitled to maintain an action for pure economic loss against defendants. (Copart Indus. v Consolidated Edison Co., 41 NY2d 564; Leo v General Elec. Co., 145 AD2d 291.) III. The damages are not too tenuous to support a claim. (Matter of Kinsman Tr. Co., 388 F2d 821; Gelbman v Gelbman, 23 NY2d 434.) IV. Limitation of liability should be left to the Legislature. (5th Ave. Chocolatiere v 540 Acquisition Co., 272 AD2d 23; 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 271 AD2d 49; Duke Power Co. v California Envtl. Study Group, 438 US 59; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; BMW of N. Am. v Gore, 517 US 559.)

*285 Stroock & Stroock & Lavan, L. L. P., New York City (Joseph L. Forstadt, Deborah L. Goldstein and Joseph E. Strauss of counsel), for Tishman Construction Corp. of New York and another, respondents in the third above-entitled action.

I. Because plaintiff failed to allege that it sustained any physical harm or property damage as a direct result of the partial scaffold collapse, plaintiff’s tort claims were properly dismissed pursuant to the “economic loss doctrine.” (Lauer v City of New York, 95 NY2d 95; Eiseman v State of New York, 70 NY2d 175; Strauss v Belle Realty Co., 65 NY2d 399; Pulka v Edelman, 40 NY2d 781; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Palsgraf v Long Is. R. R. Co., 248 NY 339; Beck v FMC Corp., 53 AD2d 118, 42 NY2d 1027; Associated Gen. Contrs. v California State Council of Carpenters, 459 US 519; Ultramares Corp. v Touche, 255 NY 170; Waters v New York City Hous. Auth., 69 NY2d 225.) II. Plaintiff’s claims based on gross negligence, strict liability and nuisance were properly dismissed. (Doundoulakis v Town of Hempstead, 42 NY2d 440; Rosenberg v Equitable Life Assur. Socy., 79 NY2d 663; Carmel Assocs. v Turner Constr. Co., 35 AD2d 157; Goslin v La Mora, 137 AD2d 941; Mikula v Duliba, 94 AD2d 503; Engel v Eureka Club, 137 NY 100; Morris v Freudenheim, 168 Misc 2d 417; Welbilt Corp. v State of New York, 80 Misc 2d 439; Waite v American Airlines, 73 F Supp 2d 349; Beck v Woodward Affiliates, 226 AD2d 328.) III. The Madison Avenue cases are factually distinguishable and therefore do not bear upon whether plaintiff is entitled to recover purely economic loss. (Hanley v Central Sav. Bank, 255 App Div 542, 280 NY 734; 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 271 AD2d 49.)

Plunkett & Jaffe, P. C., New York City (Justin E. Driscoll, III, of counsel), for Universal Builders Supply, Inc., respondent in the third above-entitled action.

I. The court below properly affirmed the lower court’s dismissal of the cause of action for negligence under the economic loss rule: there can be no recovery in tort for purely economic harm where plaintiff has alleged neither physical injury nor property damage. (Strauss v Belle Realty Co., 65 NY2d 399; Pulka v Edelman, 40 NY2d 781; Matter of Kinsman Tr. Co., 388 F2d 821; Schiavone Constr. Co. v Mayo Corp., 81 AD2d 221, 56 NY2d 667; Beck v FMC Corp., 53 AD2d 118; Key Intl. Mfg. v Morse/Diesel, Inc., 142 AD2d 448; Plancher v Gladstein, 143 AD2d 740.) II. The court below properly held that the construction of 4 Times Square was not an “abnormally dangerous activity,” and should not be subject to “heightened standards of liability.” (Bocre *286 Leasing Corp. v General Motors Corp., 84 NY2d 685; 7 World Trade Co. v Westinghouse Elec. Corp., 256 AD2d 263; Strauss v Belle Realty Co., 65 NY2d 399; Doundoulakis v Town of Hempstead, 42 NY2d 440; Carmel Assocs. v Turner Constr. Co., 35 AD2d 157; Spano v Perini Corp., 25 NY2d 11.) III. The decision of the court below in the Madison Avenue cases is consistent with the opinion below in this case. (5th Ave. Chocolatiere v 540 Acquisition Co., 272 AD2d 23; 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 271 AD2d 49.)

OPINION OF THE COURT

Chief Judge Kaye.

The novel issues raised by these appeals — arising from construction-related disasters in midtown Manhattan — concern first, a landholder’s duty in negligence where plaintiffs’ sole injury is lost income and second, the viability of claims for public nuisance.

Two of the three appeals involve the same event. On December 7, 1997, a section of the south wall of 540 Madison Avenue, a 39-story office tower, partially collapsed and bricks, mortar and other material fell onto Madison Avenue at 55th Street, a prime commercial location crammed with stores and skyscrapers. The collapse occurred after a construction project, which included putting 94 holes for windows into the building’s south wall, aggravated existing structural defects. New York City officials directed the closure of 15 heavily trafficked blocks on Madison Avenue — from 42nd to 57th Street — as well as adjacent side streets between Fifth and Park Avenues. The closure lasted for approximately two weeks, but some businesses nearest to 540 Madison remained closed for a longer period.

In 532 Madison Ave. Gourmet Foods v Finlandia Ctr., plaintiff operates a 24-hour delicatessen one-half block south of 540 Madison, and was closed for five weeks. The two named plaintiffs in the companion case, 5th Ave. Chocolatiere v 540 Acquisition Co., are retailers at 510 Madison Avenue, two blocks from the building, suing on behalf of themselves and a putative class of “all other business entities, in whatever form, including but not limited to corporations, partnerships and sole proprietorships, located in the Borough of Manhattan and bounded geographically on the west by Fifth Avenue, on the east by Park Avenue, on the north by 57th Street and on the South by 42nd Street.” Plaintiffs allege that shoppers and *287others were unable to gain access to their stores during the time Madison Avenue was closed to traffic. Defendants in both cases are Finlandia Center (the building owner), 540 Acquisition Company (the ground lessee) and Manhattan Pacific Management (the managing agent).

On defendants’ motions in both cases, Supreme Court dismissed plaintiffs’ negligence claims on the ground that they could not establish that defendants owed a duty of care for purely economic loss in the absence of personal injury or property damage, and dismissed the public nuisance claims on the ground that the injuries were the same in kind as those suffered by all of the businesses in the community. In 5th Ave. Chocolatiere, plaintiffs’ additional claims for gross negligence and negligence per se were dismissed on the ground that plaintiffs could not establish a duty owed by defendants, and their private nuisance cause of action was dismissed on the ground that they could not establish either intentional or negligent wrongdoing.

Goldberg Weprin & Ustin v Tishman Constr. involves the July 21, 1998 collapse of a 48-story construction elevator tower on West 43rd Street between Sixth and Seventh Avenues — the heart of bustling Times Square. Immediately after the accident, the City prohibited all traffic in a wide area of midtown Manhattan and also evacuated nearby buildings for varying time periods. Three actions were consolidated — one by a law firm, a second by a public relations firm and a third by a clothing manufacturer, all situated within the affected area. Plaintiff law firm sought damages for economic loss on behalf of itself and a proposed class “of all persons in the vicinity of Broadway and 42nd Street, New York, New York, whose businesses were affected and/or caused to be closed” as well as a subclass of area residents who were evacuated from their homes. Plaintiff alleged gross negligence, strict liability, and public and private nuisance.

Noting the enormity of the liability sought, including recovery by putative plaintiffs as diverse as hot dog vendors, taxi drivers and Broadway productions, Supreme Court concluded that the failure to allege personal injury or property damage barred recovery in negligence. The court further rejected recovery for strict liability, and dismissed both the public nuisance claim (because plaintiff was unable to show special damages) and the private nuisance claim (because plaintiff could not show that the harm threatened only one person or relatively few).

*288The Appellate Division affirmed dismissal of the Goldberg Weprin complaint, concluding that, absent property damage, the connection between defendants’ activities and the economic losses of the purported class of plaintiffs was “too tenuous and remote to permit recovery on any tort theory” (275 AD2d 614). The court, however, reinstated the negligence and public nuisance claims of plaintiffs 532 Madison and 5th Ave. Chocolatiere, holding that defendants’ duty to keep their premises in reasonably safe condition extended to “those businesses in such close proximity that their negligent acts could be reasonably foreseen to cause injury” (which included the named merchant plaintiffs) (272 AD2d 23) and that, as such, they established a special injury distinct from the general inconvenience to the community at large. Two Justices dissented, urging application of the “economic loss” rule, which bars recovery in negligence for economic damage absent personal injury or property damage. The dissenters further concluded that the public nuisance claims were properly dismissed because plaintiffs could not establish special injury.

We now reverse in 532 Madison and 5th Ave. Chocolatiere and affirm in Goldberg Weprin & Ustin.

Plaintiffs’ Negligence Claims

Plaintiffs contend that defendants owe them a duty to keep their premises in reasonably safe condition, and that this duty extends to protection against economic loss even in the absence of personal injury or property damage. Defendants counter that the absence of any personal injury or property damage precludes plaintiffs’ claims for economic injury.1

The existence and scope of a tortfeasor’s duty is, of course, a legal question for the courts, which “fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [quoting Palka v Ser *289 vicemaster Mgt. Servs. Corp., 83 NY2d 579, 586]). At its foundation, the common law of torts is a means of apportioning risks and allocating the burden of loss. In drawing lines defining actionable duty, courts must therefore always be mindful of the consequential, and precedential, effects of their decisions.

As we have many times noted, foreseeability of harm does not define duty (see, e.g., Pulka v Edelman, 40 NY2d 781, 785). Absent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm. This restriction is necessary to avoid exposing defendants to unlimited liability to an indeterminate class of persons conceivably injured by any negligence in a defendant’s act.

A duty may arise from a special relationship that requires the defendant to protect against the risk of harm to plaintiff (see, e.g., Eiseman v State of New York, 70 NY2d 175, 187-188). Landowners, for example, have a duty to protect tenants, patrons and invitees from foreseeable harm caused by the criminal conduct of others while they are on the premises, because the special relationship puts them in the best position to protect against the risk (see, e.g., Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 518-519). That duty, however, does not extend to members of the general public (see, Waters v New York City Hous. Auth., 69 NY2d 225, 229). Liability is in this way circumscribed, because the special relationship defines the class of potential plaintiffs to whom the duty is owed.

In Strauss v Belle Realty Co. (65 NY2d 399) we considered whether a utility owed a duty to a plaintiff injured in a fall on a darkened staircase during a citywide blackout. While the injuries were logically foreseeable, there was no contractual relationship between the plaintiff and the utility for lighting in the building’s common areas. As a matter of policy, we restricted liability for damages in negligence to direct customers of the utility in order to avoid crushing exposure to the suits of millions of electricity consumers in New York City and Westchester.

Even closer to the mark is Milliken & Co. v Consolidated Edison Co. (84 NY2d 469), in which an underground water main burst near 38th Street and 7th Avenue in Manhattan. The waters flooded a subbasement where Consolidated Edison maintained an electricity supply substation, and then a fire broke out, causing extensive damage that disrupted the flow of electricity to the Manhattan Garment Center and interrupting *290the biannual Buyers Week. Approximately 200 Garment Center businesses brought more than 50 lawsuits against Con Edison, including plaintiffs who had no contractual relationship with the utility and who sought damages solely for economic loss. Relying on Strauss, we again held that only those persons contracting with the utility could state a cause of action. We circumscribed the ambit of duty to avoid limitless exposure to the potential suits of every tenant in the skyscrapers embodying the urban skyline.

A landowner who engages in activities that may cause injury to persons on adjoining premises surely owes those persons a duty to take reasonable precautions to avoid injuring them (see, e.g., Weitzmann v Barber Asphalt Co., 190 NY 452, 457). We have never held, however, that a landowner owes a duty to protect an entire urban neighborhood against purely economic losses. A comparison of Beck v FMC Corp. (53 AD2d 118, 121, affd 42 NY2d 1027) and Dunlop Tire & Rubber Corp. v FMC Corp. (53 AD2d 150, 154-155) is instructive. Those cases arose out of the same incident: an explosion at defendant FMC’s chemical manufacturing plant caused physical vibrations, and rained stones and debris onto plaintiff Dunlop Tire’s nearby factory. The blast also caused a loss of electrical power — by destroying towers and distribution lines owned by a utility — to both Dunlop Tire and a Chevrolet plant located one and one-half miles away. Both establishments suffered temporary closure after the accident. Plaintiffs in Beck were employees of the Chevrolet plant who sought damages for lost wages caused by the plant closure. Plaintiff Dunlop Tire sought recovery for property damage emanating from the blast and the loss of energy, and lost profits sustained during the shutdown.

In Dunlop Tire, the Appellate Division observed that, although part of the damage occurred from the loss of electricity and part from direct physical contact, defendant’s duty to plaintiffs was undiminished. The court permitted plaintiffs to seek damages for economic loss, subject to the general rule requiring proof of the extent of the damage and the causal relationship between the negligence and the damage. The Beck plaintiffs, by contrast, could not state a cause of action, because, to extend a duty to defendant FMC would, “like the rippling of the waters, [go] far beyond the zone of danger of the explosion,” to everyone who suffered purely economic loss (Beck v FMC Corp., 53 AD2d, at 121, supra).

Plaintiffs’ reliance on People Express Airlines v Consolidated Rail Corp. (100 NJ 246, 495 A2d 107) is misplaced. There, a *291fire started at defendant’s commercial freight yard located across the street from plaintiffs airport offices. A tank containing volatile chemicals located in the yard was punctured, emitting the chemicals and requiring closure of the terminal because of fear of an explosion. Allowing the plaintiff to seek damages for purely economic loss, the New Jersey court reasoned that the extent of liability and degree of foreseeability stand in direct proportion to one another: the more particular the foreseeability that economic loss would be suffered as a result of the defendant’s negligence, the more just that liability be imposed and recovery permitted. The New Jersey court acknowledged, however, that the presence of members of the public, or invitees at a particular plaintiffs business, or persons traveling nearby, while foreseeable, is nevertheless fortuitous, and the particular type of economic injury that they might suffer would be hopelessly unpredictable. Such plaintiffs, the court recognized, would present circumstances defying any appropriately circumscribed orbit of duty. We see a like danger in the urban disasters at issue here, and decline to follow People Express.

Policy-driven line-drawing is to an extent arbitrary because, wherever the line is drawn, invariably it cuts off liability to persons who foreseeably might be plaintiffs. The Goldberg Weprin class, for example, would include all persons in the vicinity of Times Square whose businesses had to be closed and a subclass of area residents evacuated from their homes; the 5th Ave. Chocolatiere class would include all business entities between 42nd and 57th Streets and Fifth and Park Avenues. While the Appellate Division attempted to draw a careful boundary at storefront merchant-neighbors who suffered lost income, that line excludes others similarly affected by the closures — such as the law firm, public relations firm, clothing manufacturer and other displaced plaintiffs in Goldberg Weprin, the thousands of professional, commercial and residential tenants situated in the towers surrounding the named plaintiffs, and suppliers and service providers unable to reach the densely populated New York City blocks at issue in each case.

As is readily apparent, an indeterminate group in the affected areas thus may have provable financial losses directly traceable to the two construction-related collapses, with no satisfactory way geographically to distinguish among those who have suffered purely economic losses (see also, Matter of Kinsman Tr. Co., 388 F2d 821, 825 n 8). In such circumstances, limiting the scope of defendants’ duty to those who have, as a *292result of these events, suffered personal injury or property damage — as historically courts have done — affords a principled basis for reasonably apportioning liability.

We therefore conclude that plaintiffs’ negligence claims based on economic loss alone fall beyond the scope of the duty owed them by defendants and should be dismissed.2

Plaintiffs’ Public Nuisance Claims

Plaintiffs contend that they stated valid causes of action for public nuisance, alleging that the collapses forced closure of their establishments, causing special damages beyond those suffered by the public.

A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons. A public nuisance is"a violation against the State and is subject to abatement or prosecution by the proper governmental authority (Copart Indus. v Consolidated Edison Co., 41 NY2d 564, 568).

A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large (see, Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 334 [citing Restatement (Second) of Torts § 821C, comment 6]). This principle recognizes the necessity of guarding against the multiplicity of lawsuits that would follow if everyone were permitted to seek redress for a wrong common to the public (Restatement [Second] of Torts § 821C, comment a; Prosser, Private Action for Public Nuisance, 52 Va L Rev 997, 1007 [1966]).

A nuisance is the actual invasion of interests in land, and it may arise from varying types of conduct (Copart Indus. v Consolidated Edison Co., 41 NY2d, at 569, supra). In the cases before us, the right to use the public space around Madison Avenue and Times Square was invaded not only by the building collapses but also by the City’s decision, in the interest of public safety, to close off those areas. Unlawful obstruction of a *293public street is a public nuisance, and a person who as a consequence sustains a special loss may maintain an action for public nuisance (Callarian v Gilman, 107 NY 360, 370). Indeed, “in a populous city, whatever unlawfully turns the tide of travel from the sidewalk directly in front of a retail store to the opposite side of the street is presumed to cause special damage to the proprietor of that store, because diversion of trade inevitably follows diversion of travel” (Flynn v Taylor, 127 NY 596, 600).

The question here is whether plaintiffs have suffered a special injury beyond that of the community so as to support their damages claims for public nuisance (see, Graceland Corp. v Consolidated Laundries Corp., 7 AD2d 89, 91, affd 6 NY2d 900). We conclude that they have not.

In Burns Jackson we refused to permit a public nuisance cause of action by two law firms seeking damages for increased expenses and lost profits resulting from the closure of the New York City transit system during a labor strike. We concluded that, because the strike was so widespread, every person, firm and corporation conducting a business or profession in the City suffered similar damage and thus the plaintiffs could not establish an injury different from that of the public at large.

While not as widespread as the transit strike, the Madison Avenue and Times Square closures caused the same sort of injury to the communities that live and work in those extraordinarily populous areas. As the trial court in Goldberg Weprin & Ustin pointed out, though different in degree, the hot dog vendor and taxi driver suffered the same kind of injury as the plaintiff law firm. Each was impacted in the ability to conduct business, resulting in financial loss. When business interference and ensuing pecuniary damage is “so general and widespread as to affect a whole community, or a very wide area within it, the line is drawn” (Prosser, supra, at 1015). While the degree of harm to the named plaintiffs may have been greater than to the window washer, per diem employee or neighborhood resident unable to reach the premises, in kind the harm was the same.

Leo v General Elec. Co. (145 AD2d 291) is inapposite. In Leo, the Appellate Division recognized a private right of action by plaintiff commercial fishermen who contended that defendant’s pollution of the Hudson River with toxic polychlorinated biphenyls (commonly known as PCBs), created a public nuisance that had a devastating effect on their ability to earn a living. *294Plaintiffs were able to establish that their injuries were special and different in kind, not merely in degree: a loss of livelihood was not suffered by every person who fished the Hudson. By contrast, every person who maintained a business, profession or residence in the heavily populated areas of Times Square and Madison Avenue was exposed to similar economic loss during the closure periods. Thus, in that the economic loss was “common to an entire community and the plaintiff [s] suffer [ed] it only in a greater degree than others, it is not a different kind of harm and the plaintifffs] cannot recover for the invasion of the public right” (Restatement [Second] of Torts § 821C, comment h).

Accordingly, in 532 Madison Ave. Gourmet Foods v Finlandia Ctr., the order of the Appellate Division should be reversed, with costs, the defendants’ motion to dismiss the complaint granted and the certified question answered in the negative. In 5th Ave. Chocolatiere v 540 Acquisition Co., the order of the Appellate Division should be reversed, with costs, the defendants’ motion to dismiss the complaint granted in its entirety and the certified question answered in the negative. In Goldberg Weprin & Ustin v Tishman Constr., the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.

In 532 Madison Ave. Gourmet Foods v Finlandia Ctr.: Order reversed, etc.

In 5th Ave. Chocolatiere v 540 Acquisition Co.: Order reversed, etc.

In Goldberg Weprin & Ustin v Tishman Constr. Corp.: Order, insofar as appealed from, affirmed, with costs.

4.5.1.2 Alaimo v. Town of Fort Ann ("The Broken Dam Case") 4.5.1.2 Alaimo v. Town of Fort Ann ("The Broken Dam Case")

This case is in many ways like the previous case, Finlandia. Should it come out the same? Does it? What facts make the difference?

New York Supreme Court, Appellate Division

63 A.D.3d 1481, 883 N.Y.S.2d 321

2009-06-25

Ann Marie Alaimo et al., Respondents-Appellants, v Town of Fort Ann et al., Apellants-Respondents.

[883 NYS2d 321]

Lahtinen, J.

Cross appeals from an order of the Supreme Court (Krogmann, J.), entered March 21, 2008 in Washington County, which, among other things, partially denied defendants’ motions to dismiss the complaint.

The Hadlock Pond dam, which had just been reconstructed, failed catastrophically on July 2, 2005. Hadlock Pond is located in the Town of Fort Ann, Washington County, and is created by a dam owned by defendant Town of Fort Ann. The original dam was constructed in the late 1800s, with subsequent repair and replacement over the years. The cost of maintaining and operating the dam is reportedly paid from revenue received from a separate taxing district (Lake Hadlock Park District), which is comprised of owners with frontage on or access rights to the pond. An apparent problem with the dam’s spillway resulted in the subject reconstruction project, which was allegedly completed in the spring of 2005. Shortly thereafter, the dam failed and numerous lawsuits ensued. In those actions, it was asserted that the plans were designed by defendant HTE Northeast, Inc., the work was performed by defendant Kubricky Construction Corporation and the materials were tested by defendant Atlantic Testing Laboratories, Ltd-

Plaintiffs, owners from the Lake Hadlock Park District, al*1482leged, among other things, causes of action in negligence and nuisance. While these upstream owners did not suffer the type of damages from sudden rushing water sustained by owners of property located downstream from the dam, they nonetheless asserted various damages including loss of use of the pond and damage to their property. Defendants moved to dismiss the complaint for failure to state a cause of action. Plaintiffs opposed the motions and cross-moved for leave to serve an amended complaint adding a cause of action alleging that they were third-party beneficiaries of the Town’s contracts with other defendants. Supreme Court dismissed one cause of action (the third cause of action which was premised upon ECL 15-0507), limited the nuisance cause of action and otherwise denied defendants’ motions. Plaintiffs’ cross motion to amend was also denied. Defendants appeal and plaintiffs cross-appeal.

We consider first defendants’ appeal, in which they argue that they did not owe a duty to plaintiffs—upstream owners—and, accordingly, that the action should have been dismissed in its entirety. Procedurally, defendants’ appeal involves a CPLR 3211 motion to dismiss, where “the court will ‘accept the facts as alleged in the complaint as true [and] accord plaintiffs the benefit of every possible favorable inference’ ” (Nonnon v City of New York, 9 NY3d 825, 827 [2007], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). “[T]he dispositive inquiry is whether [plaintiffs have] a cause of action and not whether one has been stated, i.e., ‘whether the facts as alleged fit within any cognizable legal theory’ ” (IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [2008], lv denied 11 NY3d 706 [2008], quoting Leon v Martinez, 84 NY2d at 87-88).

While the scope of duty presents a legal question involving the weighing of a variety of factors (see 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 288 [2001]; Polka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585 [1994]), defendants have framed the duty issue for purposes of their CPLR 3211 motions as dependent upon whether plaintiffs sustained only economic damages and they rely heavily upon a case where, in the wake of construction accidents that temporarily closed sections of New York City, the Court of Appeals drew the line demarcating the scope of duty to include those who sustained personal injuries or property damage, but did not extend a duty to businesses suffering solely economic loss (532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d at 290-292). One weighty factor in that case was the potential for broadly expansive liability to an indeterminate class of persons (id. at 289-291), a factor which defendants urge can be *1483analogized to the facts at hand. However, crucial distinctions keep the reins of liability more taut in the current case. First, plaintiffs are a determinable group limited to those who pay a special tax to maintain the dam and either own property adjoining the pond or have rights to use it. Second, accepting as true all facts asserted by plaintiffs, as we must at this procedural juncture (see IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d at 1356), there are sufficient allegations that plaintiffs sustained legally recognized property damages to avoid dismissal.

With regard to the potential property damages sustained by plaintiffs, we initially note that water rights generally constitute property rights (see e.g. Matter of Van Etten v City of New York, 226 NY 483, 486-487 [1919]; Matter of Niagara Mohawk Power Corp. v Cutler, 109 AD2d 403, 405 [1985], affd 67 NY2d 812 [1986]; 78 Am Jur 2d, Waters § 35). Judge Cardozo has instructed that “[t]he law of water rights is not an inflexible body of precedent” (Howard v City of Buffalo, 211 NY 241, 263 [1914]). While the rights of owners bordering a pond or lake created by a dam are generally not the same as the riparian (or littoral) rights of those adjoining a natural body of water, the circumstances surrounding the creation and use of an artificial body of water may under some circumstances give rise to rights similar to owners of property on the shoreline of a natural body of water (see Alderson v Fatlan, 231 Ill 2d 311, 319-323, 898 NE2d 595, 600-602 [2008]; Tarlock, Water Rights & Resources §§ 3:25, 3:26 [2008]; cf. City of Syracuse v Stacey, 169 NY 231, 245 [1901] [“the value of water depends largely upon surrounding circumstances”]). “Simply put, in some cases, where the usage of the artificial body of water has long been settled, it may be appropriate to treat the artificial body as the legal equivalent of a natural one” (Alderson v Fatlan, 231 Ill 2d at 322, 898 NE2d at 602; see Hammond v Antwerp Light & Power Co., 132 Misc 786, 797-798 [1928]; cf. Townsend v McDonald, 12 NY 381, 390 [1855]).

Some of the relevant circumstances here include a pond that was reportedly created over 100 years ago. Plaintiffs pay a separate tax to one defendant (the Town) for the alleged specific purpose of keeping the dam maintained and the pond intact. They assert that the pond greatly enhances the value of their property. That enhancement is allegedly directly related to the recreational opportunities and scenic setting provided by the pond created by the dam. Plaintiffs have set forth sufficient allegations to raise an issue as to whether their property should be treated as having rights similar to those upon a natural body *1484of water. The temporary loss of that pond can give rise to a cognizable claim. We agree with Supreme Court that dismissal for failure to state a cause of action is not appropriate.*

We turn to the issues raised by plaintiffs in their cross appeal. They contend that Supreme Court erred in holding that ECL 15-0507 does not confer a private cause of action. A dam owner who violates ECL 15-0507 (1) may be penalized (see ECL 71-1109 [1]), but only the Attorney General is specifically authorized to bring an action to recover those penalties (see ECL 71-1127 [1], [2]). The Second Department has held, with regard to another duty imposed by ECL article 15 (see ECL 15-1947 [2]) which is enforceable via ECL 71-1127, that a private cause of action was not created (see Nowak v Madura, 304 AD2d 733, 733 [2003]). We are unpersuaded that the statutory scheme supports a different result for ECL 15-0507 (see generally Sheehy u Big Flats Community Day, 73 NY2d 629, 633-635 [1989]).

Plaintiffs further argue that they should have been permitted to serve a second amended complaint adding a third-party beneficiary cause of action. “It is well settled that a motion to amend the complaint is addressed to the sound discretion of the court and, in the absence of a clear abuse of such discretion, the determination will not be disturbed on appeal” (Aiello v Manufacturers Life Ins. Co. of N.Y., 298 AD2d 662, 662 [2002], lv dismissed and denied 99 NY2d 575 [2003] [citation omitted]). On this record, Supreme Court acted within its discretion in concluding that the further amendment should not be permitted (see generally Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 44-45 [1985]). The remaining arguments of the parties have been considered and found unavailing.

Spain, J.P, Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is affirmed, without costs.

4.5.1.3 Harris v. Kissling ("The Future Child Case") 4.5.1.3 Harris v. Kissling ("The Future Child Case")

Oregon Court of Appeals

80 Or. App. 5, 721 P.2d 838

A8308-04873; CA A33523

1986-06-18

Argued and submitted December 9, 1985,

affirmed June 18, 1986

HARRIS et al, Respondents, v. KISSLING, Appellant.

([ AXXXX-XXXXX ]; CA A33523)

721 P2d 838

*6Thomas W. Brown, Portland, argued the cause for appellant. With him on the briefs was Cosgrave, Kester, Crowe, Gidley & Lagesen, Portland.

Margaret H. Leek Leiberan, Portland, argued the cause for respondents. With her on the brief was Kell, Alterman & Runstein, Portland.

Before Richardson, Presiding Judge, and Joseph, Chief Judge, and Warden, Judge.

JOSEPH, C. J.

*7JOSEPH, C. J.

Defendant challenges only the award of damages in this legal malpractice action. He admits his negligence in failing to file a medical malpractice action on behalf of plaintiffs and, for purposes of this case, he admits that the putative defendant hospital was negligent. See Sola v. Clostermann, 67 Or App 468, 679 P2d 317, clarified 68 Or App 381, 681 P2d 178, rev den 297 Or 547 (1984). In our review, we look at the evidence most favorable to plaintiffs.

The underlying claim arose when Mrs. Harris (hereafter plaintiff1) gave birth to her first child at Emanuel Hospital. Her Rh negative blood had combined with the unborn child’s Rh positive blood, causing Rh antibodies to form in her blood. The hospital failed to conduct proper blood tests and to innoculate plaintiff following the birth to stop the production of antibodies. The antibodies affected the blood of her unborn child during her second pregnancy. To determine the extent of harm to the fetal blood, she had to undergo amniocentesis, which involved having a needle inserted into her uterus through the abdomen to withdraw fluid four times during her pregnancy. She was told that, if the fetus were very ill, an intrauterine transfusion might have to be done and that she might have to go to Denver for that procedure. She monitored the fetus’ movements three times a day at her physician’s direction. On two occasions, no movement was detected, which caused her to fear that the baby was dead. She had to rush to the hospital for tests to determine if the fetus were dead or in distress. Tests showed no fetal problems on those occasions.

Twice plaintiff had to undergo a stress test in which fluid was dripped into her arm intravenously to stimulate contractions; the tests had to be monitored carefully to avoid putting her into premature labor. The doctors observed the baby’s heartbeats to determine how it would cope with the stress of contractions. During the eighth month of pregnancy, the baby stopped moving again, and the parents’ efforts to get it to move failed. The baby was not dead, but the physicians felt that it was not moving as much as it should and that it *8might be better off if born prematurely. The child was delivered by Caesarean section the next day. Very soon after its birth, the baby exhibited respiratory distress, even though plaintiff had been given steroids during the pregnancy to develop the baby’s lungs in anticipation of a premature delivery. On the third day of his life, the infant required a blood transfusion, and the mother was unable to see her child for three days. The baby also developed anemia and jaundice, but he was released from the hospital after two weeks and apparently suffered no permanent damage.

Physicians testified that plaintiff will always be at very high risk in a pregnancy and that Rh problems generally get worse with each succeeding birth. At least one physician recommended that she not get pregnant again. Another testified, and defendant admits, that there is a 75 percent chance that the next baby would be at least as severely affected as the last one. That physician also explained that, if plaintiff got pregnant again, he would recommend amniocentesis every two weeks during the last four months of her term. He testified that there was a ten percent chance that intrauterine transfusions would be required every two weeks in the last two months of pregnancy. There is extensive expert testimony about health problems, their severity and their likelihood.

Defendant asserts six assignments of error. First, he argues that the judge should not have submitted plaintiffs claim for damages for negligent infliction of emotional distress, because she did not plead or prove that she suffered any physical injury or any independent basis of liability. We disagree. Plaintiff did plead that, as a result of the hospital’s failure to immunize her, her body produced antibodies which attacked the blood of her unborn child. The failure to immunize resulted in an irreversible physical change in her blood, which has permanently impaired her ability to have a normal pregnancy. We point out, however, that a physical injury is not necessary to support an award of damages for emotional distress if the person seeking damages is the direct victim of tortious conduct. See McEvoy v. Helikson, 277 Or 781, 562 P2d 540 (1977); Macca v. Gen. Telephone Co. of N.W., 262 Or 414, 495 P2d 1193 (1972); Saechao v. Matsakoun, 78 Or App 340, 344, 717 P2d 165 (1986). In this case, defendant admits that plaintiff received negligent medical care. As the direct victim of the hospital’s negligence, she was entitled to plead a claim *9for the emotional distress which directly flowed from that conduct.

In Fehely v. Senders, 170 Or 457, 474, 135 P2d 283 (1943), the Supreme Court concluded that the apprehension of a pregnant woman that her unborn child might be caused harm from the injury to her by the negligence of another was properly taken into account in estimating her damages. Defendant in this case argues that the Fehely reasoning does not apply, because the woman in that case suffered a physical blow to the abdomen which gave rise to her fear and that, in this case, plaintiffs claim arose from the hospital’s omission to act, not from an “objective physical injury.” We do not accept that distinction. The emotional distress suffered on account of the potential effects on her unborn child’s health was a natural consequence of the hospital’s negligence, just as the plaintiff in Fehely feared the consequences to her unborn child. The trial court properly submitted the emotional distress claim to the jury.

Defendant next argues that the trial court erred in denying his motion for a directed verdict, because plaintiff failed to introduce sufficient evidence to establish that the hospital’s negligence deprived her and her husband of the chance of having healthy children in the future. Again, we disagree.

Defendant categorizes the claim as one for an injury and argues that the evidence did not establish a reasonable medical probability of a causal connection between the hospital’s negligence and plaintiffs’ being deprived of the chance to have future healthy children. A plaintiff must establish a causal relationship between the conduct and the harm to support a recovery in a personal injury case, and the evidence must be sufficient to establish that the relationship is reasonably probable, not simply possible. Feist v. Sears, Roebuck & Co., 267 Or 402, 407, 517 P2d 675 (1973). In this case the medical evidence demonstrates that plaintiff is at high risk of having Rh problems in any other pregnancy. There is a 75 percent chance that each fetus would be at least as affected as the last. There is a one-in-four chance that a baby would be born prematurely. There is a ten percent chance that a fetus would need four intrauterine blood transfusions in any future pregnancy. For each pregnancy, there is a 20 percent chance *10that the baby will develop major problems, such as cerebral palsy, blindness or death, and a five percent chance of fetal death.

If plaintiff had received immunization, the chance of an unborn child needing an intrauterine transfusion would have been one in a thousand. As a result of not being immunized, she has a 100 times greater chance than a normal woman of having to undergo the blood transfusions, and the transfusions would increase the chance of the child’s suffering serious congenital conditions. Furthermore, the evidence shows that the condition is permanent. That evidence provides the basis for a jury to find a causal relationship between the hospital’s negligence and plaintiffs’ claim of deprivation of the chance to have future healthy children. We do not agree with defendant’s assertion that plaintiffs’ claim depends on their conceiving a child. The claim is for a lost opportunity, whether or not they take advantage of it.

Defendant’s third and fourth assignments of error are closely related. He argues that the trial court erred in admitting evidence of future medical expenses and in denying a directed verdict on that damage claim. He contends under both assignments of error that the evidence as to the future medical expenses was too speculative. Both the Supreme Court and this court have held that a jury can consider future possibilities in determining damages and that evidence of the degree of likelihood should be admitted for the jury’s determination. Feist v. Sears, Roebuck & Co., supra; Henderson v. Hercules, Inc., 57 Or App 791, 646 P2d 658 (1982); Pelcha v. United Amusement Co., 44 Or App 675, 606 P2d 1168, rev den 289 Or 275 (1980). That is exactly what was done in this case. The extensive medical testimony as to the likelihood of medical treatment being necessary has already been discussed. In addition to the medical testimony, both plaintiffs also testified as to the likelihood of their having more children in the future. The evidence of future medical expenses was properly allowed.

In Hansen v. Bussman, 274 Or 757, 785, 549 P2d 1265 (1976), the Supreme Court affirmed the denial of a motion for a directed verdict in a medical malpractice claim on the issue of damages. The defendant claimed that the evidence was insufficient to show “how much” retardation resulted from *11the doctor’s negligent failure to diagnose. After referring to the need for proving the amount of damage with as much certainty as is reasonably possible, the court quoted Fehely v. Senders, supra, 170 Or at 471:

“It is even more desirable, however, that an injured person shall not be deprived of substantial compensation merely because he cannot prove with complete certainty the extent of harm he has suffered. Particularly is this true in situations * * * where the harm is of such a nature as necessarily to prevent anything approximating accuracy of proof.”

In the case before us, many variables unavoidably enter into determining what future medical expenses might be necessary, and complete “accuracy of proof’ cannot be expected. The evidence presented addresses the likelihood and types of medical treatments, their costs and the chance of future pregnancies. The evidence of future damages was as certain as was reasonably possible. The trial court did not err in denying a directed verdict.

Defendant next argues that the trial court erred by not requiring an election between the claim for damages caused by deprivation of the chance to have future healthy children and the claim for future medical expenses. He contends that the submission of both “claims” to the jury allowed a double recovery for a single wrong. It is not at all clear that the issue in this assignment was ever raised in the trial court. In any event, the claims were presented as alternative theories of damages for different consequences of the same wrongful conduct, and they were submitted to the jury as alternatives.2 That was proper.

Defendants’ final assignment of error does not merit discussion.

Affirmed.

4.5.1.4 G.M.M. v. Kimpson ("The Ethnicity-based Lead Paint Case") 4.5.1.4 G.M.M. v. Kimpson ("The Ethnicity-based Lead Paint Case")

Tort damages seek to reflect how much damage was done by the defendant, but sometimes, how much damage was done will depend on the life circumstances of the plaintiff, such as his or her race or ethnicity. Is that fair? How does this court approach that problem?

United States District Court for the Eastern District of New York

116 F. Supp. 3d 126

No. 13-CV-5059

2015-07-29

G.M.M., a minor child by his mother and natural guardian, Niki HERNANDEZ-ADAMS, and Niki Hernandez-Adams, individually, Plaintiffs, v. Mark KIMPSON, Defendant.

No. 13-CV-5059.

United States District Court, E.D. New York.

Signed July 29, 2015.

*128Steven Kenneth Fránkel, Frankel, Rudder and Lowery, Stephen M. Cantor, Stephen M. Cantor, P.C., New York, NY, for Plaintiffs.

Roger V. Archibald, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

JACK B. WEINSTEIN, Senior District Judge:

Table of Contents

I.■ Introduction.. .........................................................128

II.Communities Disproportionately Harmed By Lead-Based Paint..............129

III. Facts..................................................................130

A Summary of Case ■ 130

B. Expert Testimony Regarding Ethnicity-Based Statistics 131

1. Plaintiffs’ Experts..................................;............131

2. Defendant’s Expert...... 135

IV. The McMillan Rule.....................................................135

A. Law 135

1. The Case..............'.........................................135

2. Scholarship ...;..........................;....................140

a. Use of Minority-Specific Data in Tort Cases....................140

b. Use of Minority-Specific Data in Lead-Based Paint Cases........142

3. Race and Éthriicity.......................................'.......143

a. United States Census........................................143

b. Critiques of Census Practices............................. 146

B. Application .....148

V. Life, Worklife, and Educational Attainment Expectancy Tables...............149

A History 149

B. Law _ .....151 '

_ C. Application ' .....152

VI.Categorical Advantages Afforded to Members of Historically Disadvantaged Minorities Not .Inconsistent with Excluding Evidence of Race or Ethnicity Where Appropriate............................................ 154

A. Law .....155

B. Application 157

VII.Constitutional Requirements Supplementing Rule 403 of the Federal Rules' , of Evidence..........................................................157

VIII.Conclusion.............................................................159

I. Introduction

Posed is the question: can statistics based on the ethnicity (in this case, “Hispanic”) of a child be relied upon to find a reduced likelihood of his obtaining higher ' *129education, resulting in reduced damages in a tort case? The answer is no.

A mother suing on behalf of herself and her child claimed injury to the infant’s central nervous system caused by his absorption of lead dust. The defendant was the owner and lessor of the apartment the plaintiffs lived in during thé child’s gestation, birth, and first year of life. The apartment, the jury found, contained lead-based paint that had not been properly removed or encapsulated. The total verdict in favor of plaintiffs was $2,005,000.

When .the case was tried, the child was less than four years old. A critical factor in determining damages required ascertaining the infant’s prospects for obtaining postsecondary education degrees had he not suffered from lead poisoning. In contesting damages, defendant’s attorney attempted to show, through the use of expert economic testimony, statistics and cross-examination of the plaintiffs’ experts, that because the child was “Hispanic,” his likelihood of obtaining a Bachelor, Master, or Doctoral 'degree, and any corresponding elevated income, was improbable.

The father has a baccalaureate degree, the mother has a Master of Fine Arts; both held responsible income-generating jobs; the family was stable; and the parents were caring. Based upon his specific family background, had the child not been injured, there was a high probability of superior educational attainment and corresponding high earnings. Treated by experts as a “Hispanic,” his potential, based on the education and income of “average ‘Hispanics’ in the United States,” was relatively low.

At trial, the court ruled that, for the purposes of projecting damages, the specific characteristics of the child and his family, rather than the characterization of the child as a member of a particular ethnic group, must be used in determining damages. The ruling was based on the same constitutional and other factors relied upon in McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y.2008). That case held that statistical evidence used to prove that a spinal cord-injured “African-American” was likely to survive for fewer years than occidental persons with similar injuries violated the equal protection and due process clauses of the United States Constitution, and was inadmissible in computing life expectancy and damages.

II. Communities Disproportionately Harmed By Lead-Based Paint

Lead-based paint is the primary means by which children are exposed to leád. See Center for Disease Control and Prevention (“CDC”), Preventing Lead Poisoning in Young Children 1, 4 (2005), http:// www.cdc.gov/ncehAead/publications/Prev LeadPoisoning.pdf (last visited July 28, 2015). Lead poisoning is often caused by ingesting paint chips or dust, likely to be found in older buildings in low-income neighborhoods. See CDC, Managing Elevated Blood Lead Levels in Young Children 4, 17 (2002), http://www.cdc.gov/nceh/ lead/casemanagement/managingEBLLs. pdf (last visited July 28,2015).

Lead paint poisoning, while dangerous for everyone, tends to manifest itself primarily in young children. Not only are young children more likely than adults to ingest lead paint, but children’s bodies are particularly susceptible — biologically and developmental^ — to the effects of lead paint. The poisoned population has other defining-characteristics, namely that the young children are generally members of minorities from low-income families. Such families often oc-: cupy the older, deteriorating urban housing where lead paint remains prevalent. Their children have high risks of *130exposure to lead paint, especially since the severity of the physical and psychological effects of lead paint depends oh the amount of lead paint ingested. .

Laura Greenberg, Compensating the Lead Poisoned Child: Proposals for Mitigating Discriminatory Damages Awards, 28 B.C. Envtl. Aff. L.Rev. 429, 431-32 (2001).

Because low-income and minority families are more likely to occupy older homes with lead-based paint, the majority of children poisoned by lead in the United States are poor African-American and Latino children. See Martha Chamabas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender, and Tort Law 1, 138-53 (2010) (analyzing how tort law and lead-paint case damage awards demonstrate racial and ethnic bias in the judicial system); CDC, Using GIS to Assess and Direct Childhood Lead Poisoning Prevention: Guidance for State and Local Childhood Lead Poisoning Prevention Programs 1, 2 (2004), http://www.cdc.gov/nceh/lead/, publications/UsingGIS.pdf (last visited July 28, 2015) (concluding that children at greatest risk for lead poisoning are those whose families are poor and bve in substandard housing built before 1950, and that these children tend to be “African-American” or of “Hispanic” ethnicity); see also CDC, Surveillance for Elevated Blood Levels Among Children-United States 1997-2001, 52 Morbidity and Mortality Weekly Report No. ss-10 at 5 (2003) (discussing the lasting harms of lead exposure on children and the preventative measures taken to reduce such exposure); James L. Pirkle, Exposure of the US. Population to Lead, 106 Envtl. Health Perspectives !, 11 (1998) (asserting new efforts must address the difficult problem of lead paint exposure, especially in older houses, as web as lead in dust and' soil to remedy the prevalence of elevated blood-lead levels in chb-dren); Debra Brody et al, Blood Lead Levels in the U.S, Population, 272 J. Am. Med. Ass’n 277, 279 (1994) (highlighting how exposure to lead at levels that may adversely affect the health of children remains a problem especially for those who are minority, urban, and from low-income families).

The building containing plaintiffs’ apartment was old. See Jury Instructions and Signed Verdict Sheet 6, July 10, 2015, ECF No. 83 (“Jury Instructions and Verdict”). It contained lead paint, which was, at least in part, covered by sheetroek or new paint installed by the landlord before the family moved in. See Trial Transcript (“Trial Tr.”) 677:15-678:5, July 6, 2015.

“Until recently, children were identified as having a blood lead ‘level of concern’ ” if their blood-lead test resulted in “10 or more micrograms per decibter of lead in blood.” CDC, Lead, Update on Blood Lead Levels in Children, http://www.cdc. gov/nceh/lead/ACCLPP/blood_lead_levels. htm (last visited July 28, 2015)., In expanding protection against this serious health danger, the CDC now suggests professional monitoring of children with five micrograms per deciliter of lead in the blood. Id.

The child in this case had almost ten micrograms per deciliter of lead in his blood. See Trial Tr. 344:8-13, June 30, 2015.

III. Facts

A. Summary of Case

This case was tried by a jury. See G.M.M. v. Kimpson, 92 F.Supp.3d 53, 60-61, No. 13-CV-5059, 2015 WL 1285704, at *5 (E.D.N.Y. Mar. 19, 2015) (denying plaintiffs’ motion for summary judgment and holding that fact issues existed as to whether landlord’s renovation encapsulated paint and whether exposure to lead caused infant’s condition). After a two-*131week trial with extensive expert testimony, the jury returned a verdict in favor of plaintiffs on three theories: that the defendant (1) violated the New York City Childhood Lead Poisoning Prevention Act; (2) was negligent; and (3) violated New York Real Property Law section 235-b, which provides for an implied warranty of habitability in residential leases. See Jury Instructions and Verdict 19.

The infant plaintiff, G.M.M., and his mother, Niki Hernandez-Adams, were tenants in the basement apartment located at 490 MacDonough Street in Brooklyn, New York. Id. at 6. They alleged that defendant Mark Kimpson, their landlord, and the owner of the three-family apartment house at that location, was liable for the infant’s elevated blood-lead levels. Id. This blood-lead level was first discovered by G.M.M.’s pediatrician when the infant was one year old. Id.

Defendant argued that he had sufficiently encapsulated the hazardous lead-based paint in the apartment. Id. at 7. He contended that plaintiffs’ dog severely scratched the walls and the moldings in the apartment, releasing lead dust. Id. He also maintained that the infant’s cognitive and behavioral difficulties resulted from other medical conditions of his mother during gestation. Id.

B. Expert Testimony Regarding Ethnicity-Based Statistics

During trial, testimony regarding the future economic prospects of the child-plaintiff, had he not been poisoned with lead, were discussed by three experts: Dr. Kenneth William Reagles, plaintiffs’ forensic rehabilitation expert, Dr. Frank Tinari, plaintiffs’ forensic economist, and Dr. Bernard F. Lentz, defendant’s forensic economist.

1. Plaintiffs’ Experts

Dr. Reagles is a specialist in vocational rehabilitation and a retired professor of rehabilitation services at Syracuse University. See Trial Tr. 396:18-25, 397:15-17, June 30, 2015. He characterized his vocation as “render[ing] opinions about what a youngster might have become had [he] not become disabled. And then to contrast that with [his] circumstances presently and the barriers to education and employment that are confronted by individuals such as [G.M.M.].” Id. at 399:13-15, 399:20-25, June 30, 2015.

Reagles’ direct testimony predicted what the child would have become without the injury. He noted the general “Hispanic” background of the boy, but placed primary reliance on the parents’ specific backgrounds:

The first question is what would this child ha[ve] become had he not incurred neurological communication behavioral issues — Then the second question becomes, based upon the deficits that have been identified by the neuropsycholo-gists in particular as well as physicians and educational personnel, what other kinds of difficulties that he faces today?

[T]he first question was addressed by a standard methodology of predicting what individuals will become. And it is based upon, as you might expect, the educational and vocational accomplishments of parents and adults who are around a child during that developmental process. We know that adults have a profound influence on children with regard towards values, towards education and work.

[T]he first thing I did was to take a history from [G.M.M.’s] mom with regard to not only her family history, but also the father’s family history. I was particularly interested in what their edu*132cational accomplishments were, what their work has been. I was interested with regard to the parents specifically, whether both parents are present in the home, and they have been during the developmental process because, we know if one of the parents is not there, then the child faces some difficulties.

We look at such .things as the family income. We look at ethnicity became those are factors. And based upon those factors, [I was] able to render an opinion about what [G.M.M.] might have become had he not been impaired by the deficits that have been described by the neuro-psychologists and others[.] ...

... This is a family that has had some substantial educational accomplishments. I identified 14 individuals, grandparents, aunts and uncles and parents, for whom we knew the educational accomplishments.

Of those 14 individuals, a hundred percent of them , had graduated from high school.. 75 percent of them had had some college education. 60 percent of .them had completed baccalaureate degrees. And 30 percent of them had completed master’s, degrees. So here’s a family that if you look at that picture, you have a picture of not only educational accomplishment, but it may. be inferred positive values towards education.

... [T]he educational accomplishments of the parents can be used to predict the educational accomplishments of children .... [T]here are literally hundreds of studies that have been done to show the relationship between parental and family educational accomplishments and the educational accomplishments of children.

[T]he first opinion that I. was asked to render is what this child might have become had he not been rendered disabled. And it’s my opinion that based upon the evidence that I reviewed that this child would have been capable of a master’s degree, that is two years of study beyond a four-year college degree, and may have, been capable of what we call a professional degree, that would be a Ph.D....

... [W]e see children achieving higher levels of education, educational achievement, than their parents as a generality. . And it is particularly true in Hispanic families. And one of the reasons for that is that the Hispanic population is a relatively young population within the general fabric of our society. Many of them have been here for maybe one or two generations. And they came from backgrounds, many of them, without substantial educational histories.

So even ... within the Hispanic-population there is even a more pronounced tendency for their children to have higher levels of educational achievement than their parents.

Id. at 400:19-406:1, June 30, 2015 (emphasis added).

On cross-examination, defense counsel emphasized the low general educational backgrounds of the ethnic group he characterized as “Hispanics.”

Q ... Now, in coming up with [your] conclusion, did you look at national statistics in general" for males who attain master’s degrees and professional degrees, just in general of the population, all people considered, whether they be whites, blacks, Hispanics, Asians, just the entire population, the plurality of the population, did you look at that?

A I did take, that into consideration. And as I testified earlier, I was fo*133cused on the population of individuals whose ethnicity was Hispanic.

Q Okay. No, I understand that, but I just want to know if in your conclusions if that was .part of it, you looked at the whole population, correct?

A Well, when you say “the whole population,” I relied upon the normative information ... [and] the literally hundreds of other studies that have looked at the relationship not only of parental educational accomplishment but also divided by such factors as ethnicity, socioeconomic status, number of children in the household, whether both parents were present in the household.

Q My question is ... did you first look at what the general population is doing in terms of the attainment of-master’s degrees and professional degrees as a threshold matter? ....

A Yes, I did....

Q For example, in [one 2009] study, ... they are looking at males, just males, the entire male population, they are saying 41 percent of them had' bachelor’s degrees.... And then they had other tables, didn’t they? Didn’t they have tables that zeroed in on specific ethnicities, correct?

Isn’t it true, though, Dr. Reagles, that in those tables the attainment ofHispan-ics of attaining master’s degrees was in the neighborhood of 7.37 percent ?

Q Additionally, in terms of professional degrees, less than 2 percent of Hispanic males earned professional degrees. The exact number is 1.97 percent ____

Q Okay. So when you testified earlier that [G.M.M.] has a better than 70 percent chance of earning a master’s degree and a better than 50 percent chance of earning a professional degree, how do you come to that conclu■sion ... ?

A Well, again, that was my testimony, at the .time of our telephone conference. I revisited that particular model and concluded that I couldn’t rely. upon that model exclusively. I went back to the way that we have done this for years and years ... and utilized the correlational studies -that are in the literature that were cited in my report in arriving at the opinion not with regard to a percentage of probability, but an opinion that had this, the deficits not happened to [G.M.M.], that he would have been capable of achieving a master’s degree and perhaps even a professional degree.

Q [C]orrect me if I’m wrong now, but you look at the parents, but you also have to look at the ethnicity of the individual, right?

A Yes.

Q Their lifestyle, the salaries generated by the parents?

A Socioeconomics.

Q You have to go — it’s like an accordion and you’re going further and further out because you have to get all of that in .order to compress the accordion and get the probability quotient, correct? Would you agree with that assessment?

A With the correlation coefficient.

Q Okay. So in this particular case, ... would you say that it is a high probability, a medium probability or a low probability that [G.M.M.], a Hispanic male, will attain •a master’s degree?

AI think it is a moderately high proba- . bility that he would, based upon the *134 family circumstances that he came from, had this incident riot occurred, he would have had a moderately high probability of completing a master’s degree.

Q Now, you’re also agreeing with me with the figures that I delineated earlier regarding Hispanics in general and the attainment of master’s degrees and professional degrees, correct?

Id. at 417:19-43031, June 30, 2015 (emphasis added).

Precluding an answer, the court, on its own motion, ruled, excluding ethnicity as a factor in damages computations:

Excuse me. I won’t allow you to continue along those lines. Hispanics is too general a category.... You’ll have to be more definitive with respect to this particular family. We have professors as well as gardeners who are Hispanics, and I don’t believe that we ought to go forward in federal court with that assumption of uniformity....

Now, ladies and gentlemen, [addressing the jury] ... I am now instructing you that as a matter of constitutional and federal law, it is inappropriate where there is a case involving an individual with a Hispanic background to rely upon a table which is undifferentiated as to Hispanic individuals.

Id. at 430:23-431:7, 436:15-20, June 30, 2015 (emphasis added).

The court then inquired of the expert:

[I]f we struck from the information that you’re relying upon undifferentiated statistics with respect to, quote, Hispanics, unquote, in what way, if any, would your testimony be changed?

Id. at 436:24-437:2, June 30, 2015.

Dr. Reagles responded: “Not materially and substantially at all.” Id. at 437:11-12, June 30, 2015.

After the jury left the courtroom, the court explained that it was relying on its decision in McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y.2008), and the case’s “[discussion of race sociology and statistics.” Id. at 441:11-14, June 30, 2015. Neither party objected to the ruling. Id. at 441:15-20, June 30, 2015.

On July 6, 2015, before plaintiffs’ separate economic expert, Dr. Tinari, took the stand, the court reminded the jury of its June 30, 2015 ruling, adding:

I am now instructing you that as a matter of constitutional and federal law it is inappropriate where there is a case involving an individual with a Hispanic background ... to rely upon ... assumptions by a witness [premised on ethnicity.]

You cannot treat the child as an average Hispanic but [may] only [treat] him with respect to his specific characteristics, such as the mother’s degree, where he is living, the kind of family he is coming from, et cetera____But you cannot say that, for example, Hispanics generally go to college less than others and therefore use that statistic or that analysis or that chart.

Trial Tr. 576:19-577:8, July 6, 2015 (emphasis added). Plaintiffs’ economic expert was then instructed as follows:

I’m instructing you now, doctor, that all your testimony with respect to your projections must be based on this direction I’m now giving to the jury[.]

Id. at 577:10-12, July 6, 2015.

The economic expert projected plaintiffs’ total future economic losses to be between *1352.5 and 4 million dollars. Id. at 561:13-16, July 6, 2015. He explained that he had “not included in [his] opinion any assumption of what an average Hispanic would do.” Id. at 578:3-5, July 6,2015.

2. Defendant’s Expert

Dr. Lentz was defendant’s forensic economist. See Trial Tr. 1128:5-11,19-21, July 8, 2015. He holds a doctorate in economics and has conducted research and taught at Virginia Tech, Ursinus College, the University of Pennsylvania, and Drexel University. Id. at 1129:25-1135:6, July 8, 2015. Dr. Lentz testified about his analysis of occupational inheritance and the plaintiff-child’s measure of economic loss. Id. at 1128:5-1174:22, July 8, 2015. He found that, because the child-plaintiff was “Hispanic,” his future economic loss of earnings was lower than that projected by plaintiffs’ forensic economist. See Trial Tr. 1140:15-1141:6, 1148:15-19, 1159:16-1160, July 8, 2015. The basis for the assessment was rooted in the following data:

Earning Capacity. According to the National Center for Education Statistics, 2.1 % of Hispanic males held a Master’s degree or better in 2013 while 13.1 % held a Bachelor’s or higher degrees. It can also be noted that 73.1 % of Hispanic males held a high school degree or better.

See Daubert Hr’g, Court Ex. 8-F at 5, June 22, 2015 (emphasis added).

The following colloquy took place between the court and Dr. Lentz:

THE COURT: [B]efore you testify, Doctor____I note that your report relies upon Hispanic males’ education statistics ....

THE WITNESS: Yes.

THE COURT: And Hispanic males’ academic achievements. THE WITNESS: Correct.

THE COURT: On the average.

THE WITNESS: Yes.

THE COURT: I have ruled that it is unconstitutional to base damages on the characteristics of a person injured as a[ ] Hispanic or a member of any other ethnic group. So all of your answers should be based upon individual characteristics and not the general characteristics of a group, ethnic group. Is that clear to you[?]

THE WITNESS: I believe so, sir.

Trial Tr. 1140:15-1141:6, July 8, 2015 (emphasis added).

Taking the court’s ruling into consideration, Dr. Lentz ultimately projected that if the plaintiff-child obtained a baccalaureate degree, his total future economic loss would amount to $2,509,542. Id. at 1160:2-6, July 8,2015. If he earned only a high school diploma, his total -future economic loss was projected at $1,384,776. Id. at 1160:7-12, July 8, 2015. A career pursued in the “arts and design” field after earning one or more postsecondary education degrees was estimated to yield $1,522, 067. Id. at 1159:16-23, July 8, 2015.

IV. The McMillan Rule

A. Law

1. The Case

McMillan ruled on the following question:

[W]hether ... “racially” based statistics and other compilations may be relied upon to find a shorter life expectancy for a person characterized as an “African-American,” than for one in the general American population of [multiracial] backgrounds.

McMillan, 253 F.R.D. at 248. The court held:

*136“Racially” based life expectancy and related data may not be utilized to find a reduced life expectancy for a claimant in computing damages based on predictions of life expectancy.

Id.

The case involved a claim by an “African-American” man. injured in the 2003 Staten Island Ferry crash. Id. “[Statistical evidence [had been] introduced suggesting that a spinal cord-injured African-American was likely to survive for fewer years than persons of other races with similar injuries.” Id. (citation omitted). Three arguments were made by the court in support of its decision to exclude race-based actuarial tables. Id. First, it pointed out that the tables were inadequate as a matter, of actuarial science because race is a biological fiction. Id. at 249-50. Second, it found that lifespan variations among races were attributable largely to socioeconomic status, not biology. Id. at 251-52. Third, it held that race-based actuarial tables violated the equal protection and due process clauses of the United States Constitution. Id. at 255-56.

McMillan’s full analysis is set out below because the “ethnicity” factor in the present case is treated in the same way as the “race” issue in McMillan.

I. Factual Unreliability of “Race”Based Statistics

... Reliance on “race”-based statistics in estimating life expectancy of individuals for purposes of calculating damages is not scientifically acceptable in our current heterogeneous population.... “[R]aee” is largely a social construct inappropriate in assessing damages, in a negligence suit.

A. “Race” as Biological Fiction

Franz Boas, [a] Columbia University [anthropologist, pointed out that “every classification of [human]kind must be more or less artificial;” he exposed much of the false cant of “racial” homogeneity when he declared that “no racial group is genetically pure.”

The ideology of race arose as a rationalization and justification for human slavery at a time when Western European societies were embracing philosophies promoting individual and human rights, liberty, democracy, justice, brotherhood, and equality.... Alexis de Tocqueville, ... an. early observer of American life[,] was among the first to recognize this conception of race, writing that “the existence of.innate and immutable racial characteristics is to be regarded with skepticism and theories founded upon such doctrine are mere rationalizations for slavery .and other forms of racial oppression.”

[An] , emphasis on identifying immutable differences between “racial” groups[] can be expected only to maintain and reinforce existing racial inequality, in that [ ] adherents [to classifications based on race] indirectly argue that no degree of government intervention or social change will alter the skills and abilities of different racial groups. The disproportionate representation of some “racial” groups ... among lower socioeconomic tiers can therefore be explained as an unavoidable byproduct of human evolution. Yet reinforcing this widely held social stereotype of racial inferiority risks limiting indmdual human potential, in that individuals’ abilities and opportunities would likely be assessed in relation'to their racial group.

... [I]t is difficult to pinpoint any “racial identity” of an individual through his or her genes. International gene mapping projects have only revealed variations in *137strings of DNA that correlate with geographic differences in phenotypes among humans around the world, the reality being that the diversity of human biology has little in common with socially constructed “racial” categories.

While “race” may be a social construct, many policymakers and courts insist that it remains a significant predictor of access to societal goods and resources. “Racial” and “ethnic” disparities in quality of health care, for example, remain substantial across a broad range of medical services. But those disparities are associated .with socioeconomic differences and tend to diminish significantly and, in a few cases, to disappear altogether when socioeconomic factors are controlled. By allowing the use of “race”-based life expectancy tables, which are based on historical data, courts are essentially reinforcing the underlying social inequalities of our, society rather than describing a significant biological difference.

B. Unreliability of “Racial” Categories

In 1977, the Office of Management and Budget (OMB) issued Statistical Policy Directive Number 15, “Race and Ethnic Standards for Federal Statistics and Administrative Reporting.” The directive established four “racial” categories (“American Indian or Alaskan Native,” “Asian or Pacific Islander,” “Black,” and “White”) for federal legislative, programmatic and administrative purposes. The OMB revised these standards in October of 1997, creating five groups instead of four by splitting “Asian” and “Native Hawaiian or Other Pacific Islander.” The 2000 census also added a sixth “racial” set, “Some Other Race,” and allowed responders to choose more than one category..:.

Despite the 2000 census’ more detailed self-categorization system, demographic studies that use pre-2000 census data continue to define “race” by using the 1977 OMB directive.

Life expectancy tables are .based on historical data and thus largely-rely on the OMB’s former archaic “racial” analysis. This means that-the tables frequently employed by ¡courts in determining- tort damages fail to account for the [United States’ multiracial society] —

C. Socio-Economic Status and “Race”

... While many sociologists, epidemiologists, and other researchers have noted the broad influence of race/ethnicity and socioeconomic position on functional status, active life expectancy, and mortality, the influence of socio-economic factors is often masked by “race.” Reliable studies have found that the relationships between socioeconomic position or race/ethnicity and health may be modi-fled by geographic influence and community conditions that contextualize and structure these relationships — [W]hile race-based mortality ratios and absolute risks are important, .there are clear limitations to their use as indicators of health, including the appropriateness and reliability of the “racial” and “ethnic” categories used in statistical analysis.

The impact of socio-economic status (SES) on life expectancy has long been recognized. Aside from baseline health, the next dominant explanation for the worse health outcomes for “Blacks” and “Hispanics” was SES. In contrast, health insurance and health behaviors explained little of the raeial/ethnic differences in health outcomes.

More, detailed investigations into the life expectancy gap between “White” and “Black” Americans have shown that life *138expectancy varies within “racial” groups by economic characteristics and geography. Given the significant impact of socio-economic factors, it is natural for courts to be concerned with the use of life expectancy tables that ignore important distinctions such as education, place of residency, and employment, collapsing all members of a “racial” group into a single number. Gross statistical tables do not answer the question: [for example] how does the life expectancy of well-off or middle-class “African-Americans” compare to that of poor “African-Americans?”

In a national study of twenty-three local areas, researchers found that “African-American” residents of advantaged urban areas have substantially higher life expectancies than their poor urban counterparts; in some cases their life expectancies approach the white national average. That study also found that “White” residents of urban poor areas have mortality profiles comparable to those of “Black” residents of poor rural areas and “Blacks” nationwide, and somewhat worse than residents of relatively advantaged “Black” urban areas. In fact, “African-Americans” residing in the advantaged population of New York City fare as well as “Whites” nationwide.

When determining tort damages based upon an injured individual’s future life span and potential needs, consideration must be given to the fact that changing a person’s socio-economic status may have an impact upon his or her life expectancy. While studies have found that expanding health insurance alone would not greatly impact the life expectancy or morbidity of individuals, it may well be that elevating a group of individuals from a lower socioeconomic class to a higher one would change their overall cause-of-death structure and enhance their health and lifespan____

The findings of the studies cited above reinforce the conclusion that despite a documented gap in life expectancy between “Black” and “White” Americans, the simple characterization of individuals as “Black” or “White” is not only misleading, it risks masking the complex interactions between a host of ... socioeconomic [and other] factors —

D. Legal Decisions on “Race”

A 1905 decision by a federal court in New York relied on “race”-based statistics and “racial” categories in reducing damages in an admiralty case. [See The Saginaw and The Hamilton, 139 F. 906 (S.D.N.Y.1905)]. Two steamships collided, resulting in the deaths of some passengers and crewmembers. Wrongful death actions were brought for six “Colored” and two “White” persons killed in the accident. Rejecting the use of standard mortality tables to predict the life expectancies of all the deceased, the court cited census data summarizing differences in “White” and “Colored” life expectancies in justifying its reduction of awards. At that time census respondents did not have the option of selecting more than one “race” to identify themselves. [O]n average The Saginaw court lowered the awards for the deaths of blacks ten percent more than the awards for the deaths of whites and the court slashed three of the awards for blacks by forty percent or more.

It should be noted in assessing [this case] that [it] was decided shortly after Plessy [v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896)], approving “racial” segregation of “African-Americans.” Plessy’s “racial” basis was entirely rejected by Brown v. Board of *139 Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ...

1.Future Earnings

Courts are increasingly troubled by “race”- and gender-based figures for calculating loss of future income. [In 2004,] [t]he district court [of Utah] ... noted that surprisingly the reported cases have almost completely neglected the question of whether to use sex- and “race”-neutral statistics. [See United States v. Bedonie, 317 F.Supp.2d 1285, 1315 (D.Utah 2004), aff'd sub nom., United States v. Serawop, 505 F.3d 1112 (10th Cir.2007).] After receiving an expert report (for restitution purposes) that reduced the estimate of lost income based on the fact that a victim was “Native American,” that court directed recalculation without regard to “race” or gender. Avoiding reaching any constitutional questions, the court chose to exercise its discretion in favor of victims of violent crime and against the possible perpetuation of inappropriate stereotypes, especially where the defendants have deprived their victims of the chance to excel in life beyond predicted statistical averages. The court ultimately utilized gender-and “race”-neutral figures in its findings.

[In 1991, the district court of the District of Columbia] refused to use “racial” statistics in calculating tort damages for loss of future income when the plaintiff was half “Black” and half “White.” [See Wheeler Tarpeh-Doe v. United States, 771 F.Supp. 427 (D.D.C.1991)]. The defendant argued that the wage earnings projections for “Black” men were the appropriate figures for the plaintiff, whose mother was “White” and father was “Black.” Apparently “race”-based life expectancy figures were not introduced in the case. The court held it inappropriate to incorporate current discrimination resulting in wage differences between the sexes or races or the potential for any future such discrimination into a calculation for damages resulting from lost wages. It used the average earnings of all persons.

2.Work-Life Expectancy

In an action for damages [brought] by an injured seaman [in the Western District of Louisiana], the plaintiff presented statistics on work-life expectancy modified to exclude “race” as a factor; the defendant challenged the increased work-life expectancy that resulted. [See Theodile v. Delmar Systems, Inc., No. 03-CV-1844, 2007 WL 2491808, at *8 (W.D.La.2007)]. The district court refused to upset the jury’s award in the “race”-neutral amount suggested by plaintiffs expert. [In 1987,] a[ ] district court [in Rhode Island] rejected an expert calculation that reduced a female tort victim’s estimated working life by 40% based on a historical statistic about the number of years females average in the workforce.

In administering the September 11th Victim Compensation Fund, Special Master Kenneth R. Feinberg based estimations of remaining years of work-life on the victim’s age, using statistics for the general population of active males in the United States for all claimants and ignoring “racial” differences.

3.Life Expectancy

In the context of Title VII, the Supreme Court noted that while actuarial studies could unquestionably identify differences in life expectancy based on race or national origin, as well as sex, Congress has outlawed classifications based on “race,” national origin, and sex. Thus, *140even a true generalization about the .class is an insufficient reason for disqualifying an individual to whom the generalization does not apply. “Racial” statistics present an. especially strong argument for exclusion, since, as already noted, the question of “race” is ambiguous, whereas gender is generally conceded.

II. Unconstitutionality of “Race” as a Criterion for Assessing Damages

A. Equal Protection

For half a century the Supreme Court has rejected on equal protection grounds “race”-based discrimination. [W]hen experts rely on race or gender-based statistics to calculate tort damages, we tend not to notice the discrimination and to accept it as natural and unproblematic. “Racial” classifications of individuals. are suspect categories, meaning that state action in reliance on “race”-based statistics triggers strict scrutiny. Judicial reliance on “racial” classifications constitutes state action. Equal protection in this context demands that the claimant not be subjected to a disadvantageous life expectancy estimate solely on the basis of a “racial” classification.

B. Due Process

There is a right — in effect a property right — to compensation in cases of negligently caused damage to the person under state and federal law. By allowing use of “race”-based statistics at trial, a court would be creating arbitrary and irrational state action. [T]he form and content of statistical evidence is shaped by the requirements of the substantive law. Were the court to apply an ill-founded assumption, automatically burdening on “racial” grounds a class of litigants who seek compensation, there would be a■ denial of due process.

The legal system does not work fairly and with due process if one class of litigants is unduly burdened in litigation through the application of inappropriate “race”-based statistics____

Any decision to use a group-based projection into the future as a basis for a damage remedy also involves normative judgments, about the relevant frame of reference and the rate of future change----

Id. at 249-256 (citations omitted). :

2., Scholarship

a. Use of Minority-Specific Data in Tort Cases

Race-based statistics and other race-centric data cannot be relied upon to find a reduced life expectancy for a claimant in computing tort damages. See, e.g., Anita Bernstein, What’s Wrong With Stereotyping, 55 Ariz. L.Rev. 655, 711 (2013) (citing McMillan for proposition that use of race-neutral data in courts has been given legal effect); see also Deirdre M. Smith, The Disordered and Discredited Plaintiff: Psychiatric Evidence in Civil Litigation, 31. Cardozo L.Rev. 749, 821 (2010) (citing McMillan to support argument that use of race-based statistics should be discontinued); cf. Michael I. Meyerson & William Meyerson, Significant Statistics: The Unwitting Policy Making of Mathematically Ignorant Judges, 37 Pepp. L.Rev. 771, 797 (2010) (finding that “the introduction of racially-based DNA numbers into a courtroom proceeding is fundamentally misleading”).

In neither the instant case nor McMillan has the court reached the issue of how life, worklife, and educational expectancy tables negatively affect other disadvan*141taged groups, such as women, lesbians, gays, bisexuals, transgender persons, ..and those with disabilities. Professor. Sebok notes:

If [we] truly want[ ] to articulate a principle that would remove impermissible discrimination from the calculation of tort .damages, I believe it is incumbent ... to anticipate and answer the obvious question: If race cannot be used, what about gender? Statistically, both are correlated with dramatic differences in lifespan and earnings.

Anthony J. Sebok, Ruling Barring the Use. of Race in Calculating the Expected Lifespan of a Man Seeking Tort Damages: An Isolated Decision, or the Beginning of a Legal' Revolution?, Oct. 22, 2008, http:// writ.news.findlaw.com/seboy20081022.html (last visited July 28, 2015); cf. Roberts v. United Parcel Service, Inc., 115 F.Supp.3d 344, No. 13-CV-6161, 2015 WL 4509994 (E.D.N.Y. July 27, 2015) (surveying the lack of federal protections for gays and lesbian in the workplace); Mark 'L. Hat-zenbuehler et al., Structural Stigma and All-Cause Mortality in Sexual Minority Populations, 103 Soc. Sci. & Med. 33 (2014) (finding in study with small sample size that life expectancy of lesbians, gays, and bisexuals living in communities with high levels of anti-gay prejudice is twelve years shorter than for those living in low prejudice communities); Center for American Progress, et' al., A Broken Bargain: Discrimination, Fewer Benefits and More Taxes for LGBT Workers 7, 34 (June 2013) (finding “gay and bisexual men experience a “wage penalty’ relative to heterosexual men[,]” and “[l]esbian and bisexual women actually fare better than heterosexual women, but still experience the gender-based wage gap relative to all men”); Ami-cus Brief of Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders in Support of Petitioners at 26-27, 2015 WL 981538, Obergefell v. Hodges, 135 S.Ct. 2584 (“LBGT people are under-represented at the top of the income pyiamid and over-represented at the bottom.” (citations omitted)); Amicus Brief of Organization of American Historians at 23, 2015 WL 1004709, Obergefell, 135 S.Ct. 2584, (“A 2012 survey of homeless youth providers discovered that almost [forty] percent of the homeless youth they serve identify as lesbian, gay, bisexual, or transgender.” (citing Laura E. Durso & Gary J. Gates, Serving Our Youth: Findings from a National Survey of Service Providers Working with Lesbian, Gay, Bisexual and Transgender Youth Who Are Homeless or At Risk of .Becoming Homeless, The Williams Institute (2012))).. .

Economic data that is minority-specific saddles those’who do not conform to the data with adverse generalizations about their group, “the very kind of stereotyping that antidiscrimination laws were meant to prohibit.” Mártha Chámallas, Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss, 38 Loy. L.A/ L.Rev;’ 1435, 1439 (2005) (“Chamallas I”); see also Elizabeth Adjin-Tettey, Replicating and Perpetuating Inequalities in Personal Injury Claims Through Female-Specific Contingencies, 49 McGill L.J. 309, 311 (2004) (arguing that, when judges sanction the awarding of depressed damages to tort claimants from historically disadvantaged groups, they reinforce the marginalization of minorities in society).

“[W]hen damages for injuring members of minority groups are lowered, the legal regimen [has] the. perverse result of encouraging torts against them.” Meyerson & Meyerson, supra at 808 (citation omitted). Seemingly “neutral tort rules”- become a mechanism for replicating the “unequal status quo,” making it “more difficult for disadvantaged social groups to bring *142about social change.” Chamallas I, supra at 1458.

Sometimes, the problem with numbers is not that they induce prejudice in others, but that the very use of numbers is unknowingly bigoted— [T]o the extent the differences reflected in [economic data] ... are caused by ongoing discrimination, using [it] reinforces the harm caused by wrongful discrimina-tion____ Because of a long history of discriminatory treatment, the explicit use of [bigoted numbers] dramatically reduces some damage awards for ... Hispanic men.

Meyerson & Meyerson, supra at 801-07 (emphasis added).

The position of litigants as full citizens is undermined to the extent we allow legal decisions to be based upon evidence that expressly links them to groups that are traditionally disfavored, disempowered, and discredited. When a court permits a plaintiff to be labeled ... for purposes ... of [determining] entitlement to compensation for injuries, it serves as an endorsement by our legal system of discounting plaintiffs, and others [subjected to these labels]. The validation of this practice by the very institution charged with ensuring justice necessarily undermines attempts to reverse the stigmatization of [labels] in our society and, indeed serves to reinforce the stigma [associated with the labelling].

Smith, supra at 822; see also Joanna Shepherd & Paul H. Rubin, The Demographics of Tort Reform: Winners and Losers 1-8 (2007), https://www.law.umich. edu/centersandprograms/lawandeconomics/ workshops/Documents/Winter2007/ shepherd.pdf (last visited July 28, 2015) (“By limiting certain types of damages relative to other damages, tort reform may disproportionately reduce damage payments to specific segments of the population^ including] women, children, the elderly, and less affluent members of society ... [and] many disadvantaged minorities.”); Joanne Doroshow & Amy Widman, The Racial Implications of Tort Reform, 25 Wash. U. J.L. & Pol’y 169 (2007) (stating that tort reforms, such as monetary caps on damages or removing access to juries in medical practice cases, will have a greater adverse impact on minority communities),

b. Use of Minority-Specific Data in Lead-Based Paint Cases

Economists and rehabilitation experts generally rely on gender-, race-, and ethnicity-based statistics to determine loss of earning capacity in lead paint cases to the detriment of racial and ethnic minorities. See, e.g., Greenberg, supra at 430 (“Using race-based statistics reinforces the current racial discrimination in the workforce, ignoring the possibility and the social value of upward mobility.”); see also supra Part III.B (recording the expert testimony in the instant case). The use of such data results in significantly lower awards for “Hispanics,” replicating historical patterns of discrimination in tort awards. Green-berg, supra at 430 (“Lead paint plaintiffs — young, poor and often African-American or Hispanic — are disadvantaged by the traditional determinations of loss of earning capacity”). Professor Martha Chamallas has described the phenomenon as follows: , .

Depressed awards for plaintiffs derive from the fact that the population of lead paint victims is disproportionately young children, typically poor, African-American or Hispanic- children. This means that, in making assessments of the lost future earning capacity of these children, there is. often a lack of individualized evidence that indicates what career path the plaintiff would have taken and *143what he or she would likely have earned over a lifetime. In such cases, resort to statistics may well be the best available method of prediction. When lost earnings are calculated using race- [or ethnicity-] based tables, however, whether to measure average earnings or worklife expectancy, the awards are considerably lower than they would be for comparably injured white victims. Defendants in such cases, typically landlords or government housing authorities, thus pay far less than they would if their victims were predominantly white, middle-class children.

Chamallas I, supra at 1440-41. The unacceptable result is: “[BJecause it is cheaper to injure poor minority children, there is less incentive for defendants to take measures to clean up toxic hazards in the neighborhoods most affected by lead paint.” Id. at 1441 (emphasis added).

3. Race and Ethnicity

a. United States Census

The history of the classifications used by the United States Census Bureau (“Census Bureau”) and the geopolitical landscape of the mid-twentieth century show how and why ethnicity generally, and the term “Hispanic” specifically, is a social and fluid concept, similar to race.

The United States conducted its first census in 1790. See Census Bureau, History-1 790, http://www.census.gov/history/ www/through_the_decades/index_of_ questions/1790_l.html (last visited July 28, 2015). Although questions concerning the conducting of the census persisted throughout the mid-eighteenth and nineteenth centuries, it was not until 1930 that individuals of Latino origin were separately considered. See Census Bureau, History-1930, http://www.census.gov/history/ www/through_the_decades/index_of_ questions/1930_l.html. In 1930, the option of “Mexican” as a “race” was made available for selection. Id.

Then, in 1935, the District Court for the Western District of New York denied citizenship to an individual of Mexican heritage. In Re Timoteo Andrade, No. 2272-P-24049, slip op. at 2 (W.D.N.Y. Dec. 11, 1935). Following the district court’s decision, the United States Department of State,' the Mexican government, and Mexican-American civil rights activists worked together to neutralize the ruling pursuant to the recently-adopted “Good Neighbor Policy.” See Patrick D. Lukens, A Quiet Victory for Latino Rights: FDR and the Controversy over “Whiteness ” (2012); see also Department of State, Good Neighbor Policy (1993), https://history.state.gov/ milestones/1921-1936/good-neighbor (last visited July 28, 2015) (“Good Neighbor Policy” provided that “No state shall intervene in the internal or external affairs of another[,]” and was designed to improve relations among countries in the Western Hemisphere). Implemented was an administrative policy whereby Mexicans and Mexican-Americans would, from that point forward, be classified as “White.” Id. The notion of Latino or Hispanic as an ethnicity was born. Id.; cf. Jenny Rivera, An Equal Protection Standard for National Origin■ Subclassifications: The Context That Matters, 82 Wash. L.Rev. 897, 901 n. 20 (2007) (“The term ‘Latino’ represents the experiences and histories of persons of Latin American and Latino Caribbean descent. The term ‘Hispanic’ is representative of Latin America’s connections and history as it relates to Spain and Europe exclusively[.]”).

Today, both race and ethnicity appear in the United States Census. The terms are defined as “self-identification data items.” See Census Bureau, Race, http://www. census.gov/topics/population/race/about. html (last visited July 28, 2015). In a *144census survey, participants are asked to identify themselves by race or races and to indicate, whether they are of “Hispanic or Latino.” origin or of “non-Hispanic or Latino origin,” the only two ethnic categories provided. See Elizabeth M. Grieco & Rachel C. Cassidy, Overview of Race and Hispanic Origin, Census 2000 Brief 3 (Mar.2001), http://www.census.gov/prod/ 2001puWcenbr01-l.pdf (last visited July 28,2015).

The federal government treats race and ethnicity for statistical purposes to be two separate and distinct concepts. Id. at 1. The Merriam-Webster. Dictionary defines race as “a category of humankind that shares certain distinctive characteristics,” and ethnicity as a “particular ethnic affiliation or group,” where ethnic is defined as “of or relating to large groups of people classed according to common racial, national, -tribal, religious, linguistic, or cultural origin or background.” Merriam-Webster Dictionary, http://www.merriam-webster.com/ (last visited July 28, 2015).

The Office of Management and Budget (“OMB”) defines Hispanic or Latino as “a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.” Grieco '& Cassidy, supra at 2. In data collection and presentation, “federal agencies are required to use a minimum of two ethnicities: ‘Hispanic or Latino’ and ‘Not Hispanic or Latino.’ ” Id. The racial categories identified by OMB are: “White”; “Black, African American, or Negro”; “American Indian or Alaskan Native”; “Asian Indian’’; “Chinese”; “Filipino”; “Japanese”; “Korean”; “Vietnamese”; “Native Hawaiian”; “Guamanian or Cha-morro”; “Samoan”; “Other Pacific Islander”; “Other Asian”; and “Some other race.” ■ Id.

Using life, worklife, and educational attainment tables premised on OMB’s racial and ethnic distinctions' has the capacity to disadvantage a plaintiff, such as the child in the instant case, by assuming he would be in a socio-economic group lower than would be predicted by analyzing' his real-life background. The below graphics produced by. the Census Bureau demonstrate that restricting use of race- and ethnicity-based tables in reducing damages does make a difference:

Education and Synthetic Work-Life Earnings Estimates

American Community Survey Reports

Issued September 2011

These estimates are “synthetic,” that is, they are not the actual dollars people earned over the complete working life of the person (which would require us to have retrospective earnings data for the 40 years of their work-life). Instead, they are estimated using data from a one point-in-time cross-sectional survey.-.Synthetic work-life earnings represent expected earnings over a 40-year time period for the population aged 25-64 based on annual earnings from a single (cross-sectional) point in time. The estimate was calculated by adding median earnings for eight-5-year age groups, multiplied by five.

Table 2-A.

*145

*146

In Figure 4, colors represent different race/ethnicity groups while the dotted and solid lines represent females and males, respectively. The general pattern is that the dotted lines are often below the solid lines. What this tells us is that, particularly at lower levels of education, even women in the most advantaged race groups usually earn less than men in the most disadvantaged race groups. Asian women with at least a bachelor’s degree are competitive with some male groups, but at no point do women’s earnings come close to White or Asian men’s earnings at the same education level.

Tiffany Julian & Robert Kominski, Education and Synthetic Worlc-Life Earnings Estimates, United States Census Bureau 1, 6, 9 (September 2011), https://www. census.gov/prod/2011pubs/acs-14.pdf (last visited July 28,2015).

b. Critiques of Census Practices

The American Anthropological Association has criticized OMB’s practice of separating “race” and “ethnicity”:

First, by treating race and ethnicity as fundamentally different kinds of identity, the historical evolution of these category types is largely ignored. For example, today’s .ethnicities are yesterday’s races. In the early 20th century in the US, Italians, the Irish, and Jews were all thought to be racial (not ethnic) groups whose members were inherently and irredeemably distinct from the majority white population. Today, of course, the situation has changed considerably. Italians, Irish, and Jews are now seen as ethnic *147groups that are included in the majority white population. The notion that they are racially distinct from whites seems farfetched, possibly “racist.” Earlier in the 20th century, the categories of Hindu and Mexican were included as racial categories in the Census. Today, however, neither would be considered racial categories.

Knowing the history of how these groups “became white” is an integral part of how race and ethnicity are conceptualized in contemporary America. The aggregated category of “white” begs scrutiny. It is important to keep in mind that the American system of categorizing groups of people on the basis of race and ethnicity, developed initially by a then-dominant white, European-descended population, served as a means to distinguish and control other “nonwhite” populations in various ways. Second, by treating race and ethnicity as an enduring and unchanging part of an individual’s identity, OMB and the Census ignore a fundamental tension and ambiguity in racial and ethnic thinking. While both race and ethnicity are conceptualized as fixed categories, research demonstrates that individuals perceive of their identities as fluid, changing according to specific contexts in which they find themselves.

Third, OMB Directive 15, [the] Census and common sense treat race and ethnicity as properties of an individual, ignoring the extent to which both are defined by the individual’s relation to the society at large. Consider, for example, the way that racial and ethnic identity supposedly “predict” a range of social outcomes. The typical correlation is that by virtue of being a member of a particular racial or ethnic group, imprisonment, poor health, poverty, and academic failure are more likely. Such an interpretation, while perhaps statistically robust, is structurally and substantively incomplete because it is not the individual’s association with a particular racial or ethnic group that predicts these various outcomes but the attribution of that relationship by others that underlies these outcomes. For instance, a person is not more likely to be denied a mortgage because he or she is black (or Hispanic or Chinese), but because another person believes that he or she is black (or Hispanic or Chinese) and ascribes particular behaviors with that racial or ethnic category.

See American Anthropological Association Response to OMB Directive 15, Race and Ethnic Standards for Federal Statistics and Administrative Reporting (emphasis added); see also Ruth B. McKay & Manuel de la Puente, Cognitive Research in Designing the CPS Supplement on Race and Ethnicity, Proceedings of the Bureau of the Census’ 1995 Annual Research Conference 435-45 (1995) (determining that respondents were unaware of the difference between “race” and “ethnicity”); E. Kissim, et al., Hispanic Responses to Census Enumeration Forms and Procedures, Report Prepared for the Bureau of the Census (1993) (concluding that Hispanic respondents view “Hispanic” as a race and look for this category when asked on documents or surveys for their “race”); C.E. Rodriguez & J.M. Cordero-Guzman, Place Race in Context, 15 Ethnic Racial Stud. 523-43 (1992) (same).

The United States Commission on Civil Rights has echoed the criticisms lodged by the American Anthropological Association: “[S]ome people regard ‘Hispanic’ as a race and some do not. Some may refer to a particular individual’s Hispanic background as his ‘ethnicity’ and others may reject the term on the ground that it implies something untrue about the individual’s cultural traits.... ” U.S; Comm’n on *148Civil Rights,. Racial Categorization in the 2010 Census 39 (March 2009).

Ethnicity, like race, as discussed in McMillan, is a fictitious, changing, and unreliable social construct. See, e.g., Ian Haney Lopez, White by Law: The Legal Construction of Race 7-14 (2006) (tracing legal construction of race and ethnicity through America’s legal system); Camille Gear-Rich, Angela Harris and the Racial Politics of Masculinity: Trayvon Martin, George Zimmerman, and the Dilemmas of Desiring Whiteness, 102 Cal. L.Rev. 1027, 1028 n. 3 (2014) (“Latinos/Hispanics occupy a liminal space .in America’s racial paradigm, as many Latinos believe that the term Latino refers to a racial group, and other Latinos treat Latino or Hispanic background as a kind of ethnic designation.”); Wendy D. Roth, Race Migrations: Latinos and the Cultural Transformation of Race 4-8 (2012) (examining traditional black and white racial dichotomy in America and how that dichotomy is challenged by considering Latinos as a separate racial category as opposed to an ethnic group).

Defining Latino as a race shares a different experience than defining Latino as a concept of ethnicity, which is used to describe the belief that all ethnic groups will assimilate into white American .society. The category of ethnicity, therefore, fails to recognize the nonwhite and inferior status that Latinos held and continue to hold in the United States.

Yolanda Vazquez, Constructing Crimmi-gration: . Latino Subordination in a “Post-Racial” World, 76 Ohio St. L.J. 599, 657 (2015); see also Anthony V. Alfieri, Objecting to Race, 2 Geo. J. Legal Ethics 1129,1133-34 (2014) (“Rooted in conscious, unconscious, or.implicit bias, race talk often intersects with other categories of bias, including ethnicity and gender. The intersection of - multiplé kinds of bias in civil rights and criminal cases exacerbates common stereotypes and reinforces long-held prejudices.”); Laura E. Gomez, Manifest Destinies: The Making of the Mexican American Race 1-3 (2007) (explaining that the use of the term ethnicity with respect to Latinos masks the historically discriminatory treatment that Mexican Americans have faced as a racial group); Elizabeth Vaquera & Grace -Kao, The Implications of Choosing “No Race” on the Salience of Hispanic Identity: How Racial and Ethnic Backgrounds Intersect Among Hispanic Adolescents, 47 Soc. Q. 375, 389 (2006) (noting two-thirds of Latinos in a sample regarded Latino as a racial category); Clara E. Rodriguez, Changing Race: Latinos, ■ the Census, and the History of Ethnicity 16 (2000) (finding that many Hispanics claim “a multiple racial ancestry”).

B. Application

The issue of the plaintiff-child’s ethnicity first arose at the trial during the cross-examination of one of plaintiffs’ experts. See supra Part III.B.1. The court cut off an attempt to use the child’s ethnicity as a projection point for his education, life and worklife expectancies as it related to limiting damages:

[A]s a matter of constitutional and federal law[,] it is inappropriate where there is a case involving an individual with a Hispanic background ... to rely upon a table.'.. which is'undifferentiated as to Hispanic individuals.

You cannot treat the child as an average Hispanic____[Y]ou cannot say that, for example, Hispanics generally go to college less than others and therefore use that statistic or that analysis or that chart.

Trial Tr. 576:20-577:8, July 6, 2015. .

It is unconstitutional in a tort trial to premise projected societal and educational *149achievements on race or ethnicity to reduce tort damages. See supra Fart IV.A. The state itself discriminates by enforcing a substantive rule of discrimination — damages — based on race or ethnicity in reducing damages in tort cases. Such an illegal standard cannot be enforced by the courts. See Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. ‘Public officials!;,] [including judges] sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held.’ ” (citation omitted)).

The court did not have to confront the issue of the applicability of gender worklife expectancy tables because the plaintiff-mother was not physically injured, nor was she in jeopardy of experiencing future economic loss based on any status attributed to herself.

V. Life, Worklife, and Educational Attainment Expectancy Tables

A. History

Before 1950, judges generally made “intuitive” judgments about damage awards, allowing “race and racism to have tremendous influence in ways that are nearly impossible to provide.” Jennifer B. Wrig-gips, Damages in Tort Litigation: Thoughts on Race and Remedies, 1865-2007, 27 Rev. Litig. 37,, 56 (2007).

A tidal shift started in 1950, when the United States Bureau of Labor Statistics published its worklife tables. See Bureau of Labor Statistics, U.S. Dep’t of Labor, Bulletin No. 1001, Tables of Working Life: Length of Working Life for Men (1950); Bureau of Labor Statistics', U.S. Dep’t of Labor, Bulletin No. 1204, Tables of Working Life: Length of Working Life for Women (1957). These tables calculated worklife duration “as if it were a simple function of sex and age.” Shirley J. Smith, Bureau of Labor Statistics,, U.S. Dep’t of Labor, Bulletin No. 2254, Worklife Estimates: Effects of Race and Education 2 (1986) (“Bulletin 2254”). . ,

Three decades later, in 1982, after completing a comprehensive survey of worklife methodology calculations; the Bureau of Labor Statistics modified its life ánd work-life expectancy tables. See Bureau of Labor Statistics, U.S. Dep’t of Labor, Bulletin No. 2135, Tables of Working Life: The Increment-Decrement Model (1982).' As was the case in 1950, “[t]ables were prepared separately for men and women, giving no additional demographic or functional detail by race, educational attainment, occupation, or "other characteristics that might distinguish high’from low turnover grbups.” Bulletin 2254 at 2. Innovative was the fact that the 1982 tables “for the first time ‘quantified the impact of midlife labor force withdrawal and reentry on worklife duration,” based on observed rates of labor force entry and exit at all ages. Id. at 1.

Publication of the 1982 tables “drew responses from many, economists involved in litigation of. wrongful injury or death cases.” Id. at 1. Several of these responses appeared in the Monthly Labor Review, a publication composed of economists and statisticians, which researches and analyzes a myriad of fields, including the economy and the labor force. Id. at i, 7 n. 2. The responses led to refinements that were implemented in the Bureau of Labor Statistic’s 1986 revisions to the life and worklife expectancy tables. Id. at 1, 7 n. 3.

The Bureau’s 1986 tables, Bulletin 2254, presented a new set of official, worklife estimates based on data collected between *1501979 and 1980. Id. at 1. As with the previous tables issued, the new figures were calculated using information collected from a nationwide monthly household survey conducted by the Census Bureau on behalf of the Bureau of Labor Statistics. Id. The difficulty of controlling for relevant details of family life was explained:

In reality, labor force attachments are influenced by a variety of factors, including training, health, marital and family responsibilities, economic opportunity, and additional sources of income. However, it is not feasible to control for all these factors in computing worklife expectancy. ,.. Nonetheless, this study does add two new dimensions to the estimation of worklife: race and education. Tables are presented separately for each of these two variables. However, the combined impact. of race and education has not been computed because the present matched sample is too limited to develop reliable joint probabilities .... Tables by race incorporate the effects of sex- and race-specific rates mortality. Those focusing on education employ only sex-specific rates, because there are no comparable mortality tables by education. Of course, access to health care is apt to be correlated with schooling. If it were possible to quantify this relationship, the tables would probably show still wider discrepancies between the worklives of the less and more educated.

Id. at 2 (emphasis added). These tables explored, for the “first time,” the relationship between “race and educational background,” and their effect on “lifetime labor force behavior.” Id. at 1.

The tables presented in Bulletin 2254 were subdivided by sex, race, and educational attainment. Id. at 4, 5, 6. The two racial categories displayed were “white (88 percent of the sample) and blacks and others (12 percent).” Id. at 4. “A separate set of tables detailed] years of schooling completed, using the categories of less than high school (about 20 percent of the sample), high school graduate to 14 years (about 52 percent of the sample), and 15 years or more (about 28 percent).” Id. The new tables quantified the lifetime relationship between race and labor force involvement. Id. From it the conclusion could be drawn that,

whites are more likely to enter [the labor force] than their minority counterparts .... [T]he worklife expectancy of blacks ... was nearly 7 years shorter than that of whites.... Minority men spent an average of just 50 percent of their lives in labor force activity, compared with 56 percent for whites ... [T]he average man with 15 years of schooling or more can expect to work 6.5 years longer than his classmate who left high school before graduation....

Id. at 4-6.

In the past three decades, the Bureau of Labor Statistics has not revised these still widely circulated life, worklife, and educational attainment tables, reflective of data collected in 1979 and 1980. See, e.g., Lawrence M. Spizman, Bulletin 2254 Worklife Expectancy Tables and Tort Gender Inequality, 12 The Earnings Analyst 1 (2012) (arguing that Bulletin 2254 should not be used because structural changes in the labor market for females have dramatically changed since its publication). According to a 2012 survey of forensic economists, only 4.8 percent of forensic economists use the Bulletin 2254 tables. See Brookshire, et. al, A 2012 Survey of Forensic Economists: Their Methods, Estimates, and Perspectives, 24 J. of Forensic Eeon. 67, 86 (2013). This is down from 72.6 percent in the 1991 survey. Id. But see infra Part V.B (discussing New *151York State’s endorsement of Bulletin 2254).

The Department of Labor no longer publishes life, worklife, and educational attainment tables, but it continues to provide the data on which the tables were based, leaving it to the public to use the data as it deems fit. Id. at 1.

B. Law

New York law incorporates Bulletin 2254 in deciding damages in tort cases. See, e.g., Ñ.Y. Pattern Jury Instr. Civil Appendix B (2014) (“Tables 1 through 8 in Appendix B are extracted from a report published by the United States Bureau of Labor Statistics, United States Department of Labor, entitled ‘Report: Worklife Estimates: Effects of Race and Education’ (February 1986).”). The state’s pattern jury instructions (“PJI”) include tables from Bulletin 2254 for use in determining worklife. expectancy. Id.; see also Spizman, supra at 2. Appendix A, which provides for life expectancy data, is periodically updated but lags behind the most current life expectancy tables published by Drs. Skoog, Ciecka and Krueger in 2011. See Spizman, supra at 2-3, n. 3 (“Appendix A in the 2012 PJI used [the] U.S. Life Tables from 1999 Vol. 47, No 28 (December 13, 1999).”); see also N.Y. Pattern Jury Instp. Civil Appendix A (2014). .

New York’s pattern jury instructions contain the following warning regarding the use of Bulletin 2254:

Although as official compilations, the Department of Labor tables may be judicially noticed, the preparation of any such tables involves judgment in the gathering of the underlying statistics that may affect the reliability of the table in relation to the fact situation before the court. Expert testimony concerning the reliability of the Department of Labor table, may, therefore be offered, and with respect to a privately prepared table, expert testimony would be required to allow the table to be used as a basis for án opinion.

N.Y. Pattern Jury Instr. Civil 2:290 (2014). This statement recognizes the Bulletin’s use of outdated' data, signaling to parties that they can rely upon damage experts to question the Bulletin’s reliability.

The Final Report of the Special Master, Kenneth R. Feinberg, for the September 11 Victim Compensation Fund of 2001 indicated Feinberg’s reluctance to rely on gender-- and race-based life and worklife tables. See Kenneth Feinberg, Dep’t of Justice, Volume 1, Final Report of The Special Master for the September 11th Victim Compensation Fund of 2001 33, n. 109 (2004) (citing James Ciecka,- Thomas Donley & Jerry Goldman, A Markov Process Model of Work-Life Expectancies Based on Labor Market Activity 1997-98, 10, 2, J. of Legal Econ. 27 (2000)); see also Chamabas & Wiggins, supra at 155-83 (discussing Special Master Feinberg’s refusal to take into account race and gender based statistics when computing damages in the interest of “public policy and equity”). .

Courts, and the experts testifying before them regarding future economic loss, are less discomforted and careful than Mr. Feinberg, relying daily on race-, ethnicity-, and gender-based statistics, reminiscent of Bulletin 2254, to determine loss of future earning capacity.. See supra Part III.B (highlighting testimony of experts in this case); Kurt V. Krueger & Frank Slesnick, Total Worklife Expectancy, 25 J. of Forensic Econ. 51, 53 (2014) (“While gender-based and labor force-based worklife expectancy tables have such discriminatory features, courts and economists have developed a habit of using them.”); see also generally Dan B. Dobbs, Paul T. Hayden, & Eben M. Bulbick, The Law of Torts, *152§ 479 (2d ed.2015> (collecting, cases and sources that have questioned or rejected statistical tables predicated on race and gender differences). But see supra Part IV (discussing this, court’s application of the McMillan rule), As a result, minority plaintiffs often receive lower awards of damages. See Martha Chamallas, The Architecture of Bias: Deep. Structures in Tort Law, 146 U. Pa. L.Rev. 463, 482 (1998) (“Chamallas II”).

“[T]he willingness of economists and judges to rely on sex and race as a measure of an individual’s future earning potential may have as much to do with habit as it does with strict fidelity —” to appropriate economic analysis. . See Chamallas & Wiggins, supra at 168.

[I]n the realm of torts a higher value is placed upon the lives of white men and[, problematically, the] injuries suffered by this group are worth more than injuries suffered by other less privileged groups in society..:. [Contemporary tort law devalues or undervalues the lives, activities, and potential of women and people of color.

Chamallas II, supra at 465, 467. For many tort cases, and particularly for lead paint cases, loss of earning potential is 'the big ticket item of damages, which can make the difference between a modest and sizeable award. See Martha Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic Date in Tort Litigation: A Constitutional Argument, 63 Fordham L.Rev. 73, 75 (“Chamallas III”) (collecting cases).

C. Application

The use of race-based statistics to obtain a reduced damage award — which is now extended to the use of ethnicity-based statistics, to calculate future economic loss — is unconstitutional. See supra Part IV (discussing McMillan rule and its application). It violates due process because it creates arbitrary and irrational state action, and equal protection, because it subjects, the claimant to a. “disadvantageous estimate” of damages “solely on the basis” of ethnic classification. Id.

Race and ethnicity are not, and should not, be a determinant of individual achievement. To suppoxt such a proposition distorts the American dream, denigrating minorities’ chances of climbing the socio-economic ladder. Using these statistics to calculate future economic loss reinforces the rigid racial and ethnic barriex’s that our society strives to abolish. See infra Part VIA, (discussing affirmative action). Basing an individual’s earning capacity on his or her race or ethnicity is “problematic for poor minority plaintiffs because it assumes that racism and clas-sisrn will "'exhaust'their opportunities in the same way that it may have adversely affected their relatives.” Greenberg, supra at 430; see also Patrick Sharkey, Neighborhoods and the Black-White Mobility Gap, The PEW Charitable Trusts:. Economic Mobility Project'(2009), http://www. pewtrusts.org/~/media/legacy/ uploadedfíles/wwwpewtrustsorg/reports /economic_mobility/PEWSHARKEY vl2pdf.pdf (last visited July 28, 2015) (exploring the impact of neighborhood poverty rates experienced during childhood as an important factor affecting the mobility gap).

Propelling race and ethnicity to the forefront of predictions about an individual’s future achievement ignores the myriad factors affecting an individual’s capacity to fulfill his or her potential. See, e.g., Bulletin 2254 at 2; 6-7 (indicating that access to healthcare likely has a disproportionate impact on minorities and- may be a factor affecting wox’klife duration); Jonathan Ko-zol, The Shame of the Nation: The■ Restoration of Apartheid Schooling in America ■ (2005) (examining the negative social and *153educational outcomes that stem from the racial segregation prevalent in America’s public schools).

Race- and ethnicity-based statistics “as-sum[e] that the current ... racial pay gap will continue in "the future, despite ongoing legal and institutional efforts to make the workplace more diverse and less discriminatory.” Chamallas III, supra at 75.

The economic data clearly show that our nation — and, by extension, our workforce — will continue to become increasingly more diverse, as racial and ethnic minorities make: up a larger portion of the population, as women continue to enter the workforce, and as gay and transgender individuals, as well as people with disabilities, continue to play a vital role in growing our economy.

Crosby Burns, et al, The State of Diversity in Today’s Workforce: As Our Nation Becomes More Diverse So Too Does Our Workforce, Center for American Progress, 6 (2012), https://cdn.americanprogress.org/ wp-content/uploads/issues/2012/07/pdf/ • diversity_brief.pdf (last visited July 28, 2015); see also, e.g., Nat’l Ctr. for Educ. Statistics, U.S. Census Bureau, Policy Alert, Integrated Postsecondary Education Data System, The U.S. Workforce Is Becoming More Diverse, (2005), http:// www.highereducation.org/reports/pa_ decline/decline-fl.shtml (last visited July 28, 2015) (maintaining that the minority portion of the workforce, is projected to double from 18% to 37%, creating a more divorce working economy); Bureau of Labor and Statistics, U.S. Dep’t of Labor, Women’s Earnings: 1979-2012, TED: The Economics Daily Blog (Nov. 4, 2013), http://www.bls.gov/opub/ted/2013/ted_ 20131104.htm (last visited July 28, 2015) (“When adjusted for inflation, women’s earnings since 1979 have increased considerably across the major race and Hispanic ethnicity categories.”).

Psychologists have adopted an alternative to the use of race- or ethnicity-based statistics: the' “resiliency theory” utilizes three distinct processes for evaluating loss of earning capacity.

First, it identifies concrete factors — other than race' [and ethnicity] — that indicate a likelihood of success despite adverse conditions. Second, the multitude of resiliency literature confirms ■ that predictions about what, a child is likely to become are enormously speculative. And third, resiliency theory provides a theoretical alternative to the devaluation of racial minorities by starting with the optimistic assumption that children are very much capable of succeeding beyond the averages and against the odds.

Greenberg, supra at 454; see also Marc A. Zimmerman, Editorial, Resiliency Theory: A Strengths-Based Approach to Research and Practice for Adolescent Health, 40 Health Educ. Behavior 381, 381 (2013) (“Resiliency theory focuses attention on positive contextual, social, and individual variables that interfere with or' disrupt developmental trajectories from risk to problem behaviors, mental distress, and poor health outcomes.”) Unlike race- or ethnicity-based statistics, which do not acknowledge a child’s ability to persevere through a difficult familial or social upbringing, resiliency theory “starts from the proposition and expectation that there are kids in families from very adverse situations who really do beautifully, and seem to rise to the top of their potential, even with everything else working against them.” Greenberg, supra at 454.

Another option that has been suggested is to “consider each person as equivalent to the average, unless evidence is produced which removes the plaintiff from the normal range.” Sherri Lamb,. Toward Gender-Neutral Data for Adjudicating Lost Future Earning Damages: An Evidentia- *154 ry Perspective, 72 Chi.-Kent L.Rev. 299, 338 (1996).

Absent the use of an alternative to race- or ethnicity-based statistics, lead poisoned children will continue to be “inadequately compensated” for their present and future injuries. Greenberg, supra at 457.

Their age — and the absence of any earnings history or defined career path— encourages courts to rely heavily on statistics and to judge the children within the context of the achievements of their family members. For children from low-income and minority families, however, this reliance reinforces historical discrimination____

Id. Courts cannot accept a principle in awarding damages “that reflect subtle but pervasive racism and classism.” Id.

There is a need to revise the current expectancy tables as applied in prospective calculations to lower tort damages for specific communities. See supra Part V.A (discussing history of tables). Various sociological and vocational studies projecting life and earning capacities used by tort experts require review and recalculation. See supra Part V.B (discussing use of tables). A traditional, automatic, unthinking approach by experts in this field can no longer be tolerated. See supra Part III.B (discussing expert testimony in this case).

The reinterpretation of our constitution in recent years and statutory protections regarding minority social groups mandates rejection of bias by our judicial system towards members of such groups. Cf. Obergefell v. Hodges, — U.S. -, 135 S.Ct. 2584, 2588, 192 L.Ed.2d 609 (2015) (holding marriage is a fundamental right and declaring unconstitutional the laws of states that either ban same-sex marriage or refuse to recognize same-sex marriages performed out of state).

VI. Categorical Advantages Afforded to Members of Historically Disadvantaged Minorities Not Inconsistent with Excluding Evidence of Race or Ethnicity Where Appropriate

Elimination of racial and ethnic differences used to reduce damages to members of minority groups is not inconsistent with using such groupings to overcome the adverse effects of prior discrimination or to assist in providing a more equal role for minorities in our society.

There is “a critical distinction between racial [and ethnic] references that subvert” the Constitution and “racial [and ethnic] references that actually enhance the rationality and fairness” of it. See Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 Cal. L.Rev. 733, 735 (1995) (arguing that colorblind formalism advocated by courts is counterproductive in reducing discrimination).

Whatever the Supreme Court may decide in cases such as Fisher v. Univ. of Texas at Austin on admissions and aid discrimination in favor of minorities in school administration is not inconsistent with the instant decision. See Fisher v. Univ. of Texas at Austin, — U.S. -, 135 S.Ct. 2888, 2888, 192 L.Ed.2d 923 (2015) (granting certiorari). If the Supreme Court finds affirmative action constitutional in Fisher when affording advantages to minorities by category in a college or law school admissions process, it will be doing so based on policy and goals different from that applied to the damage issues present in the instant case. In the school cases, the policy is to assist minorities. Diversity in schools is arguably a compelling state interest that (1) promotes better educational, occupational and business outcomes; and (2) improves the occupational spreads of specific career pipelines. See *155 infra Part VLA; see also, e.g., Thomas Barta, et al., Is There a Payoff From Top-Team Diversity?, McKinsey Quarterly (2012), http://www.mcldnsey.com/insights/ organization/is_there_a_payofLfrom_top-team — diversity (last visited July 28, 2015) (“companies with diverse executive boards enjoy significantly higher earnings and return on equity [than companies with non-diverse executive boards]”); Roy Y.J. Chua, Innovating at the World’s Crossroads: How Multicultural Networks Promote Creativity, Vol, 11, No. 85 Harvard Business School Working Papers 1, 33 (2011), http://www.hbs.edu/ faculty/Publication% 20Files/ll-085.pdf (last visited July 28, 2015) (“The idea that cultural diversity can promote creativity in certain types of tasks has both theoretical and practical importance.”); Ekaterin Walter, Reaping the Benefits of Diversity for Modem Business Innovation, Forbes (2014), http:// www.forbes.com/sites/ekaterinawalter/ 2014/01/14/reaping-the-benefits-of-diversity-for-modern-businessinnovation/ (last visited July 28, 2015) (“Diversity is essential to growth and prosperity of any company: diversity of perspectives, experiences, cultures, genders, and age.”).

In the case of damages, basing life, worklife, and education probabilities on ethnicity or race tables disadvantages some individual members of the group. Individuals in the group would do better if they were treated as individuals on the basis of their individualized characteristics.

A. Law

In the past five decades, government and private “affirmative action” programs affording advantages to individuals in ethnic and racial groups have had a checkered constitutional history. Compare Anita Bernstein, Diversity May Be Justified, 64 Hastings L.J. 201 (2012) (concluding that affirmative action promotes the compelling interest of diversity within schools and workplaces), and Reginald T. Shuford, Why Affirmative Action Remains Essential in the Age of Obama, 31 Campbell L.Rev. 503 (2009) (suggesting that affirmative action is necessary to combat the prevalence of minorities attending primarily segregated schools), with Douglass C. Lawrence, Challenging Affirmative Action: Does Diversity Justify Race-Conscious Admissions Programs?, 36 Suffolk U.L.Rev. 83 (2002) (opining that adoption of race-neutral alternatives may better achieve diversity because these policies result in a greater number of minority students on college campuses than race-based affirmative action policies (collecting sources)).

In 1978, the Supreme Court addressed affirmative action in school admissions based on race and ethnicity in Bakke. See Regents of Univ. of California v. Bakke, 438 U.S. 265, 270, 320, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (holding “special admissions program” that denies “specific percentage” of seats in incoming class to white students unconstitutional). The court recognized that “the goal of achieving a diverse student body is sufficiently compelling to justify consideration^] of race in admissions decisions under some circumstances[.]” Id. at 267, 98 S.Ct. 2733.

An otherwise qualified medical student with a particular background — whether it be ethnic, geographic, culturally advantaged or disadvantaged — may bring to a professional school of medicine , experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity.

Id. at 314, 98 S.Ct. 2733.

In 1980, in Fullilove v. Klutznick, the Court held that the use of modest racial *156quotas was constitutional. See Fullilove v. Klutznick, 448 U.S. 448, 448-19, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). The Public Works Employment Act of 1977, requiring that fifteen percent of funds for public works be set aside for qualified minority contractors, was upheld. Id. at 492, 100 S.Ct. 2758. The affirmative program, it was ruled, did not violate the equal rights of non-minority contractors. Id. at 484, 100 S.Ct. 2758.

Ih 1986, an action was brought challenging a school board’s policy of protecting minority employees by laying off non-minority teachers first despite their seniority. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 271, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). The Court concluded that “layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in a serious disruption of their lives.” Id. at 283, 106 S.Ct. 1842.

We have previously expressed concern over the burden that a preferential-layoff scheme imposes on innocent parties. In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job.

Id. at 282-83, 106 S.Ct. 1842 (emphasis in original) (citations omitted).

In 1987, in United States v. Paradise, the Court upheld the use of strict quotas to remedy the systematically discriminatory practices of the State of Alabama’s Department of Public Safety. See United States v. Paradise, 480 U.S. 149, 185-86, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987).

In 1989, ten years after Bakke, affirmative action was ruled “a highly suspect tool.” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (holding state and local affirmative action- programs in Richmond, Virginia that sought to set aside thirty percent of city construction funds for black-owned firms was not narrowly tailored to remedy effects of prior discrimination). . Affirmative action, the Court found, was subject to “strict scrutiny.” Id. at 493, 109 S.Ct. 706. “[T]he purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool.” Id.

Applying the logic of Croson to federal affirmative action programs, in Adarand Constructors, Inc. v. Pena, the Court remanded a case challenging the federal highway program, which gave contractors a financial bonus for awarding subcontracts to companies owned by members of minority groups. See Adarand Constructor's, Inc. v. Pena, 515 U.S. 200, 236-37, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (holding that setting aside thirty percent of city construction funds for black-owned firms was not sufficiently “narrowly tailored to remedy prior discrimination since it [wa]s not linked to identified discrimination in any way”). The Court noted that “the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country” justified the use of race — and ethnicity — based remedial measures in certain circumstances, should they pass strict scrutiny. Id. at 237, 115 S.Ct. 2097.

In 2003, the Supreme Court issued Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). It upheld the University of Michigan Law School’s policy that used race as one of *157many factors considered in granting admission. Id. at 343-44, 123 S.Ct. 2325. A “compelling- interest” is obtained, the Court found, from “educational benefits that flow from a diverse student body.” Id. at 343, 123 S.Ct. 2325. By enrolling a “critical mass of underrepresented minori ty students,” the Law School sought to ensure that racially and ethnically diverse students had the “ability to make uniqué contributions to the character of the Law School,” Id. at 316, 123 S.Ct. 2325. The Court pointed to “numerous studies [that show] student body diversity promotes learning outcomes, and better prepares students as professionals, and , for an increasingly diverse workforce and society.” Id. at 330, 123 S.Ct. 2325. But see Parents Involved in Community Schools v. Seattle School District # 1, 551 U.S. 701, 743, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (racial integration cannot be mandated by law); Ricci y. DeStefano, 557 U.S. 557, 562, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (disapproving of City’s dispensation of test results used to fill superior positions within' fire departments because white candidates had “outperformed” minority candidates).

Justice Kennedy’s plurality opinion in Parents Involved emphasized that the promotion of racial and ethnic diversity was a compelling state interest:

The Nation’s schools strive to teach that our strength comes from people of different races' creeds, and cultures uniting in commitment to the freedom of all. In these cases two school districts in different parts of the country seek to teach that principle by having classrooms that reflect the racial makeup of the surrounding community. That the school districts consider these plans to be necessary should remind us our highest aspirations are yet unfulfilled,... This Nation has' a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ■ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a -district may consider it a compelling interest' to achieve a diverse student population. Race may be one component of that diversity[.]

Id. at 782, 788-89, 127 S.Ct. 2738 (emphasis-added) (Kennedy . J., concurring); see also Fisher v. Univ. of Texas, — U.S. -, 133 S.Ct. 2411, 2420, 186 L.Ed.2d 474 (2013) (finding universities may continue to use hace as- a factor dn-their admissions processes because diversity promoted edu-. cational- benefits, “but ... before turning to- racial classifications” a university had to prove that “workable .race-neutral alternatives [did] not suffice”).

B. Application

The policy goals and problem recognized in affirmative action differs from the policy objective of using race- and ethnicity-based life, worklife, and education expectancy tables when computing fair tort damages. The former seeks to promote diversity in educational and occupational spreads, while the latter seeks to project, as accurately as possible, the potential that .a tort victim -would have in adulthood .(recognizing that to do so in an infant is largely guesswork) had he or she not been harmed by defendant’s delict.

VII. Constitutional Requirements Supplementing Rule 403 of the Federal Rules of Evidence

Adjusting to this nation’s continuing struggle for equal rights and effective equal opportunities for all will require subtle changes-in reliance on. race-, ethnicity-, or gender-based statistics in individual cases. Each evidentiary ruling , needs to *158be separately evaluated to avoid invidious discrimination. Sometimes, as in the present case, exclusion of arguably relevant evidence will be required to protect against stereotyping that unfairly reduces damages to members of disadvantaged minority groups. At other times, such evidence may be needed to further equalities.

Even when racially-, ethnically-, and gender-based tables have probative force and are therefore relevant, there are instances- under Rule 403 of the Federal Rules of Evidence that they may be excluded. See Fed.R.Evid. 403 (“The court may exclude relevant evidence if its probative-value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”).

There is another factor that may justify exclusion: constitutional and general policy considerations may warrant excluding relevant evidence, as in the instant case with respect to a specific child. In such cases, Rule 403 sometimes needs to be supplemented by exclusions based on policy. See, e.g., Jack B. Weinstein, Some Difficulties in Devising Rules for Determining Truth in Judicial Trials, 66 Co-lum. L.Rev. 223, 246 (1966) (“It is not possible to produce a system permitting facts to be found with any certitude. Nor is it possible to satisfy fully all the purposes served by our law of evidence since, in particular instances, a rule which aids one end will disserve another. In case of conflict, the court’s truth-finding function should receive primary emphasis except when a constitutional limitation requires subservience to some extrinsic public policy.”)

This memorandum deals only with the use of race- and ethnicity-based tables to reduce tort damages. It does not address the separate problem of advantaging particular groups or parties by the use of such tables. Cf supra Part VI (discussing affirmative action cases).

There are instances where statistical life-expectancy tables based on race and ethnicity may be utilized. An obvious instance is in applying them to the rule that juveniles cannot be kept in prison for a non-homicide offense for their full life without parole. See Graham v. Florida, 560 U.S. 48, 50, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that eighth amendment prohibits the imposition of “life without parole” sentence on juvenile offenders who do not commit homicide); see also Adele Cummings & Stacie Nelson Colling, There Is No Meaningful Opportunity in Meaningless Data: Why It Is Unconstitutional to Use Life Expectancy Tables in Post-Graham Sentences, 18 U.C. Davis J. Juv. L. & Pol’y 267, 288, 292 (2014) (arguing that Colorado’s practice of using race-and ethnicity-neutral life expectancy tables “should not be applied to the distinctive group of young people facing decades of incarceration, who are mostly poor and disproportionately black and Hispanic” because they “overestimate the length of life of the juveniles being sentenced”). Use of race-, ethnicity-, and gender-based life tables in such circumstances might benefit a juvenile offender by putting a cap on the sentence imposed. Cf. United States v. Tocco, 135 F.3d 116, 131-32 (2d Cir.1998) (finding that imposition of 435-month sentence of, imprisonment for arson homicide conviction, which exceeded defendant’s life expectancy when good-time credits were not accounted for, but was slightly less than his life expectancy when good-time credits were considered, did not violate statute requiring jury recommendation for imposition of life sentence).

*159VIII. Conclusion

General ethnic characteristics of an injured person cannot be used to reduce damages in this case.

SO ORDERED.

4.5.2 Compensatory Damages 4.5.2 Compensatory Damages

4.5.3 Punitive Damages 4.5.3 Punitive Damages

4.5.4 Restitutionary Damages 4.5.4 Restitutionary Damages

4 Negligence: the Elements of a Prima Facie Case 4 Negligence: the Elements of a Prima Facie Case

4.1 A Prima Facie Case 4.1 A Prima Facie Case

4.1.1 Pastuszek v. Murphy Plywood Corp. ("The Prima Facie Case, Case") 4.1.1 Pastuszek v. Murphy Plywood Corp. ("The Prima Facie Case, Case")

Pastuszek, Appellant, v. Murphy Plywood Corp.

4.2 Duty to Meet the Standard of a Reasonable Person 4.2 Duty to Meet the Standard of a Reasonable Person

4.2.1 Analyzing the Standard of a Reasonable Person 4.2.1 Analyzing the Standard of a Reasonable Person

4.2.1.1 Vaughn v. Menlove ("The Hayrick Case") 4.2.1.1 Vaughn v. Menlove ("The Hayrick Case")

Vaughan v. Menlove

4.2.1.2 Stewart v. Motts ("The Gasoline Pouring Case") 4.2.1.2 Stewart v. Motts ("The Gasoline Pouring Case")

Jonathon STEWART, Appellant, v. Martin MOTTS, II, t/d/b/a Mott’s Radiator, Appellee.

4.2.1.3 Myhaver v. Knutson ("The Emergency Swerve Case") 4.2.1.3 Myhaver v. Knutson ("The Emergency Swerve Case")

Bruce P. MYHAVER and Barbara A. Myhaver, husband and wife, Plaintiffs/Appellants/Cross-Appellees. v. Elmo G. KNUTSON and Lois Knutson, husband and wife, Defendants/Ap-pellees/Cross-Appellants.

4.2.1.4 Salem v. Saleh ("The Drag Race Shootout Case") 4.2.1.4 Salem v. Saleh ("The Drag Race Shootout Case")

Opinion

Dissent

4.2.1.5 Particularizing the Reasonable Person 4.2.1.5 Particularizing the Reasonable Person

4.2.1.5.1 Children 4.2.1.5.1 Children

4.2.1.5.1.1 Restatement Second, Section 283A, on the negligence standard for children 4.2.1.5.1.1 Restatement Second, Section 283A, on the negligence standard for children

4.2.1.5.1.2 Restatement Third, Section 10, on the negligence standard of children 4.2.1.5.1.2 Restatement Third, Section 10, on the negligence standard of children

4.2.1.5.1.3 Dunn v. Teti ("The Swinging Stick Case") 4.2.1.5.1.3 Dunn v. Teti ("The Swinging Stick Case")

Vincent DUNN, a minor, by his parents and natural guardians, Edwin A. Dunn and Jacqueline Dunn, and by Edwin A. Dunn and Jacqueline Dunn, his wife, in their own right, Appellants, v. David TETI, a minor, by his parents and natural guardians, Ronald R. Teti and Margo Teti.

4.2.1.5.1.4 Exception: When are children held to an adult standard of care? 4.2.1.5.1.4 Exception: When are children held to an adult standard of care?

4.2.1.5.2 Those With Special Knowledge 4.2.1.5.2 Those With Special Knowledge

4.2.1.5.2.1 Heath v. Swift Wings, Inc. ("The Controlled Landing Case") 4.2.1.5.2.1 Heath v. Swift Wings, Inc. ("The Controlled Landing Case")

RICHARD EDWIN HEATH v. SWIFT WINGS, INC., THE BANK OF VIRGINIA TRUST COMPANY, FRANK W. KISH, RICHARD H. KISH and KERMIT ROCKETT

4.2.1.5.2.2 Jackson v. Axelrad ("The Spider Man Meme Case") 4.2.1.5.2.2 Jackson v. Axelrad ("The Spider Man Meme Case")

Dr. Richard JACKSON, Petitioner, v. David and Carolyn AXELRAD, Respondents.

4.2.1.5.3 Those With A Physical Disability 4.2.1.5.3 Those With A Physical Disability

4.2.1.5.3.1 Roberts v. State ex rel. Louisiana Health & Human Resources Administration ("The Cane-Less Operator Case") 4.2.1.5.3.1 Roberts v. State ex rel. Louisiana Health & Human Resources Administration ("The Cane-Less Operator Case")

William C. ROBERTS, Plaintiff-Appellant, v. STATE of Louisiana, THROUGH the LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION et al., Defendants-Appellees.

4.2.1.5.4 Those With a Mental Disability 4.2.1.5.4 Those With a Mental Disability

4.2.1.5.4.1 Restatement Third, Section 11, on the standard of care for non-physical impairments 4.2.1.5.4.1 Restatement Third, Section 11, on the standard of care for non-physical impairments

4.2.1.5.4.2 Delahanty v. Hinckley ("A Case Illustrating Now Questionable Precedent and Past Attitudes") 4.2.1.5.4.2 Delahanty v. Hinckley ("A Case Illustrating Now Questionable Precedent and Past Attitudes")

Thomas K. DELAHANTY, et al., Plaintiffs, v. John W. HINCKLEY, Jr., Defendant. James Scott BRADY, et al., Plaintiffs, v. John W. HINCKLEY, Jr., Defendant. Timothy John McCARTHY, Plaintiff, v. John W. HINCKLEY, Jr., Defendant.

4.2.1.5.4.3 Colman v. Notre Dame Convalescent Home, Inc. ("The Caregiver Special Duty Rule Case") 4.2.1.5.4.3 Colman v. Notre Dame Convalescent Home, Inc. ("The Caregiver Special Duty Rule Case")

Corrine COLMAN, Plaintiff, v. NOTRE DAME CONVALESCENT HOME, INC. and Gail Kemp, Conservator of the Person of mary Denittis and Mary Denittis, Individually, Defendants.

4.2.2 Analyzing Whether the Defendant Is Under A Duty of Reasonable Care to the Plaintiff 4.2.2 Analyzing Whether the Defendant Is Under A Duty of Reasonable Care to the Plaintiff

4.2.2.1 Palsgraf v. Long Island Railroad ("THE tort case") 4.2.2.1 Palsgraf v. Long Island Railroad ("THE tort case")

Helen Palsgraf, Respondent, v. The Long Island Railroad Company, Appellant.

4.2.2.2 Misfeasance or an Affirmative Act Compared to Nonfeasance or a Failure to Aid or Protect 4.2.2.2 Misfeasance or an Affirmative Act Compared to Nonfeasance or a Failure to Aid or Protect

4.2.2.2.1 Mellon Mortgage Co. v. Holder ("The Palsgraf Do-Over Case") 4.2.2.2.1 Mellon Mortgage Co. v. Holder ("The Palsgraf Do-Over Case")

MELLON MORTGAGE COMPANY, Petitioner,v.Angela N. HOLDER, f/k/a Angela N. Hamilton, individually and a/n/f for Nicholas C. Laske, Respondent.

I

II

I. THE PLURALITY

II. FORESEEABILITY

III. ANALYSIS

IV. THE DISSENT

V. CONCLUSION

I

Foreseeability of Plaintiff

II

Foreseeability of Crime

III

Holder's Status

4.2.2.2.2 Lugtu v. California Highway Patrol ("The Pull-Over Case") 4.2.2.2.2 Lugtu v. California Highway Patrol ("The Pull-Over Case")

Cecelio LUGTU et al., Plaintiffs and Appellants,v.CALIFORNIA HIGHWAY PATROL et al., Defendants and Respondents.

I

II

III

IV

544*544 V

VI

4.2.2.2.3 Price v. E.I. DuPont de Nemours & Co. ("The Take-Home Asbestos Case") 4.2.2.2.3 Price v. E.I. DuPont de Nemours & Co. ("The Take-Home Asbestos Case")

Patricia PRICE and Bobby Price, her husband, Plaintiffs Below, Appellants,v.E.I. DuPONT DE NEMOURS & COMPANY, Defendant Below, Appellee.

I. FACTS AND PROCEDURAL HISTORY

II. STANDARD OF REVIEW

III. ANALYSIS

IV. CONCLUSION

Riedel Did Not Analyze Misfeasance vs. Nonfeasance

The Factual Allegations State a Claim of Misfeasance

To Prevail on a Misfeasance Claim the Harm must be Foreseeable

4.2.2.2.4 Disguised Affirmative Acts 4.2.2.2.4 Disguised Affirmative Acts

4.2.2.2.4.1 Rescuers 4.2.2.2.4.1 Rescuers

4.2.2.2.4.1.1 Wagner v. International Railway Co. ("The 'Danger Invites Rescue' Case") 4.2.2.2.4.1.1 Wagner v. International Railway Co. ("The 'Danger Invites Rescue' Case")

Arthur Wagner, Appellant, v. International Railway Company, Respondent.

4.2.2.2.4.1.2 Govich v. North American Systems, Inc. ("The Emotional Mr. Coffee Case") 4.2.2.2.4.1.2 Govich v. North American Systems, Inc. ("The Emotional Mr. Coffee Case")

Roane GOVICH, Daniel Govich and American National Fire Insurance Co., Plaintiffs-Appellants and Cross-Appellees, v. NORTH AMERICAN SYSTEMS, INC. and Ark-Les Switch Company, Defendants-Appellees and Cross-Appellants.

4.2.2.2.4.2 Undertaking to Aid 4.2.2.2.4.2 Undertaking to Aid

4.2.2.2.4.2.1 Zelenko v. Gimbel Bros. ("The Undertaking Case") 4.2.2.2.4.2.1 Zelenko v. Gimbel Bros. ("The Undertaking Case")

MELLON MORTGAGE COMPANY, Petitioner,
v.
Angela N. HOLDER, f/k/a Angela N. Hamilton, individually and a/n/f for Nicholas C. Laske, Respondent.

Cecelio LUGTU et al., Plaintiffs and Appellants,
v.
CALIFORNIA HIGHWAY PATROL et al., Defendants and Respondents.

544 *544 V

Patricia PRICE and Bobby Price, her husband, Plaintiffs Below, Appellants,
v.
E.I. DuPONT DE NEMOURS & COMPANY, Defendant Below, Appellee.

Garnett P. MORGAN, et al., Appellants,
v.
DISTRICT OF COLUMBIA, Appellee.

1316 *1316 III

Adriana RUIZ et al.
v.
VICTORY PROPERTIES, LLC.

Linda KUBERT and David Kubert, Plaintiffs-Appellants,
v.
Kyle BEST, Susan R. Best, Executrix of the Estate of Nickolas J. Best, Deceased, Defendants, and
Shannon Colonna, Defendant-Respondent.

KENDRA KNIGHT, Plaintiff and Appellant,
v.
MICHAEL JEWETT, Defendant and Respondent.

UNITED STATES et al.
v.
CARROLL TOWING CO., Inc., et al.