Opinion

LILLIE, J.

Plaintiffs Maxine Hammontree and her husband sued defendant for personal injuries and property damage arising out of an automobile *530 accident. The cause was tried to a jury. Plaintiffs appeal from judgment entered on a jury verdict returned against them and in favor of defendant.

The evidence shows that on the afternoon of April 25, 1967, defendant was driving his 1959 Chevrolet home from work; at the same time plaintiff Maxine Hammontree was working in a bicycle shop owned and operated by her and her husband; without warning defendant’s car crashed through the wall of the shop, struck Maxine and caused personal injuries and damage to the shop.

Defendant claimed he became unconscious during an epileptic seizure losing control of his car. He did not recall the accident but his last recollection before it, was leaving a stop light after his last stop, and his first recollection after the accident was being taken out of his car in plaintiffs’ shop. Defendant testified he has a medical history of epilepsy and knows of no other reason for his loss of consciousness except an epileptic seizure; prior to 1952 he had been examined by several neurologists whose conclusion was that the condition could be controlled and who placed him on medication; in 1952 he suffered a seizure while fishing; several days later he went to Dr. Benson Hyatt who diagnosed his condition as petit mal seizure and kept him on the same medication; thereafter he saw Dr. Hyatt every six months and then on a yearly basis several years prior to 1967; in 1953 he had another seizure, was told he was an epileptic and continued his medication; in 1954 Dr. Kershner prescribed dilantin and in 1955 Dr. Hyatt prescribed phelantin; from 1955 until the accident occurred (1967) defendant had used phelantin on a regular basis which controlled his condition; defendant has continued to take medication as prescribed by his physician and has done everything his doctors told him to do to avoid a seizure; he had no inkling or warning that he was about to have a seizure prior to the occurrence of the accident.

In 1955 or 1956 the Department of Motor Vehicles was advised that defendant was an epileptic and placed him on probation under which every six months he had to report to the doctor who was required to advise it in writing of defendant’s condition. In 1960 his probation was changed to a once-a-year report.

Dr. Hyatt testified that during the times he saw defendant, and according to his history, defendant “was doing normally” and that he continued to take phelantin; that “[t]he purpose of the [phelantin] would be to react on the nervous system in such a way that where, without the medication, I would say to raise the threshold so that he would not be as subject to these episodes without the medication, so as not to have the seizures. He would not be having the seizures with the medication as he would without *531 the medication compared to taking medication”; in a seizure it would be impossible for a person to drive and control an automobile; he believed it was safe for defendant to drive.

Appellants’ contentions that the trial court erred in refusing to grant their motion for summary judgment on the issue of liability and their motion for directed verdict on the pleadings and counsel’s opening argument are answered by the disposition of their third claim that the trial court committed prejudicial error in refusing to give their jury instruction on absolute liability. 1

Under the present state of the law found in appellate authorities beginning with Waters v. Pacific Coast Dairy, Inc., 55 Cal.App.2d 789, 791-793 [131 P.2d 588] (driver rendered unconscious from sharp pain in left arm and shoulder) through Ford v. Carew & English, 89 Cal.App.2d 199, 203-204 [200 P.2d 828] (fainting spells from strained heart muscles), Zabunoff v. Walker, 192 Cal.App.2d 8, 11 [13 Cal.Rptr. 463] (sudden sneeze), and Tannyhill v. Pacific Motor Trans. Co., 227 Cal.App.2d 512, 520 [38 Cal.Rptr. 774] (heart attack), the trial judge properly refused the instruction. The foregoing cases generally hold that liability of a driver, suddenly stricken by an illness rendering him unconscious, for injury resulting from an accident occurring during that time rests on principles of negligence. However, herein during the trial plaintiffs withdrew their claim of negligence and, after both parties rested and before jury argument, objected to the giving of any instructions on negligence electing to stand solely on the theory of absolute liability. The objection was overruled and the court refused plaintiffs’ requested instruction after which plaintiffs waived both opening and closing jury arguments. Defendant argued the cause to the jury after which the judge read a series of negligence instructions and, on his own motion, BAJI 4.02 (res ipsa loquitur).

Appellants seek to have this court override the established law of this state which is dispositive of the issue before us as outmoded in today’s social and economic structure, particularly in the light of the now recognized principles imposing liability upon the manufacturer, retailer and all distributive and vending elements and activities which bring a product to the consumer to his injury, on the basis of strict liability in tort expressed first in Justice Traynor’s concurring opinion in Escola v. Coca Cola Bot *532 tling Co., 24 Cal.2d 453, 461-468 [150 P.2d 436]; and then in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049]; Vandermark v. Ford Motor Co., 61 Cal.2d 256 [37 Cal.Rptr. 896, 391 P.2d 168]; and Elmore v. American Motors Corp., 70 Cal.2d 578 [75 Cal.Rptr. 652, 451 P.2d 84]. These authorities hold that “A manufacturer [or retailer] is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 62; Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 260-261.) Drawing a parallel with these products liability cases, appellants argue, with some degree of logic, that only the driver affected by a physical condition which could suddenly render him unconscious and who is aware of that condition can anticipate the hazards and foresee the dangers involved in his operation of a motor vehicle, and that the liability of those who by reason of seizure or heart failure or’ some other physical condition lose the ability to safely operate and control a motor vehicle resulting in injury to an innocent person should be predicated on strict liability.

We decline to superimpose the absolute liability of products liability cases upon drivers under the circumstances here. The theory on which those cases are predicated is that manufacturers, retailers and distributors of products are engaged in the business of distributing goods to the public and are an. integral part of the over-all producing and marketing enterprise that should bear the cost of injuries from defective parts. (Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262 [37 Cal.Rptr. 896, 391 P.2d 168]; Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63 [27 Cal. Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049].) This policy hardly applies here and it is not enough to simply say, as do appellants, that the insurance carriers should be the ones to bear the cost of injuries to innocent victims on a strict liability basis. In Maloney v. Rath, 69 Cal.2d 442 [71 Cal.Rptr. 897, 445 P.2d 513], followed by Clark v. Dziabas, 69 Cal.2d 449 [71 Cal.Rptr. 901, 445 P.2d 517], appellant urged that defendant’s violation of a safety provision (defective brakes) of the Vehicle Code makes the violator strictly liable for damages caused by the violation. While reversing the judgment for defendant upon another ground, the California Supreme Court refused to apply the doctrine of strict liability to automobile drivers. The situation involved two users of the highway but the problems of fixing responsibility under, a system of strict liability are as complicated in the instant case as those in Maloney v. Rath (p. 447), and could only create uncertainty in the area of its concern. As stated in Maloney, at page 446; “To invoke a rule of strict liability on users of the streets and highways, however, without also establishing in substantial detail how the *533 new rule should operate would only contribute confusion to the automobile accident problem. Settlement and claims adjustment procedures would become chaotic until the new rules were worked out on a case-by-case basis, and the hardships of delayed compensation would be seriously intensified. Only the Legislature, if it deems it wise to do so, can avoid such difficulties by enacting a comprehensive plan for the compensation of automobile accident victims in place of or in addition to the law of negligence.”

The instruction tendered by appellants was properly refused for still another reason. Even assuming the merit of appellants’ position under the facts of this case in which defendant knew he had a history of epilepsy, previously had suffered seizures and at the time of the accident was attempting to control the condition by medication, the instruction does not except from its ambit the driver who suddenly is stricken by an illness or physical condition which he had no reason whatever to anticipate and of which he had no prior knowledge.

The judgment is affirmed.

Wood, P. J., and Thompson, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied December 16,1971.

Cardozo, J.

The defendant runs a trolley line in the city of Dunkirk, employing the overhead wire system. At one point, the road is crossed by a bridge or culvert which carries the tracks of the Nickle Plate and Pennsylvania railroads. Pedestrians often use the bridge as a short cut between .streets, and children play on it. On April 21, 1916, the plaintiff, a boy of twelve years, came across the bridge, swinging a wire about eight feet long. In swinging it, he brought it in contact with the defendant’s trolley wire, which ran beneath the structure. The side of the bridge was protected by a parapet eighteen inches wide. Four feet seven and' three-fourths inches below the top of the parapet, the trolley wire was strung. The plaintiff was shocked and burned when the wires came together. He had a verdict at Trial Term, which has been affirmed at the Appellate Division by a divided court.

We think the verdict cannot stand. The defendant in using an overhead trolley was in the lawful exercise of its *210 franchise. Negligence, therefore, cannot be imputed to it because it used that system and not another (Dumphy v. Montreal L., H. & P. Co., 1907 A. C. 454). There was, of course, a duty to adopt all reasonable precautions to minimize the resulting perils. We think there is no evidence that this duty was ignored. The trolley wire was so placed that no one standing on the bridge or even bending over the parapet could reach it. Only some extraordinary casualty, not fairly within the area of ordinary prevision, could make it a thing of danger. Reasonable care in the use of a destructive agency imports a high degree of vigilance (Nelson v. Branford L. & W. Co., 75 Conn. 548, 551; Braun v. Buffalo Gen. El. Co., 200 N. Y. .484). But no vigilance, however alert, unless fortified by the gift of prophecy, could have predicted the point upon the route where such an accident would occur. It might with equal reason have been expected anywhere else. At any point upon the route, a mischievous or thoughtless boy might touch the wire with a metal pole, or fling another wire across it (Green v. W. P. Rys. Co., 246 Penn. St. 340). If unable to reach it from the walk, he might stand upon a wagon or climb upon a tree. No special danger at this bridge warned the defendant that there was need of special measures of precaution. No like accident had occurred before. No custom had been disregarded. We think that ordinary caution did not involve forethought of this extraordinary peril. It has been so ruled in like circumstances by courts in other jurisdictions (Green v. W. P. Rys. Co., supra; Vannatta v. Lancaster L. & P. Co., 164 Wis. 344; Parker v. Charlotte Elec. Ry. Co., 169 N. C. 68; Kempf v. S. &I. E. R. R. Co., 82 Wash. 263; Sheffield Co. v. Morton, 161 Ala. 153). Nothing to the contrary was held in Braun v. Buffalo Gen. El. Co. (200 N. Y. 484) or Wittleder v. Citizens Electric Ill. Co. (47 App. Div. 410). In those cases, the accidents were well within the range of prudent foresight (Braun v. Buffalo Gen. El. Co., supra, at p. *211 494). That was also the basis of the ruling in Nelson v. Branford Lighting & Water Co. (75 Conn. 548, 551). There is, we may add, a distinction, not to ignored, between electric light and trolley wires. The distinction is that the former may be insulated. Chance of harm, though remote, may betoken negligence, if needless. Facility of protection may impose a duty to protect. With trolley wires, the case is different. Insulation is impossible. Guards here and there are of little value. To avert the possibility of this accident and others like it at one point or another on the route, the defendant must have abandoned the overhead system, and put the wires underground. Neither its power nor its duty to make the change is shown. To hold it liable upon the facts exhibited in this record would be to charge it as an insurer.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Hiscock, Ch. J„, Chase, Collin, Hogan, Crane and Andrews, JJ., concur.

Judgments reversed, etc.

Hiscock, J.

While plaintiff’s intestate was engaged as a carpenter in the erection of a building on private premises in the city of Buffalo, he took hold of two wires strung and maintained by the respondent across said premises and carrying an electric current of a high voltage. Inasmuch as the insulation on these wires had become ragged and defective there followed the quite inevitable result — death of the man. The learned courts below have unanimously decided that the intestate was killed without legal responsibility on the part of the respondent for the part which it took in bringing about this result, and in determining whether this conclusion was justified we are called on to consider the rule of care and responsibility which governs a company carrying wires charged with dangerous currents of electricity over private premises in the midst of a large and thickly populated city.

The controlling facts which present this question in this ease as they might have been found by the jury are as follows:

The premises where the intestate was at work were part of a lot situate at the corner of Northampton street and East Parade avenue in the city of Buffalo. The entire lot was thirty feet front on Northampton street and had a frontage on East Parade avenue of one hundred and fifty feet. Some years before the accident a one-story house had been erected facing on Northampton street and with a yard occupying about sixty feet in depth along East Parade avenue. In the rear of this lot and fronting on the latter avenue the owner had commenced the erection of what was intended to be a two-family apartment house. This building had been in process of construction for some time and had reached the point where joists were being laid between the second and third floors at a distance of something over twenty feet from the ground. As *488 far back as 1888 or 1889 the respondent, under a written permission, and so far as appears without compensation, had strung two electric wires for the purpose of furnishing electric light to a summer park nearby. These wires from 'their terminus in the park were carried to a pole in East Parade avenue, and thence diagonally across the premises in question, so that they were situated directly over the building in process of erection. They had not been in service from November until the date of the accident in March, but nevertheless they were carrying a current of between 2,000 and 8,000 volts. They were from twenty to twenty-four inches apart and ran about four and a half feet above the joists on which the deceased was working, making a total distance from the ground of twenty-five or twenty-six feet. There was nothing to indicate who maintained them. It was discovered after the accident that the insulation at and around the point of contact by deceased had become defective and entirely ineffective to protect a person from the electric current, and so far as appears nothing had been done in the way of inspecting or repairing this insulation during the entire time of the service of the wires as above stated, although it appeared that such insulation as was used would not remain effective for more than three years.

The diameter of an ordinary telephone wire which does not carry a current of sufficient voltage to be dangerous is about one-sixteenth of an inch without insulation and the wires in question had a diameter of about five-sixteenths of an inch. The ownership of the premises had changed since the installation of the wires and except for the difference in size there was nothing to indicate even to an experienced person that the wires were not telephone wires or that they were “ alive ” and dangerous. In fact the contractor for whom the deceased was at work stated that betook them to be telephone wires. The entire neighboorhood, except this one lot, was built up presumably with dwelling buildings. The deceased was called by one of his co-workmen to come and assist in straightening out the joists which naturally required him to *489 move around on the joists below the wires. He was not seen at the instant when he took hold of the latter, but being attracted by a noise one of the witnesses discovered him with one hand on each wire and hanging down therefrom. Owing to the relative situation of the wires and the joists it would be natural for one desiring to go fronrone side of the building to the other to raise the wires so that he could pass under or bear down on them so that he could step over.

The question now presented to us is one of those which as a general class are constantly becoming of greater importance. In earlier times the proposition that a man owned all of the space above his land commonly became, after a short distance, one of mere theoretical interest, but with the constantly increasing uses for upper space this is changing, and the subject is continually becoming more and more one of new and 'practical importance. Recently this court has held in opposition to earlier authorities that an action of ejectment may be maintained for the removal of a telephone wire stretched at considerable height over a man’s premises. (Butler v. Frontier Telephone Co., 186 N. Y. 486.)

While the measure of liability of one stringing or maintaining overhead wires conducting a dangerous current of electricity has been frequently under consideration, it may be admitted that it has not been determined under circumstances entirely analogous to those now presenting it, and we are, therefore, called on to determine largely by .the application of general principles the rule which should be applied.

As a preliminary general consideration counsel for the respondent, in view of the evidence that the insulation such as was originally placed on the wires would be effective for only three years, argues that it would be a great hardship to require a company like the respondent to renew this insulation so frequently, and that as a matter of general policy we should not impose any such burden. It is probable that the weight of the burden is somewhat exaggerated, but however that may be this argument does not impress us as being very decisive of the rule which should be applied in this or similar *490 cases. It is a matter of common knowledge that a company like the respondent for its own profit ordinary installs and maintains its wires across private premises without compensation. In a large city overhead wires are apt to be numerous, and there are no such marked characteristics of the different ones as would enable an ordinary layman to distinguish between those which are comparatively harmless, like a telephone wire, and those which are charged with a deadly current like those here. While the convenience of electric and telephone wires is obvious and their maintenance should not be burdened with excessive liabilities, still it seems clear that a company maintaining dangerous wires should not be relieved on the ground of expense from the affirmative duty of exercising a reasonable degree of care to maintain proper insulation and thereby prevent accidents reasonably to be apprehended to those lawfully coming in the neighborhood of such wires.

When we apply general principles of diligence and care to the respondent in this case its conduct seems to be such that a jury should have been allowed to decide whether or not it was guilty of negligence rather than that the court should have held as a matter of law that it was not guilty thereof.

Little need or can be said about the condition of the wires, for if the respondent owed any obligation whatever of making them safe it would scarcely have been more negligent if, instead of allowing them to remain uninspected and unrepaired as it did, it had strung and maintained absolutely naked wires. The only question which is at all close is whether the respondent in the exercise of reasonable care and foresight should have apprehended that the premises over which the wires were strung might be so used as to bring people in contact with them, and whether, therefore, it should have guarded against such a contingency. As indicated, I think this was fairly a question for the jury. Here was a vacant lot in the midst of a thickly built-up section of a large city. It was no remote or country lot where no buildings could be expected. The neighboring land was covered with buildings. *491 It was the only vacant lot in the vicinity. It fronted on a street and there was plenty of space for a building. Now, what was reasonably to be anticipated — that this lot ivould be allowed indefinitely to lie unimproved and unproductive, or that it, like other surrounding lots, would be improved by additions to the old building or by the erection of new and independent ones? Was it to be anticipated that its use would be an exception to the rule prevailing in the entire neighborhood or that it would be in conformity therewith ? It seems to me that the answer to these questions should have been made by the jury, and that the latter would be justified in saying that the respondent was bound to anticipate what was usual rather than that which was exceptional and act accordingly. It does not appear how much this neighborhood may have changed since the wires were first strung, but assuming that it had materially changed in respect of the use of lots for buildings, such a change in a neighborhood for aught that appears in this case requires some time, and as a basis for responsibility it is not too much to charge a company stringing such wires with notice of gradual changes in the locality through which the wires pass.

Of course it is not necessary to say that the respondent might be required in the exercise of reasonable prudence to anticipate that just this particular fashion of building would be erected at just the particular spot where intestate was working. If it could be required to foresee that the lot would probably be built upon, the situation of the wires was such with reference to the ground and the shape of the lot that a jury might fairly say that such building operations were quite apt to bring persons in proximity to the wires and that they should be safeguarded. It is not a satisfactory answer to appellant’s claim that the company should have exercised care respecting its wires to say that the intestate or his employer should have noticed them and given notice to remove or make them safe, for, as has been pointed out, there was nothing to indicate to whom the wires belonged or, as matter of law, that they were dangerous.

*492 As has been said, apparently there are no authorities directly in point. Some may be cited, however, which tend to support the conclusions here adopted. The fundamental and general principle that a company like respondent, if reasonably chargeable with knowledge, or in the exercise of reasonable prudence bound to anticipate, that people may lawfully come in close proximity to its wires either for purposes of business or pleasure, is under obligation to exercise care to keep the latter in a safe condition is abundantly established. (Connell v. Keokuk El. Ry. & P. Co., 131 Iowa, 622; Rowe v. Taylorville El. Co., 213 Ill. 318, 322; Fitzgerald v. Edison El. Ill. Co., 200 Penn. St. 540; Wabash, St. L. & P. Ry. Co. v. Locke, 112 Ind. 404; McLaughlin v. Louisville El. L. Co., 100 Ky. 173.)

It is only the application of this general principle which can provoke discussion, and the cases next cited are illustrative of the varying circumstances to which it has been applied, with the result of holding that the defendant might be held negligent for not anticipating and guarding against the accidental contact by an outsider in each case with its wires.

In Fitzgerald v. Edison El. Ill. Co. (200 Penn. St. 540) it appeared that the intestate, who was a painter, for his convenience went on a roof and, in order to do his work, propped up some of defendant’s wires. Subsequently one of these slipped from the prop and killed him because of defect in insulation, and it was held that a nonsuit was improper.

In McLaughlin v. Louisville El. L. Co. (100 Ky. 173) the defendant was held liable to a painter on a house who came in contact with a nearby wire of defendant which was imperfectly insulated.

In Griffin v. United El. L. Co. (164 Mass. 492) it appeared that plaintiff was a tinsmith engaged in placing a conductor on a building and was injured through the latter pipe accidentally coming in contact with a defective wire several feet away. It was held that the defendant, owing the duty to use reasonable diligence to keep its wires in repair for every person who for purposes of business might bo rightfully on the *493 premises, was liable although the injuries were the result of an accidental and somewhat novel contact.

Geissman v. Missouri-Edison El. Co. (173 Mo. 654) is a somewhat analogous case. There the defendant was held liable in a case where deceased, who was engaged in removing a sign, was killed through a wire connected with the sign coming in contact with a defectively insulated wire of defendant several feet away.

In Daltry v. Media Electric L., H. & P. Co. (208 Penn. St. 403) the defendant was held liable for injuries from a defectively insulated wire which was strung across a private lawn and which 'came in contact with plaintiff, a boy ten years old, who had passed from the street on to the lawn to play. The court said: “ Having constructed the line across the lawn to the house in proximity to the carriageway, it knew that children as well as adults might frequent the way and, hence, the necessity of keeping its wires in a proper condition and repair to avoid danger. It must be presumed that the company also knew what the evidence disclosed as a fact that children used the lawn of the premises near the gateway and in the vicinity of the wire as well as the street in front of the premises as a playground. * * * It was, therefore, the duty of the company * * * to take reasonable precautions to prevent injury to persons who might be at this point.”

In Byerly v. Con. Light, P. & I. Co. (130 Mo. App. 593), although plaintiff was defeated on other grounds, it appeared that the intestate was engaged in working around a pile of refuse produced from a mine growing larger as fresh deposits were made. By reason of this growth, one of the defendant’s wires which originally was far enough away not to be dangerous, was finally brought near to the pile so that intestate, as assumed, came in contact therewith. It was held on that branch of the case that it was the duty of defendant, in view of the changes in the pile, either to have insulated its wires or else to have elevated them beyond the line of danger.

In Temple v. McComb City El. Light & Power Company (Supreme Court of Mississippi, 42 South. Rep. 874) a demurrer *494 was overruled to a complaint in which it was in substance stated that the plaintiff, a boy ten years old, had been injured by coming in contact with a live wire strung by defendant through a tree with branches reaching nearly t,o the ground in a thickly populated neighborhood and in which plaintiff and other children played. In holding that the bill stated a cause of action, the court did so not on the ground that the defendant actually knew of the habit of the plaintiff and other children, but on the ground that “it did know the tree, the kind of tree, and, knowing that, knew what any person of practical common sense would know — that it was just the kind of a tree that children might climb into to play in the branches.”

In Horning v. Hudson River Tel. Co. (111 App. Div. 122; affirmed, 186 N. Y. 552) plaintiff recovered for injuries which were primarily caused by a disused telephone wire dropping upon an electric light wire, neither being properly insulated, and whereby a powerful current was conducted to his body while handling the telephone wire. The contact of the two wires was caused by the burning of a building to which the telephone wire was attached by brackets. On appeal the charge of the trial court was approved, which, amongst other things, instructed the jury in effect that one of the questions in the case was whether the electric light company in the exercise of reasonable prudence should have observed the insulation of the wires and that the telephone wire was supported by a wooden building which was liable to burn causing the wires to come in contact as they did.

The true scope of these decisions as indicating the range of probabilities which an electric company may be required to anticipate is made all the clearer by reference to a single case cited by the respondent, in which it was held that the occurrences leading to the accident were so irregular and unusual that such a company could not reasonably be expected to foresee them.

In Sheffield Co. v. Morton (49 South. Rep. 772) the attempt was made to recover for the injuries to a boy who had come *495 in contact with one of the defendant’s wires. But it appearing that the wire in question was maintained on a bluff out of reach of persons resorting to the neighboring level places in an ordinary and rational way, and that the plaintiff came in contact with it only after climbing into a position of difficulty on the bluff and of obvious danger independent of the wire, it was held that defendant, could not be held liable for not anticipating such a situation.

While it may be going a step further than these authorities went to decide that respondent may, if a jury sees proper, be held to the obligation of anticipating the use of the land under its wires for building purposes which would bring people in close proximity to the latter, I think this step is a logical and proper one, and, therefore, should be taken.

If, as has been reasoned, the respondent could be held to anticipate such use of the lot as was made and safeguard its wires for the protection of persons liable to come in contact with them, this obligation would be broad enough to include as amongst those entitled to its protection one like intestate, who was upon the premises by express request or permission for a lawful purpose. (Griffin v. United Electric L. Co., 164 Mass. 492; Ennis v. Gray, 87 Hun, 355, 359, 360; Wagner v. Brooklyn Heights R. R. Co., 69 App. Div. 349; Wabash, St. L. & P. Ry. Co. v. Locke, 112 Ind. 404.)

In addition to the argument that respondent was not negligent, it is urged that there is no sufficient evidence to show that the intestate was free from contributory negligence. I have already referred to the facts bearing on that subject, and think the jury would have been allowed by the evidence to reach the conclusion that the intestate in moving about in the course of his work took hold of the wires for the purpose of passing under or over them, and that he was not guilty of negligence as a matter of law for not knowing the nature of the wires (Giraudi v. Electric Imp. Co., 107 Cal. 120), or for not noticing the lack of proper insulation, which was not discovered by any of the men at work on the building until the day after the accident. (Illingsworth v. Boston El. L. Co., *496 161 Mass. 583.) It has often been said that where the injured person is dead wider latitude should be allowed to the jury in passing on this question of contributory negligence, and this case seems to come well within those where it has been decided on meagre evidence that the care of the deceased person was a question for the jury. (Schafer v. Mayor, etc., of N. Y., 154 N. Y. 466; Jones v. N. Y. C. & H. R. R. R. Co., 28 Hun, 364; affirmed, 92 N. Y. 628; Noble v. N. Y. C. & H. R. R. R. Co., 20 App. Div. 40; affirmed, 161 N. Y. 620; Hart v. Hudson River Bridge Co., 80 N. Y. 622.)

For these reasons I recommend that the judgment of both courts be reversed and a new trial granted, with costs to abide event.

Judgment reversed, etc.

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 bargee, 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; *171but, 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 *172to 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 holding10 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 *173inside barge. In The P. R. R. No. 216,11 we charged with liability a lighter which broke loóse 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. 2313 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 bar-gee 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. Williams-burgh Power Plant Corporation15, 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 *174that 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 im-pleaded, 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.

*350 OPINION OF THE COURT

Levine, J.

Over a century ago this Court adopted its version of the rule which came to prevail at the time in almost all State jurisdictions, imposing the duty upon common carriers of “the exercise of the utmost care, so far as human skill and foresight can go,” for the safety of their passengers in transit (Kelly v Manhattan Ry. Co., 112 NY 443, 450 [emphasis supplied]). New York, however, limited application of the rule of the carrier’s duty of extraordinary care to possible defects “in the road-bed, or machinery or in the construction of the cars, or * * * appliances such as would be likely to occasion great danger and loss of life” (id., at 450). The duty of highest care was not extended to risks of injuries resulting from the conduct of operational employees of carriers (see, Stierle v Union Ry. Co., 156 NY 70, 73, rearg denied 156 NY 684), or to the carriers’ stations, platforms or other facilities of ingress or egress (see, Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 248, affd 64 NY2d 670). For those situations, the customary standard of reasonable care applied.

*351 Nearly 50 years ago, this Court suggested that the rule of a common carrier’s duty of extraordinary care should be reexamined (see, McLean v Triboro Coach Corp., 302 NY 49, 51). Since McLean, two Second Circuit panels have anticipated our eventual abandonment of the rule, in favor of the more universal standard of reasonable care under all of the circumstances of the particular case (see, Stagl v Delta Airlines, 52 F3d 463, 471, n 5; Plagianos v American Airlines, 912 F2d 57, 59). And two terms ago, in overruling another latter 19th century special doctrine of common carrier liability for injuries to passengers (for the torts of employees, irrespective of whether they were acting within the scope of their employment), we again questioned whether exacting a carrier’s duty of exceptional care was still appropriate (see, Adams v New York City Tr. Auth., 88 NY2d 116, 121).

We granted leave to appeal in this case to confront directly whether a duty of highest care should continue to be applied, as a matter of law, to common carriers and conclude that it should not. We thus realign the standard of care required of common carriers with the traditional, basic negligence standard of reasonable care under the circumstances. Under that standard, there is no stratification of degrees of care as a matter of law (see, Prosser and Keeton, Torts § 34, at 210 [5th ed]). Rather, “there are only different amounts of care, as a matter of fact” (id., at 211).

In this case, plaintiff boarded New York City Transit Authority M5 Bus No. 2209, in midtown Manhattan on June 19, 1989, and proceeded to a seat directly opposite the rear door of the bus referred to at the trial as the “wheelchair accessible seat.” The seat was wheelchair accessible only in the sense that if a wheelchair-bound passenger entered the bus at the rear door by means of the disabled person’s platform lift, the seat could be folded up and against the sidewall of the bus by means of a lever under it, thereby creating a space for the wheelchair and passenger to be strapped in against the wall. At any other time, the seat would be in its normal horizontal position, available for ordinary seating by ambulatory passengers. According to plaintiff, this seat collapsed immediately upon his sitting down and he fell to the floor of the bus, severely injuring his back. After the accident, a Transit Authority inspection revealed that the position of the seat was at a slightly elevated angle and that the seat could not be restored to its normal, completely horizontal position. In the inspector’s attempt to adjust the seat, a hinge broke and the seat collapsed.

*352 Plaintiff was unable to produce any evidence that the Transit Authority actually knew that the seat was subject to collapse. Instead, plaintiff relied upon a theory of constructive notice, evidenced by a computer printout repair record of Bus No. 2209, containing two notations that, 11 days before the accident, repairs (adjustment and alignment) were made to a “Lift Wheelchair.” Plaintiff contended that the repairs to the “Lift Wheelchair” were to the seat in question, and that a proper inspection during those repairs would have revealed the defect causing the seat to collapse 11 days later.

The court charged the jury that, as a common carrier, “[t]he bus company here * * * had a duty to use the highest degree of care that human prudence and foresight can suggest in the maintenance of its vehicles and equipment for the safety of its passengers” (see, PJI3d 2:164). On the issue of constructive notice, arising out of the earlier inspection and repair, the trial court submitted to the jury the question of whether “considering the duty of care that is imposed on common carriers with respect to this equipment, a reasonable inspection would have led to the discovery of the condition and its repair” before the accident (emphasis supplied).

The jury found in favor of plaintiff solely on the basis of constructive notice. The Appellate Division affirmed (242 AD2d 223), holding that the evidence of constructive notice was legally sufficient to present a jury question, and that the verdict was not against the weight of the evidence. The Court found all of the Transit Authority’s remaining arguments to be merit-less, without addressing the Authority’s objection to the court’s instruction on the elevated duty of care owed by common carriers.

We agree with the Appellate Division that the Transit Authority was not entitled to a dismissal of the complaint for legal insufficiency. Thus, the dispositive issue on this appeal is the propriety of the trial court’s instruction which embodied the rule of a carrier’s duty of exceptional care.

The duty of common carriers to exercise the highest degree of care, like the special rule of vicarious liability overturned in Adams v New York City Tr. Auth. (supra), was widely adopted at the advent of the age of steam railroads in 19th century America. Their primitive safety features resulted in a phenomenal growth in railroad accident injuries and with them, an explosion in personal injury litigation, significantly affecting the American tort system (see, Friedman, A History of Ameri *353 can Law, at 482-484, 485, n 47 [2d ed 1985]). In this century, however, through technological advances and intense govern- . mental regulation, “public conveyances *. * * have become at least as safe as private modes of travel” (Adams v New York City Tr. Auth., supra, 88 NY2d, at 121).

Time has also disclosed the inconsistency of the carrier’s duty of extraordinary care with the fundamental concept of negligence in tort doctrine.

“The whole theory of negligence presupposes some uniform standard of behavior. Yet the infinite variety of situations which may arise makes it impossible to fix definite rules in advance for all conceivable human conduct * * * The standard of conduct which the community demands must be an external and objective one, rather than the individual judgment, good or bad, of the particular actor * * * The courts have dealt with this very difficult problem by creating a fictional person * * * the ‘reasonable [person] of ordinary prudence’ ” (Prosser and Keeton, Torts § 32, at 173-174 [5th ed]).

(See also, Restatement [Second] of Torts § 283, comment c [“(t)he chief advantage of this standard of the reasonable (person) is that it enables the triers of fact * * * to look to a community standard rather than an individual one, and at the same time to express their judgment of what that standard is in terms of the conduct of a human being”].)

The objective, reasonable person standard in basic traditional negligence theory, however, necessarily takes into account the circumstances with which the actor was actually confronted when the accident occurred, including the reasonably perceivable risk and gravity of harm to others and any special relationship of dependency between the victim and the actor.

“The [reasonable person] standard provides sufficient flexibility, and leeway, to permit due allowance to be made * * * for all of the particular circumstances of the case which may reasonably affect the conduct required” (Restatement [Second] of Torts § 283, comment c; see also, Prosser and Keeton, op. cit., at 174).

Recognition that the rule of a common carrier’s duty of extraordinary care conflicted with the underlying negligence theory embodied in the reasonable person standard occurred early in this century. Thus, in Union Traction Co. v Berry (121 *354 NE 655, 188 Ind 514 [1919]), the Indiana Supreme Court reversed a judgment in which the jury was charged on the defendant carrier’s duty of the highest care. The court noted that application of the reasonable person standard will result in a sliding scale of due care factually “commensurate to the danger involved under the circumstances of the particular case” (id., 121 NE, at 657, 188 Ind, at 522). Therefore, the court reasoned “[i]t is not practicable for a court to fix and declare as a matter of law the quantum of care or the degree of care that should be exercised under the conditions and circumstances peculiar to any special case; that duty rests with the jury to be performed under proper instructions from the court” (id., 121 NE, at 658, 188 Ind, at 522-523). Hence, instructing the jury on a quantum of highest degree of care is “misleading” and when so used, “constitute[s] an invasion of the province of the jury” (id., 121 NE, at 658, 188 Ind, at 523).

Similar criticisms were leveled at the rule in a 1928 law review article (see, Green, High Care and Gross Negligence, 23 111 L Rev 4). Imposition upon carriers of a duty of highest care was said to have come from a misreading of English cases (id., at 5-7) and its adoption was attributed to the “sentimental and rhetorical value of an appeal for the utmost exercise of human care * * * as applied to the novel institution of transportation by steam” (id., at 8). The article charged the rule with creating a confused but analytically meaningless different standard from the common negligence standard of a reasonable person under the particular circumstances, serving no function except “that in an action by a passenger against a carrier the jury is invited to scrutinize the carrier’s conduct in an endeavor to find it defective” (id., at 10-11).

Then, in McLean v Triboro Coach Corp. (supra), this Court also noted that the Kelly v Manhattan Ry. Co. rule cannot be squared with the customary negligence standard of care of the reasonably prudent person under the circumstances of the particular case.

“ [I] t may well be asked whether it is ever practicable for one to use more care than one reasonably can; whether it is ever reasonable for one to use less; or whether, in sum, there can ever be more than one degree of care” (McLean v Triboro Coach Corp., supra, 302 NY, at 51).

In addition to its inherent inconsistency with the underlying concept of negligence in common-law tort doctrine previously *355 discussed, our contemporary negligence jurisprudence has essentially undermined both of the main policy justifications for exacting of common carriers a duty of extraordinary care. The two most often expressed rationales for duty of highest care were (1) the perceived ultrahazardous nature of the instrumentalities of public rapid transit, and (2) the status of passengers and their relationship to the carrier, notably their total dependency upon the latter for safety precautions (see, Adams v New York City Tr. Auth., supra, 88 NY2d, at 121-122; Green, op. cit., at 8; 3 Harper, James and Gray, Torts § 16.14, at 508, n 6 [2d ed]).

We, however, have since held that the single, reasonable person standard is sufficiently flexible by itself to permit courts and juries fully to take into account the ultrahazardous nature of a tortfeasor’s activity. Thus, we ruled in Miner v Long Is. Light. Co. (40 NY2d 372) that applying the “common-law standard of due care” (id., at 380) was sufficient to hold a utility liable for failing to exercise an elevated level of precaution commensurate with the foreseeable extreme danger of placing high voltage lines in a residential neighborhood. There is no empirical or policy basis why, in the case of common carriers, the reasonable care standard is not similarly sufficient to permit triers of fact to take into account all of the hazardous aspects of public transportation in deciding whether due care was exercised in a particular case.

Our decision in Basso v Miller (40 NY2d 233) undermines the need for the Kelly rule based upon the injured party’s status as a passenger and that person’s dependent relationship with the carrier. In Basso, we rejected an even more entrenched and venerable stratification of degrees of care (owed by owners or occupiers of land), hinging upon the status or relationship of the injured party to the defendant. We recognized in Basso that reliance upon status distinctions to fix the appropriate degree of care as a matter of law results in anomalies and semantic confusion and conflicts (id., at 240). Thus, in Basso we abandoned the long-established three-tiered standard of care, based upon the injured party’s relationship to the landowner, in favor of the single reasonable person standard. The injured party’s status on the land, however, could be taken into account in determining “what would be reasonable care under the circumstances” (id., at 241).

As with the doctrine overturned in Basso, the imposition upon common carriers of a legal duty of extraordinary care can produce anomalous results, as when a passenger is injured by *356 the negligent operation of a bus or train, rather than a defect in the “road-bed, or machinery or * * * appliances” (Kelly v Manhattan Ry. Co., supra, 112 NY, at 450), or a ticketed passenger suffers an injury as a result of the defective condition of the carrier’s station platform rather than in transit. In both instances, the carrier would only be held to a duty of ordinary care (see, Stierle v Union Ry. Co., supra; Lewis v Metropolitan Transp. Auth., supra). Moreover, as we noted in McLean v Triboro Coach Corp. (supra), the Kelly highest care standard also presents uncertainties in its application by the courts (of which the instant case may well be illustrative). Among such uncertainties for trial courts is whether the defective equipment at issue should be considered an “appliance [] such as would be likely to occasion great danger and loss of life” to passengers (Kelly v Manhattan Ry. Co., supra, at 450), thus triggering a jury instruction on the defendant’s duty of the highest care.

Moreover, when charged to the jury, the rule may well skew its deliberations, so that, in effect, “the jury is invited to scrutinize the carrier’s conduct in an endeavor to find it defective” (Green, op. cit, at 11).

For all of the foregoing reasons, we conclude that the rule of a common carrier’s duty of extraordinary care is no longer viable. Rather, a common carrier is subject to the same duty of care as any other potential tortfeasor — reasonable care under all of the circumstances of the particular case. Here, because the jury was specifically charged that the defendant carrier was required to exercise “the highest degree of care that human prudence and foresight can suggest” in connection with the issue of its constructive notice of the defective seat, the error cannot be deemed merely harmless.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for a new trial.

Chief Judge Kaye and Judges Bellacosa, Smith, Ciparick and Wesley concur.

Order reversed, etc.

HOFFMAN, Judge.

Appellant Indiana Consolidated Insurance Company seeks review of the finding that Robert D. Mathew (Mathew) did not act in a negligent manner so as to be liable for damages done to his brother’s garage when a Toro riding lawnmower that Mathew was starting caught fire. Appellant insured the garage and premises under a homeowner’s insurance policy and is pursuing this claim against Mathew by virtue of its subrogation rights.

Appellant presents two allegations of error, whether the court erred as a matter of law in finding that Mathew’s actions did not constitute negligence and whether the trial court erred in overruling its motion to reconsider.

Appellant correctly recognizes that it is appealing a negative judgment. As such the decision below can only be reversed if the evidence is uncontradicted and will support no reasonable inference in favor of the finding. Taxpayers Lobby v. Orr (1974), 262 Ind. 92, 311 N.E.2d 814. Upon such review the evidence is not to be reweighed or issues of credibility resolved, and the evidence is to be scrutinized from a standpoint most favorable to the judgment below. Link v. Sun Oil Co. et al. (1974), 160 Ind.App. 310, 312 N.E.2d 126.

With this standard in mind, the facts favorable to Mathew disclose that on May 1, 1976 Mathew’s brother was out of town for the weekend. The two brothers lived across the street from each other and took turns mowing both lawns. In the late afternoon Mathew decided to mow both lawns and went to his brother’s garage where a twelve horsepower Toro riding lawnmower *1002 was stored. The mower was approximately eight years old, was kept in good mechanical condition, and had required only minor tune-ups and belt replacements for the rotary mower assembly. Mathew pulled the mower away from the side wall of the garage and after checking the gas gauge filled the lawnmower approximately three-fourths full with gasoline using a funnel. He then went back across the street to his home for approximately twenty minutes. Upon returning to the garage Mathew started the lawnmower. However, he noticed a flame in the engine area under the hood and immediately shut the engine off. He opened the hood and saw a flame four to five inches tall under the gas tank. Using some clean towels Mathew tried to snuff out the flame but was unsuccessful. He could find no other means to extinguish the fire. The flames continued to grow and the machine began spewing gasoline, so he ran to his home to call the fire department. He returned to find the garage totally engulfed in flames.

At trial Mathew testified that he was afraid to try to push the flaming machine outside the garage for fear that the tank would explode in his face.

Indiana Consolidated brought this action against Mathew alleging that he breached a duty owed to his brother to exercise due care in starting the lawnmower and therefore stands liable for the damages resulting from his negligence. After a bench trial the Court below entered the following finding, to-wit:

“The Court having heretofore taken this matter under advisement and having considered the evidence introduced in the trial of this cause and being sufficiently advised, now enters Findings as follows: The Court now finds from the evidence concerning the past activities concerning the defendant in this cause and his involvement with the mower in question and the practices which he followed and from all of the circumstances present in this case that the defendant, Robert D. Mathew, did not act in any manner other than a reasonable prudent person would act under the same or similar circumstances; the Court further finds that there is no evidence of negligence on the part of the defendant, Robert D. Mathew, and that the plaintiff should take nothing by its complaint.

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE COURT that the plaintiff, Indiana Consolidated Insurance Company, take nothing by its complaint; and Judgment is entered for and on behalf of the defendant, Robert D. Mathew. Costs of this action are taxed to the plaintiff.”

On appeal appellant contends that the judgment is contrary to law because Mathew was negligent in filling the gas tank, in starting the mower in an enclosed area, and in failing to push the flaming mower out of the garage. The standard by which Mathew’s conduct is to be measured is whether he exercised the duty to use due care in operating the mower that an ordinary prudent man would exercise under the same or similar circumstances.

See: New York Central R.R. Co. v. Casey (1938), 214 Ind. 464, 14 N.E.2d 714; Orth v. Smedley (1978), Ind.App., 378 N.E.2d 20; Pierce v. Horvath et al. (1968), 142 Ind.App. 278, 233 N.E.2d 811.

The record amply supports the finding that Mathew did not act in a negligent manner in filling the gas tank. He testified that he did so carefully, with the use of a funnel. He did not fill the tank full, and he was adamant in his belief that he did not spill any gasoline. He hypothesized, that even had any gas been spilled it would have evaporated in the cool air during the twenty-minute period before he started the mower. Appellant is merely asking this Court to reweigh the evidence in regard to any gasoline spillage due to Mathew’s admission on cross-examination that he could have spilled some fuel. The trier of fact resolved this issue in favor of Mathew, finding that he exercised due care in fueling the mower, and it must remain undisturbed upon appeal. Appellant is again reminded that any conflicts in testimony when appeal from a negative judgment is taken must be resolved in favor of the appellee. Conard v. Mitchell Industries et al. (1973), 155 Ind.App. 110, 291 N.E.2d 577.

*1003 Appellant’s contention that Mathew should be held liable for the act of negligently starting the mower inside the garage is also without merit. It cannot seriously be contended that the evidence shows that Mathew acted other than a reasonably prudent man in pulling the mower out into an open area of the garage and starting it. The mower was a riding type that was of considerable weight and size. Garages are designed to permit the starting of motorized vehicles such as automobiles and are commonly used for such purpose. That this particular mower would catch fire at this particular time was not reasonably foreseeable. As one is not required to anticipate that which is unlikely to happen, the trial court did not err in determining that Mathew was not negligent in starting the mower inside the garage.

See : Geyer v. City of Logansport et al. (1977), 267 Ind. 334, 370 N.E.2d 333; Stayton v. Funkhouser (1970), 148 Ind.App. 75, 263 N.E.2d 764.

Appellant’s further allegation that Mathew negligently failed to push the flaming mower out of the garage area is refuted by the evidence that the machine was spewing gasoline and that he was afraid for his safety should the tank explode. Mathew therefore chose to leave and summon help from the local fire department. One who is confronted with a sudden emergency not of his own making is not chargeable with negligence if he acts according to his best judgment. Lovely v. Keele (1975), 166 Ind.App. 106, 333 N.E.2d 866. The sudden emergency doctrine requires the person so confronted to do that which an ordinary prudent man would do under like circumstances. Mathew’s course of action can be deemed an exercise of ordinary prudence. The law values human life above property. Greater risk of one’s person is justified to save life than is reasonable in protecting property. If Mathew had tried to push the riding mower ten feet into an open area the machine might have exploded and caused much graver damage to his person than was suffered by the destruction of the garage. Contrary to appellant’s position several jurisdictions have ruled that one may be deemed negligent in voluntarily risking life or serious injury for the purpose of saving mere property.

See: Flowers v. Slash Pine Electric Membership Corp. (1970), 122 Ga.App. 254, 176 S.E.2d 542; Holle v. Lake (1965), 194 Kan. 200, 398 P.2d 300; Ellmaker v. Goodyear Tire & Rubber Co. (Mo.App.1963), 372 S.W.2d 650; Morgan v. Treadwell (1938), 23 Tenn.App. 100, 126 S.W.2d 888.

Appellant also appeals the denial of its motion to reconsider, which spoke to the issue of causation. The trial court did not find that Mathew was negligent and thus did not consider the issue of proximate cause, and it is not a proper issue before this Court.

The judgment is not contrary to law and is therefore affirmed.

Affirmed.

RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. The instant case arises from a trip-and-fall at a McDonald's restaurant in Winona, Mississippi. The circuit court granted summary judgment in favor of defendants. The plaintiff appeals, arguing that summary judgment was not proper because (1) he established each element of a premises-liability claim, and (2) the defendants lost or destroyed key video evidence, which he argues forecloses the grant of summary judgment. The plaintiff has established several triable issues of fact. Accordingly, summary judgment was inappropriate, and the Court reverses and remands.

FACTS AND PROCEDURAL HISTORY

¶ 2. According to the plaintiff, on August 13, 2012, seventy-six-year-old John Renner ("Renner") was traveling from Jackson, Mississippi, to his home in St. Louis, Missouri. He, his wife, and two other family members stopped at a McDonald's in Winona around 9:30 a.m. After he received his order, Renner set his food down at a table and walked to the condiment station. Renner picked up some condiments. Before returning to his table, he thought one of the McDonald's employees spoke to him. Renner turned and faced the counter before realizing the employee was speaking to another customer. As Renner turned back around to return to his table, his left foot struck a protruding leg of a highchair, causing him to fall and suffer injury to his face and left shoulder. After the fall, Renner heard one of the McDonald's employees ask another what the highchair was doing there, and to move it.

¶ 3. Two and a half years later, Renner filed suit against McDonald's; Retzer Resources, Inc., the owner and operator of the Winona McDonald's; and Velencia Hubbard, the manager of the Winona McDonald's. During discovery, the defendants claimed that video footage of the fall no longer existed.

¶ 4. The defendants, Hubbard and Retzer, moved for summary judgment, arguing that Renner could not demonstrate the existence of any genuine issue of material fact that: (1) the highchair was a dangerous condition; (2) any alleged danger was hidden; or (3) defendants had actual or constructive knowledge of the alleged dangerous condition. Attached to the defendants' motion and the plaintiff's response were the depositions of Greta Siegel, John Renner, Renner's wife Sherlyn, Velencia Hubbard, and Hugh Ballard, an Information Technology (IT) employee of Retzer Resources.

¶ 5. Greta Siegel was an eyewitness to the fall. Siegel, originally from Winona and a former Dean of Students at a college in California, was a frequent patron of the Winona McDonald's. Siegel visited McDonald's often in order to use its Wi-Fi connection. On the morning of the fall, Siegel was seated in a booth catty-corner to the location of the accident. Siegel's attention was directed that way when she heard a loud noise. She saw Renner fall and land on the floor. She also saw Renner's left foot tangled in the leg of a highchair. Siegel then heard a McDonald's employee immediately instruct other McDonald's employees to move the highchairs away from that area.

¶ 6. Siegel testified that she was not surprised that Renner had tripped at the condiment station, because the highchairs are obscured from view behind a "half wall," and because the legs of the highchairs protrude out farther than the tops of the highchairs. When questioned about the visibility of the highchairs, Siegel testified that, "[w]hat is hidden is the way that bottom juts out, because as you walk up to the chairs, obviously, they are there, but what you wouldn't expect is for a ... piece of it to be sticking out." When asked about the particular morning of Renner's fall and whether the highchairs were sticking out into the aisle, Siegel confirmed that they were and described the placement of the chairs as a "big hazard."

¶ 7. Siegel previously had seen other McDonald's customers bump into the highchairs at the same location where Renner fell. Siegel testified that she had seen approximately three customers stumble against the chairs and had seen other customers accidently kick the chairs. She described the customers' reactions to the chairs as being confused about what they had kicked, "because the top seems to be what you would hit first ... [b]ut with that bottom sticking out, it is something that people hit and they don't realize what they are kicking."

¶ 8. Siegel had complained several times about the location of the highchairs to a manager and to other McDonald's employees prior to this accident. Siegel testified that after complaining about the chairs, the employees would move them away from the corner, but still leave them on the same wall. However, Siegel also testified that, since the accident, the chairs remain in the same location.

¶ 9. Velencia Hubbard, the shift manager of McDonald's at the time of the accident, did not dispute any of Siegel's testimony. She opined that she thought the chairs were properly stored and did not believe they were out of place. Throughout her deposition testimony, Hubbard testified the she did not know or did not remember key facts. For example, Hubbard testified that she was not sure whether the legs of the highchairs protruded into the aisle at the time of the accident. Hubbard testified that she saw Renner fall and saw that his feet were caught in the highchair. She remembered speaking with the Renners, completing an incident report, and calling the insurance company, which was standard procedure after a slip and fall. Valencia testified that the placement of the chairs did not change after Renner's fall, and that they always remained in the same location. Valencia also testified that there was a video recording of Renner's fall, though she could not remember if she had ever seen it.

¶ 10. Sherlyn and Renner both provided affidavits relating events after the accident. Sherlyn and Renner testified that, two days after the fall, a risk management company for McDonald's called to check on Renner's condition. Sherlyn spoke with a woman from the company, who told Sherlyn that McDonald's had provided them with videotapes of the incident and that they would review the tapes to see what happened. Renner testified that about four to five weeks later, he called an "800 number" on a McDonald's incident form that he was provided. Renner spoke with a representative who told him that security tapes would have to be reviewed before they could speak about the accident with Renner. Another four to five weeks later, Renner called again. He was told the tapes had still not been reviewed. No video footage was produced per requests in discovery.

¶ 11. Hugh Ballard, the IT employee in charge of video surveillance at the Winona McDonald's, testified that a video camera faces the location where Renner fell. The video camera is motion-activated and does not record constantly. Ballard testified that the recordings are kept temporarily on a computer hard drive for approximately sixty-three to sixty-four days, depending on how quickly the hard drive fills up. The recordings are then recorded over. Ballard testified that he received a request from another Retzer Resources employee on October 17, 2013-sixty-five days after the accident-to preserve the video footage of Renner's fall. Ballard testified that he "imagined" that he tried to retrieve the footage, though he could not remember. Ballard testified that the video was gone. He had no way of knowing whether the footage was recorded over or whether it ever existed, although there was no indication that the camera was not operational on the day of Renner's fall.

¶ 12. Renner responded to the defendant's motion for summary judgment, arguing that the testimony of each of the five witnesses established that McDonald's was either directly negligent in causing his fall, or McDonald's had actual or constructive knowledge of the alleged dangerous condition. Further, Renner argued that, because of the unfavorable presumption that attaches to evidence spoliation, summary judgment would be inappropriate.

¶ 13. On August 2, 2016, the trial court issued its opinion and final judgment granting summary judgment in favor of the defendants, Hubbard and Retzer. The trial court found that Renner was an invitee of McDonald's, and therefore, McDonald's owed a duty to keep the premises reasonably safe and to warn only when there was hidden danger, not in plain and open view. The trial court found that "[t]he presence of a high chair in a restaurant like McDonald's is clearly a 'normal' and 'usual' condition that an invitee could 'expect to encounter.' Therefore, McDonald's cannot be held liable for Mr. Renner's injuries in this case." The trial court found that Renner had failed to produce any evidence that any McDonald's employee had placed the high chair in Renner's path or had any actual or constructive knowledge that the highchair posed a danger to Renner. The trial court's opinion made no reference to the missing video evidence. Renner timely appealed and raises two issues: (1) whether summary judgment was granted erroneously because Renner had proved each element of his premises-liability claim, and (2) whether the defendants' loss or destruction of key video evidence prohibited the grant of summary judgment.

DISCUSSION

¶ 14. "Summary judgment shall be rendered if the 'pleadings, depositions, answers to interrogatories and admissions on file, together with the 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.' " Miss. R. Civ. P. 56(c). "Summary judgment 'is appropriate when the non-moving party has failed to "make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." ' " Karpinsky v. American Nat'l Ins. Co. , 109 So.3d 84 , 88 (Miss. 2013) (citing Buckel v. Chaney , 47 So.3d 148 , 153 (Miss. 2010). We review the grant of summary judgment de novo and will view evidence "in the light most favorable to the party against whom the motion has been made." Id. (citing Pratt v. Gulfport-Biloxi Reg'l Airport Auth. , 97 So.3d 68 , 71 (Miss. 2012) ).

I. Premises-Liability Claim

¶ 15. Renner argues that the trial court erred in granting summary judgment because he proved each element of his premises-liability claim. The parties do not dispute that Renner was an invitee of McDonald's. "A landowner owes an invitee the duty 'to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not in plain and open view." Mayfield v. The Hairbender , 903 So.2d 733 , 737 (Miss. 2005) (citations omitted). To recover in a trip-and-fall case, a plaintiff must "(1) show that some negligent act of the defendant caused his injury; or (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition." Anderson v. B.H. Acquisition, Inc. , 771 So.2d 914 , 918 (Miss. 2000) (citing Downs v. Choo , 656 So.2d 84 , 86 (Miss. 1995) ).

¶ 16. Renner established sufficient facts, which, if believed, would defeat a motion for summary judgment. It would be a question for the finder of fact whether the defendants had actual knowledge of the alleged dangerous condition and failed to warn Renner, or whether the defendants had constructive knowledge of the alleged dangerous condition (another issue for a jury). Renner offered the deposition testimony of Siegel, who testified that the legs of the highchairs protrude into the aisle and are obscured from view behind a "half wall." Siegel claimed personally to have witnessed at least three customers bump into or kick the highchairs. Siegel testified that she repeatedly had alerted several McDonald's employees about her concerns regarding the alleged hidden nature and dangerous condition of the highchairs. This testimony regarding McDonald's knowledge was undisputed by Valencia Hubbard or any other witness.

¶ 17. The defendants take issue with Siegel's testimony and affidavit, arguing that she offered inadmissible opinions. Mississippi Rule of Evidence 701 sets forth the rules regarding lay witness opinion: "If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702," which sets forth the rules for expert testimony. The Advisory Committee Note to the rule states that Rule 701 favors the admission of lay opinion when the opinion is based on first-hand knowledge or observation, and when the opinion is helpful in resolving the issues. The defendants' argument is without merit. Siegel's testimony and affidavit are based wholly on her own observations, and they certainly are helpful in deciding the issues of Renner's premises-liability claim.

¶ 18. The defendants also argue that Siegel offered inadmissable expert testimony because she opined that the highchair's design constituted a hazard. This argument is without merit. Siegel simply testified that the she physically saw that the legs of the highchairs protruded into the aisle and that several customers had bumped into or kicked the highchairs. She stated that, in her opinion, the highchairs were a "big hazard" because they were obscured behind a "half wall," and the legs jutted out farther than the tops of the highchairs. Siegel did not offer a scientific or technical opinion as to the highchair's design, but rather testified about her observations of the highchairs based on the many hours she has spent patronizing the Winona McDonald's.

¶ 19. The trial court's opinion fails to account for the testimony of Siegel and concluded that, because highchairs normally are present in restaurants, an invitee could expect to encounter them. The trial judge's opinion erroneously supplanted the facts in the record with his own opinion regarding the location of the highchairs. This is a role for jurors. See Prescott v. Leaf River Forest Prods., Inc ., 740 So.2d 301 , 309 (Miss. 1999) ("The trial court's function on a Rule 56 motion for summary judgment is not to resolve disputed factual issues, but rather to determine whether issues of fact exist to be tried.")

¶ 20. At the very least, genuine issues of material fact remain for trial. Siegel testified that she did not know of any person moving the highchairs at any time before the fall. Hubbard testified that she could not remember whether the highchairs had been moved. Further, Hubbard testified that Renner was walking from the counter with a tray in his hands, while the Renners and Siegel all testified that Renner did not have a tray, and that he was walking from the condiment station to the dining area. The number of highchairs stored behind the "half wall" also is in dispute, as Hubbard testified that there were only two, while Siegel testified that there were five or six.

¶ 21. "The moving party has the burden of demonstrating that [no] genuine issue of material fact[s] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact." Duckworth v. Warren , 10 So.3d 433 , 437 (Miss. 2009) (quoting One South, Inc. v. Hollowell , 963 So.2d 1156 , 1160 (Miss. 2007) ) (citation omitted). Renner produced sufficient testimonial evidence establishing that genuine issues of material fact exist, and Renner should be given the benefit of every reasonable doubt . Ladnier v. Hester , 98 So.3d 1025 , 1028 (Miss. 2012) (citation omitted) (emphasis added). In any case "[w]here doubt exists as to whether there is a genuine issue of material fact, the trial judge should err on the side of denying the motion and permitting a full trial on the merits." Prescott , 740 So.2d at 309 . It was error for the trial court to grant summary judgment in favor of the defendants because triable issues of fact remain.

II. Spoliation of Video Evidence

¶ 22. Renner argues that the defendants' loss or destruction of video evidence forbids summary judgment. An examination of the record reveals that this issue has not been fully developed in discovery. The facts, as they are available now, indicate only that the IT employee claims no video of the fall exists. Whether the risk management company has or had the video is in dispute. If further discovery indicates that spoliation occurred, the trial court should approve a spoliation jury instruction, if appropriate. See Copeland v. City of Jackson , 548 So.2d 970 , 973 (Miss. 1989) ("[J]ury instructions should only be granted where there is evidence presented to support the giving of those instructions.")

¶ 23. This Court has held that where there is proof of spoliation, the nonoffending party is entitled to a "spoliation inference." Dowdle Butane Gas Co., Inc. v. Moore , 831 So.2d 1124 , 1127 (Miss. 2002) (citing Bott v. Wood , 56 Miss. 136 (1878) ). "The inference entitles the non-offending party to an instruction that the jury may infer that spoliated evidence is unfavorable to the offending party." Id. (citing DeLaughter v. Lawrence County Hosp. , 601 So.2d 818 , 822 (Miss. 1992) ). In other words, the jury is not required to draw an adverse inference that the evidence would have been unfavorable, but the innocent party is entitled to an instruction permitting the jury to draw a negative inference from spoliated evidence. See Kronisch v. U.S. , 150 F.3d 112 , 126 (2d Cir. 1998). To prove that spoliation occurred, the innocent litigant is not required to show fraudulent intent on the part of the spoliator. Thomas v. Isle of Capri Casino , 781 So.2d 125 , 133 (Miss. 2001). Even where evidence is unavailable due to negligence, an inference arises that the evidence would have been unfavorable, and the jury should be so instructed. Id. (citation omitted). Accordingly, if the evidence reveals that the video was lost intentionally or negligently, Renner is entitled to a spoliation jury instruction.

CONCLUSION

¶ 24. The trial court erroneously granted summary judgment because triable issues of fact remain. The Court reverses the judgment of the Washington County Circuit Court and remands for proceedings consistent with this opinion.

¶ 25. REVERSED AND REMANDED .

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and remitted to that court for consideration of the facts and of other issues not previously addressed.

The record contains some evidence tending to show that defendant had constructive notice of a dangerous condition which allegedly caused injuries to its customer. There was testimony that the injured plaintiff, while shopping in defendant’s store, fell backward, did not come into contact with the shelves, but hit her head directly on the floor where “a lot of broken jars” of baby food lay; that the baby food was “dirty and messy”; that a witness in the immediate vicinity of the accident did not hear any jars falling from the shelves or otherwise breaking during the 15 or 20 minutes prior to the accident; and that the aisle had not been cleaned or inspected for at least 50 minutes prior to the accident — indeed, some evidence was adduced that it was at least two hours.

Viewing the evidence in a light most favorable to the plaintiffs and according plaintiffs the benefit of every reasonable inference (see, Sagorsky v Malyon, 307 NY 584), it cannot be said, as a matter of law, that the circumstantial evidence was insufficient to permit the jury to draw the necessary inference that a slippery condition was created by jars of baby food which had fallen and broken a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy the condition. (Cf. Cameron v Bohack Co., 27 AD2d 362, 365; Torregrossa v Bohack Corp., 81 AD2d 884; Wheeler v Deutch, 242 App Div 641.) Plaintiffs having made out a prima facie case, .it was error to dismiss the complaint. If the jury verdict be deemed by the Appellate Division to be against the weight of the evidence, that court’s power is limited to ordering a new trial. (Sagorsky v Malyon, supra; see also, Imbrey v Prudential Ins. Co., 286 NY 434, 440-441.)

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and case remitted to the Appellate Division, Second *627Department, for further proceedings in accordance with the memorandum herein.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the complaint dismissed and the certified question answered in the negative.

Plaintiff was injured when he fell on defendant’s front entrance steps. He testified that as he descended the upper level of steps he slipped on the third step and that while he was in midair he observed a piece of white, waxy paper next to his left foot. He alleges that this paper came from the concession stand that defendant had contracted to have present and which was located on the plaza separating the two tiers of steps and that defendant was negligent insofar as its employees failed to discover and remove the paper before he fell on it. The case was submitted to the jury on the theory that defendant had either actual or constructive notice of the dangerous condition presented by the paper on the steps. The jury found against defendant on the issue of liability.* A divided Appellate Division affirmed and granted defendant leave to appeal on a certified question.

There is no evidence in the record that defendant had actual notice of the paper and the case should not have gone to the jury on that theory. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it (Negri v Stop & Shop, 65 NY2d 625, 626; Lewis v Metropolitan Transp. Auth., *83864 NY2d 670, affg on opn at 99 AD2d 246, 249). The record contains no evidence that anyone, including plaintiff, observed the piece of white paper prior to the accident. Nor did he describe the paper as being dirty or worn, which would have provided some indication that it had been present for some period of time (cf. Negri v Stop & Shop, supra, at p 626 [broken baby food jars were dirty]). Thus, on the evidence presented, the piece of paper that caused plaintiff’s fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation.

Contrary to plaintiff’s contentions, neither a general awareness that litter or some other dangerous condition may be present (see, Bogart v Woolworth Co., 24 NY2d 936, revg 31 AD2d 685) nor the fact that plaintiff observed other papers on another portion of the steps approximately 10 minutes before his fall is legally sufficient to charge defendant with constructive notice of the paper he fell on. Gramm v State of New York (28 AD2d 787, affd on majority opn below 21 NY2d 1025) and Kelsey v Port Auth. (52 AD2d 801) are not to the contrary. In both cases constructive notice was established by other evidence and the issue was whether plaintiffs had presented sufficient evidence on the issue of causation insofar as both plaintiffs failed to specify which step they had fallen on and what condition — wear, wetness or litter — had caused them to slip. In each case, the court concluded that plaintiff had presented a prima facie case because a fall was a natural and probable consequence of the conditions present on the stairs. The defect in plaintiff’s case here, however, is not an inability to prove the causation element of his fall but the lack of evidence establishing constructive notice of the particular condition that caused his fall.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.

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 *600 assistance 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 *601 argues 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 *602 ing 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 *603 agency). 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 *604 did 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 *605 of 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); *606 and 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 *607 person 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 *608 degree 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.

*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.

OPINION

GOLDBERG, Justice.

This case is before the court on the appeal of Joanne Sheeley (Sheeley) from the directed verdict entered against her in the underlying medical malpractice action. Specifically Sheeley asserts that the trial justice erred in excluding the testimony of her expert witness, which exclusion resulted in the entry of the directed verdict. 1 For the reasons set *163 forth below, we hold that the trial justice erred in excluding the testimony and reverse the judgment from which the appeal was taken. Furthermore, we take this opportunity to reexamine the proper standard of care to be applied in medical malpractice cases and, in so doing, abandon the “similar locality” rule, which previously governed the admissibility of expert testimony in such actions. The facts insofar as are pertinent to this appeal are as follows.

On May 19, 1987, Sheeley delivered a healthy child at Memorial Hospital (hospital) in Pawtucket, Rhode Island. At the time of the birth Sheeley was under the care of Mary Ryder, M.D. (Dr. Ryder), then a second-year family practice resident. Brian Jack, M.D. (Dr. Jack), was the faculty member responsible for the supervision of Dr. Ryder.

In conjunction with the delivery process Dr. Ryder performed an episiotomy on Shee-ley. This procedure entails a cut into the perineum of the mother, the purpose being to prevent tearing during the delivery. After the baby had been delivered, Dr. Ryder performed a repair of the episiotomy, stitching the incision previously made into the perineum.

After her discharge from the hospital Sheeley developed complications in the area in which the episiotomy had been performed and ultimately developed a rectovaginal fistula. This condition, which consists of an opening between the vagina and the rectum, required corrective surgery. Notwithstanding the surgery, however, Sheeley continued to experience pain and discomfort at the site of the episiotomy. Sheeley, together with her husband Mark Sheeley, then filed suit against the hospital, Dr. Ryder, and Dr. Jack (collectively defendants), alleging that defendants were negligent in performing the epi-siotomy incision and repairing the same properly. 2

At the trial on the malpractice action, Sheeley sought to introduce the expert medical testimony of Stanley D. Leslie, M.D. (Dr. Leslie), a board certified obstetrician/gynecologist (OB/GYN). Doctor Leslie planned to testify about Dr. Ryder’s alleged malpractice and the applicable standard of care as it relates to the performance of an episiotomy. The defendants objected and filed a motion in limine to exclude the testimony, arguing that Dr. Leslie, as an OB/GYN, was not qualified under G.L.1956 § 9-19-41 3 to testify against a family practice resident who was performing obstetric and gynecological care. A hearing on the motion was conducted, at which time it was disclosed that Dr. Leslie had been board certified in obstetrics and gynecology since 1961 and recertified in 1979. Doctor Leslie testified that board certification represents a level of achievement of skill and knowledge as established by a national standard in which the standard of care is uniform throughout the medical specialty. Doctor Leslie is currently a clinical professor of obstetrics and gynecology at the Hill-Science Center, State University, College of Medicine in Syracuse. He is a member of the New York Statewide Professional Standards Review Council, which reviews disputes between doctors and hospitals regarding diagnosis and management, and the Credentials and Certification Committee at the Crouse-Irving Hospital, where his responsibilities include drafting standards for family practice physicians. It was further revealed that Dr. Leslie has in the course of his career delivered approximately 4,000 babies and that even though he has been retired from the practice of obstetrics since 1975, he has maintained his familiarity with *164 the standards and practices in the field of obstetrics through weekly conferences, active obstetric work, professorial responsibilities, and continuing education.

Nevertheless, relying on Soares v. Vestal, 632 A.2d 647 (R.I.1993), defendants maintained that § 9-19-41 requires .a testifying expert to be in the same medical field as the defendant physician. In Soares this court upheld the trial justice’s decision to exclude the testimony of the plaintiffs expert witness in a situation in which the expert was board certified in neurology and internal medicine, and the underlying malpractice action involved a family practitioner performing emergency medicine. 632 A.2d at 648. Agreeing that Soares was determinative, the trial justice here granted defendants’ motion, stating: “I fail to see where this case is distinguishable from Soares. I don’t quarrel with the doctor’s background and qualifications. I think he’s the inappropriate expert to testify in this ease.” ■ Sheeley did not have any other experts prepared to testify, nor was she able to procure one within the two-day period allowed by the trial justice. Consequently defendants’ motion for a directed verdict was granted. This appeal ensued.

On appeal Sheeley argues that the trial justice’s ruling constitutes an abuse of discretion and is clearly wrong because Dr. Leslie was amply qualified to testify concerning the alleged malpractice. The defendants respond by arguing that Sheeley’s appeal should be summarily dismissed for her failure to make an adequate offer of proof. Furthermore defendants assert that Shee-ley’s expert is not competent to offer expert testimony on the appropriate standard of care because he has more specialized training than Dr. Ryder and because he lacks any recent experience in providing obstetric care.

At the outset we note that there is no merit to defendants’ contention that Shee-ley’s failure to make an offer of proof precludes this court from reviewing the trial justice’s decision. Rule 103(a)(2) of the Rhode Island Rules of Evidence clearly states that in cases in which the ruling appealed from is one excluding evidence, “the substance of the evidence [had to be] made known to the court by offer or was apparent from the context within which questions were asked” before its exclusion can serve as a basis of error. (Emphasis added.) If, however, the nature of the evidence offered clearly describes the relevance and competence of the offered evidence, no such offer of proof is necessary. See Hudson v. Napolitano, 576 A.2d 187, 188-89 (R.I.1990). In a medical malpractice case expert testimony is an essential requirement in proving the standard of care applicable to the defendant, “unless the lack of care is so obvious as to be within the layman’s common knowledge.” Richardson v. Fuchs, 523 A.2d 445, 448 (R.I. 1987). Accordingly we are of the opinion that in this instance, the nature of the evidence offered clearly evinces its relevance and competence such that an offer of proof was not necessary. That said, we turn to the specific issue on appeal.

“The determination of the competency of an expert witness to testify is within the discretion of the trial justice.” Id. This court will not disturb that decision in the absence of clear error or abuse. Id. In fairness to the trial justice, we note that in making her determination with respect to the admissibility of the expert’s testimony, she was without the benefit of our decisions in Marshall v. Medical Associates of Rhode Island, Inc., 677 A.2d 425 (R.I.1996), and more importantly Buja v. Morningstar, 688 A.2d 817 (R.I.1997), which have distinguished Soares and limited its holding to situations in which the physician-expert lacks knowledge, skill, experience, or education in the same medical field as the alleged malpractice. Nevertheless, after a review of these eases, we find it clear that the trial justice did in fact abuse her discretion and commit reversible error in excluding the testimony of Dr. Leslie.

In Buja the plaintiffs brought a medical malpractice action against their family practitioners when their child suffered severe medical complications, including cerebral palsy and mental retardation, after having been deprived of oxygen just prior to birth. Buja, 688 A.2d at 818. At trial, the plaintiffs sought to introduce testimony of a board certified obstetrician. The trial justice, however, excluded the testimony and stated that *165 testimony concerning the standard of care required of a family practitioner practicing obstetrics had to be introduced by an expert in family medicine, not an expert in OB/GYN. Id. Relying on our previous holding in Marshall, this court reversed the trial justice and stated that even though the proposed expert did not practice in the same specialty as the defendants, he clearly had the prerequisite “knowledge, skill, experience, training or education * * * in the field of the alleged malpractice.” Id. at 819 (quoting § 9-19-41 and citing Marshall, 677 A.2d at 427). The Buja court held that nothing in the language of § 9-19-41 requires the expert to practice in the same specialty as the defendant. 688 A.2d at 819. “Such an additional requirement is unnecessary and is in contravention to the General Assembly’s clear intentions, as expressed in § 9-19-41.” 688 A.2d at 819. In view of this holding and the striking factual similarities of the instant matter to Buja, there can be little doubt that we must reverse the decision of the trial justice and remand the case for a new trial.

Yet in spite of our holdings in Buja and Marshall, defendants continue to insist that Dr. Leslie is not qualified to testify. In essence defendants argue that Dr. Leslie is overqualified, stating that a board certified OB/GYN does not possess the same knowledge, skill, experience, training, or education as a second-year family practice resident performing obstetrics in Rhode Island. Furthermore defendants argue that because Dr. Leslie has not actually practiced obstetrics since 1976, his experience in providing obstetrical care is “clearly outdated” and he is therefore not competent to testify concerning the appropriate standard of care as it applied to the performance .of an episiotomy, and the repair of the same—even while they acknowledge that the standard of care relative to the procedures involved in the alleged malpractice have changed little over the last thirty years. Finally defendants assert that pursuant to the limitations of the “similar locality” rule, Dr. Leslie must be disqualified because he lacks any direct knowledge about the applicable standard of care for a family practice resident providing obstetric care in Rhode Island. The defendants suggest that Dr. Leslie, although he has attended national conferences and studied medical journals and treatises in addition to his national certification, is not qualified to testify about the applicable local standard of care. In light of these arguments and with a view toward preventing any further confusion regarding the necessary qualifications of an expert testifying about the proper standard of care in medical malpractice actions, we take this opportunity to revisit our position on the appropriate standard of care.

For over three-quarters of a century this court has subscribed to the principle “that when a physician undertakes to treat or diagnose a patient, he or she is under a duty to exercise ‘the same degree of diligence and skill which is commonly possessed by other members of the profession who are engaged in the same type of practice in similar localities having due regard for the state of scientific knowledge at the time of treatment.’” DiFranco v. Klein, 657 A.2d 145, 148 (R.I.1995); see also Schenck v. Roger Williams General Hospital, 119 R.I. 510, 515, 382 A.2d 514, 517 (1977); Marshall v. Tomaselli, 118 R.I. 190, 196, 372 A.2d 1280, 1284 (1977); Wilkinson v, Vesey, 110 R.I. 606, 613, 295 A.2d 676, 682 (1972); Bigney v. Fisher, 26 R.I. 402, 403, 59 A. 72, 72 (1904). This “same or similar locality” rule is a somewhat expanded version of the “strict locality” rule, which requires that the expert testifying be from the same community as the defendant. See Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245, 248 (1975); see, e.g., Moon v. United States, 512 F.Supp. 140, 144 (D.Nev.1981); Hoagland v. Kamp, 155 A.D.2d 148, 552 N.Y.S.2d 978, 979 (1990). The rationale underlying the development of the “strict locality” rule was a recognition that opportunities, experience,, and conditions may differ between densely and sparsely populated communities. See Shilkret, 349 A.2d at 248-49; 61 Am. Jur.2d, Physicians, Surgeons and Other Healers, § 218 (1981).

This restrictive rule, however, soon came under attack in that it legitimized a low standard of care in certain smaller communities and that it also failed to address or to compensate -for the potential so-called conspiracy of silence in a plaintiff’s locality that *166 would preclude any possibility of obtaining expert testimony. See Shilkret, 349 A.2d at 249. Furthermore, as this court noted in Wilkinson, the locality rule is somewhat of an anachronism in view of “[m]odern systems of transportation and communication.” Wilkinson, 110 R.I. at 613 n. 5, 295 A.2d at 682 n. 5. Thus many jurisdictions, including our own, adopted the “same or similar locality” rule, which allows for experts from similarly situated communities to testify concerning the appropriate standard of care. Id.; see, e.g., Portillo v. United States, 816 F.Supp. 444, 446 (W.D.Tex.1993); Priest v. Lindig, 583 P.2d 173, 176 (Alaska 1978); Tucker v. Meis, 127 N.C.App. 197, 487 S.E.2d 827, 829 (1997). Nevertheless, even with this somewhat expanded view, the medical malpractice bar has continually urged a narrow application of the rule, arguing the need for similar, if not identical, education, training, and experience. See Buja, 688 A.2d at 818 (defense counsel argued obstetrician not qualified to testify concerning standard of care required of family practitioner performing obstetrical procedures); Marshall, 677 A.2d at 426-27 (defense counsel argued physician skilled in pediatries and family medicine not qualified to testify against physician certified in emergency and internal medicine when the alleged malpractice concerned treatment of animal bite). The obvious result of such an application, however, is to reduce the pool of qualified experts to its lowest common denominator. This is a consequence that we have never intended.

The appropriate standard of care to be utilized in any given procedure should not be compartmentalized by a physician’s area of professional specialization or certification. On the contrary, we believe the focus in any medical malpractice case should be the procedure performed and the question of whether it was executed in conformity with the recognized standard of care, the primary concern being whether the treatment was administered in a reasonable manner. Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from that standard. The resources available to a physician, his or her specific area of practice, or the length of time he or she has been practicing are all issues that should be considered by the trial justice in making his or her decision regarding the qualification of an expert. No one issue, however, should be determinative. Furthermore, except in extreme cases, a witness who has obtained board certification in a particular specialty related to the procedure in question, especially when that board certification reflects a national standard of training and qualification, should be presumptively qualified to render an opinion. See Shilkret, 349 A.2d at 253; see also Cheek v. Domingo, 628 F.Supp. 149, 152 (D.Virgin Islands 1986) (holding specialist may testify regarding standard of care of general practitioner provided proposed witness possesses requisite knowledge).

This court is of the opinion that whatever geographical impediments may previously have justified the need for a “similar locality” analysis are no longer applicable in view of the present-day realities of the medical profession. As the Shilkret court observed:

“The modern physician bears little resemblance to his predecessors. As we have indicated at length, the medical schools of yesterday could not possibly compare with the accredited institutions of today, many of which are associated with teaching hospitals. But the contrast merely begins at that point in the medical career: vastly superior postgraduate training, the dynamic impact of modem communications and transportation, the proliferation of medical literature, frequent seminars and conferences on a variety of professional subjects, and the growing availability of modem clinical facilities are but some of the developments in the medical profession which combine to produce contemporary standards that are not only much higher than they were just a few short years ago, but are also national in scope.

“In sum, the traditional locality rules no longer fit the present-day medical malpractice case.” Shilkret, 349 A.2d at 252.

We agree. Furthermore, we note that in enacting § 9-19-41, the Legislature failed to *167 employ any reference to the “similar locality” rule. We conclude that this omission was deliberate and constitutes a recognition of the national approach to the delivery of medical services, especially in the urban centers of this country, of which Rhode Island is certainly one.

Accordingly we join the growing number of jurisdictions that have repudiated the “same or similar” communities test in favor of a national standard and hold that a physician is under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances. 4 In this case the alleged malpractice occurred in the field of obstetrics and involved a procedure and attendant standard of care that has remained constant for over thirty years. Doctor Leslie, as a board certified OB/GYN with over thirty years of experience, a clinical professor of obstetrics and gynecology at a major New York hospital, and a member of the New York Statewide Professional Standards Review Council, is undoubtedly qualified to testify regarding the appropriate standard of care.

For the foregoing reasons the plaintiffs appeal is sustained, and the judgment appealed from is reversed. The papers in the case are remanded to the Superior Court with our decision endorsed thereon for a new trial in accordance with this opinion.

OPINION

SHARON G. LEE, J.,

delivered the opinion of the Court,

*532In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn.Code Ann. § 29-26-115 (2000 & Supp.2010). Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define “similar community,” nor does it provide guidance as to how a community is determined to be “similar” to the defendant’s community. In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court’s exclusion of the claimant’s two proffered medical experts under the locality rule was error. The trial court’s grant of summary judgment is affirmed in part and vacated in part.

Factual and Procedural History

Dr. Robin Williams, a general surgeon, performed abdominal surgery on Donna Faye Shipley in January of 2001. Dr. Williams removed Mrs. Shipley’s colon and a portion of her small intestine.1 On Saturday, November 17, 2001, Mrs. Shipley called Dr. Williams complaining of abdominal pain and a sore throat. Dr. Williams told her to call and make an appointment for the following Tuesday and to call her back sooner if the pain worsened or Mrs. Shipley developed a fever. Mrs. Shipley called the next day, November 18, 2001, complaining of continued abdominal pain and a fever of 102 degrees. Dr. Williamsi told her to go to the emergency room, called the hospital to inform the emergency room staff that Mrs. Shipley was coming in, and requested that she be seen by an emergency room physician.

Dr. Leonard Walker saw Mrs. Shipley in the emergency room of Summit Medical Center in Nashville on Sunday, November 18, 2001. Dr. Walker took Mrs. Shipley’s medical history, examined her, and ordered tests including a complete blood count, urinalysis, chest x-ray, serum amylase, blood alcohol test, and computed tomography (“CT”) scan to check for intra-abdominal abscess or gallstones. The tests revealed an elevated white blood cell count of approximately 21,000, low blood pressure, and a high pulse rate. Dr. Walker believed Mrs. Shipley was dehydrated and ordered an intravenous (“I.V.”) bag of fluid. Dr. Walker diagnosed her with abdominal pain of unclear origin and dehydration.

While Mrs. Shipley was still being treated at the emergency room, Dr. Walker called Dr. Williams and provided her with information about Mrs. Shipley’s medical condition and test results. In his deposition, Dr. Walker testified as follows about that conversation:

I told her [Dr. Williams] I had a patient of hers here that I thought needed to be reexamined because she had abdominal pain that I couldn’t explain. And I gave her all the patient’s lab results, most importantly, her CT results, asked if she could be rechecked the next day. Based on her lab results and elevated white count, Dr. Williams thought she might have been significantly dehydrated and *533asked for [a] second bag of I.V. fluid and said she’d, be glad to see her in the office.

Dr. Walker also stated that Mrs. Shipley “needed at least to be reexamined” and that it was his “understanding that she [Mrs. Shipley] would be seen by Dr. Williams the next day.” Dr. Walker reaffirmed in his affidavit that “it was agreed that Ms. Shipley would not be admitted to the hospital, but would seek follow-up care from Dr. Williams” and that “[i]t is my understanding that Ms. Shipley was going to see Dr. Williams the next day.”

Dr. Williams agreed in her deposition that “it was decided to hydrate her up and she would follow up in my office.” Dr. Williams noted that the discharge instructions given to Mrs. Shipley told her to “call Dr. Williams in the AM to arrange recheck and further care.” Dr. Williams said that it was her understanding that she would see Mrs. Shipley in her office on Tuesday, November 20, because Dr. Williams was not ordinarily in her office on Mondays. Later in her deposition, however, Dr. Williams testified that she understood that her medical assistant had arranged for Mrs. Shipley to be seen by her primary care physician, Dr. Lisa Long, on Wednesday, November 21.2 Dr. Williams admitted that a white blood cell count of 21,000 in a patient with Mrs. Shipley’s medical history was “a major concern to the physician caring for her.”

Mrs. Shipley alleges in her complaint that she called Dr. Williams’ office several times to try to get follow-up care, but she was informed that Dr. Williams would not see her because it was a non-surgieal matter. On the evening of November 21, 2001, Mrs. Shipley returned to the emergency room and was admitted in critical condition with a diagnosis of acute sepsis, pneumonia, hypotension, acute renal failure, and abdominal pain. In the course of her subsequent treatment, Mrs. Shipley suffered a debilitating stroke and other alleged permanent damage.

Mrs. Shipley filed this action against Drs. Walker and Williams and the hospital, alleging medical negligence in failure to admit her to the hospital on November 18, failure to properly assess and diagnose her condition, and failure to provide necessary medical treatment, including adequate follow-up care. The hospital and Dr. Walker filed motions for summary judgment that were unopposed by Mrs. Shipley. The trial court granted the hospital and Dr. Walker summary judgment and those rulings have not been appealed.

The remaining defendant, Dr. Williams, moved for partial summary judgment on the claim of negligent failure to admit to the hospital. In support of her motion, Dr. Williams relied upon the testimony of Mrs. Shipley’s two medical experts — Dr. Stephen K. Rerych, a board-certified general surgeon who practices in Asheville, North Carolina, and Dr. Ronald A. Shaw, a physician board-certified in emergency medicine who practices in the Montgomery, Alabama, area. Drs. Rerych and Shaw testified to the effect that the treatment provided by Dr. Walker at the emergency room did not necessarily fall below the standard of care and that the appropriate standard of care, given Mrs. Shipley’s medical condition, required either admission to the hospital on November 18 or a follow-up appointment and recheck the *534next day after her release on November 18. The trial court granted partial summary judgment to Dr. Williams on the failure to admit claim based on the testimony of Drs. Rerych and Shaw that the failure to admit did not necessarily result in a breach of the standard of care under the circumstances presented.

Dr. Shaw further testified that it is the responsibility of the consulting physician, in this case Dr. Williams, to make the decision whether to admit a patient and how to provide follow-up rechecking and medical care after consulting with the emergency room physician. Dr. Shaw stated that emergency room physicians generally suggest and assume that patients with abdominal pain are rechecked within 24 hours of discharge because of the possibility of the patient’s condition rapidly worsening. Dr. Shaw testified that under Mrs. Shipley’s circumstances, “it was incumbent on Dr. Williams to either examine the patient or — in her office or make some arrangements to be seen somewhere.”

Dr. Rerych testified that under the circumstances presented here, “the general surgeon’s follow-up is absolutely imperative, and the follow-up in this case should have been done within 24 hours, no question about that.” Dr. Rerych stated that regarding the “general surgeon, who is now consulted and who has recommended that this patient come to the emergency room, then it’s the general surgeon’s responsibility to either admit the patient that day or see the patient the following day.” Dr. Rerych testified that given Mrs. Ship-ley’s history of inflammatory bowel disease and surgery, “we must make sure that it isn’t a problem with the bowel” and that there was a “need to have extreme vigilance, and you need to follow up on a patient like this.” Dr. Rerych concluded that “the bottom line was this patient should have been seen 24 hours after the discharge from the emergency room,” and that “clearly, in this case, there is a deviation from the standard of care.”

On December 1, 2006, Dr. Williams moved for disqualification of Drs. Rerych and Shaw and for full summary judgment. These motions were filed just over a month before trial and after the expiration of the expert disclosure deadline.3 The trial court held that Drs. Rerych and Shaw “do not meet the requirements of Tenn. Code Ann. § 29-26-115 and will not substantially assist the trier of fact pursuant to Tenn. R. Evid. 702 and 703.” Specifically, the trial court ruled that Dr. Rerych “did not demonstrate familiarity with the standard of care for general surgeons in Nashville ... Nor did he demonstrate that Asheville, North Carolina is a similar community to Nashville, Tennessee.” As to Dr. Shaw, the trial court held that he “does not practice in a specialty that is relevant to the standard of care issues in this case.” The trial court excluded their testimony, granted Dr. Williams summary judgment, and dismissed Mrs. Shipley’s case.

The Court of Appeals upheld the trial court’s decision to disqualify Mrs. Shipley’s medical experts, but, noting that “Dr. Williams ... offered no proof to negate Mrs. Shipley’s remaining negligence claims whatsoever, but moved for summary judgment based solely on the inadmissibility of Mrs. Shipley’s experts,” reversed summary judgment upon its finding that Dr. Williams failed to affirmatively negate an essential element of Mrs. Shipley’s claims or show that she could not prove an essen*535tial element of the claim at trial. Shipley v. Williams, No. M2007-01217-COA-R3-CV, 2009 WL 2486199, at *6-7 (Tenn.Ct. App. Aug. 14, 2009) (emphasis in original). Regarding Mrs. Shipley’s negligence claim based on Dr. Williams’ failure to admit her to the hospital, the intermediate court noted that the sole means by which Dr. Williams had negated an element of her claim (breach of the applicable standard of care) was through the testimony of Drs. Rerych and Shaw. Because the trial court later disqualified Drs. Rerych and Shaw as expert witnesses and excluded their testimony, there was no proof in the record to affirmatively negate an element of the failure to admit claim. In so ruling, the Court of Appeals observed that “there are dangers in relying upon plaintiffs experts at one stage in the proceeding when their testimony is beneficial and then later disqualifying [them] when their testimony is not helpful.” Id. at *6 n. 3.

We granted permission to appeal in order to address and clarify the standards a Tennessee court should use in determining whether a medical expert is qualified to testify as an expert witness in a medical negligence case.

Analysis

Summary Judgment Standard

Summary judgment is appropriate only when the moving party can demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn.2008); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993).4 In Hannan, this Court reaffirmed the basic principles guiding Tennessee courts in determining whether a motion for summary judgment should be granted, stating:

The moving party has the ultimate burden of persuading the court that “there are no disputed, material facts creating a genuine issue for trial ... and that he is entitled to judgment as a matter of law.” Byrd, 847 S.W.2d at 215. If the moving party makes a properly supported motion, the burden of production then shifts to the nonmoving party to show that a genuine issue of material fact exists. Id.

... [I]n Tennessee, a moving party who seeks to shift the burden of production to the nonmoving party who bears the burden of proof at trial must either: (1) affirmatively negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an essential element of the claim at trial.

Hannan, 270 S.W.3d at 5, 8-9. It is insufficient for the moving party to “merely point to omissions in the nonmoving party’s proof and allege that the nonmoving party cannot prove the element at trial.” Id. at 10. “Similarly, the presentation of evidence that raises doubts about the non-moving party’s ability to prove his or her claim is also insufficient.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn.2008). If the party moving for summary judgment fails to satisfy its initial burden of production, the burden does not shift to the nonmovant, and the court must dismiss the motion for summary judgment. Hannan, 270 S.W.3d at 5; Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn.1998).

*536The standard by which our courts must assess the evidence presented in support of, and in opposition to, a motion for summary judgment is also well established:

Courts must view the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). A grant of summary judgment is appropriate only when the facts and the reasonable inferences from those facts would permit a reasonable person to reach only one conclusion. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000). In making that assessment, this Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn.2009). This Court stated the applicable summary judgment standard in Martin as follows: “the non-moving party’s evidence m,ust be accepted as true, and any doubts concerning the existence of a genuine issue of material fact shall be resolved in favor of the non-moving party.” Martin, 271 S.W.3d at 84 (citing McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998)) (emphasis added). “Because the resolution of a motion for summary judgment is a matter of law, we review the trial court’s judgment de novo with no presumption of correctness.” Martin, 271 S.W.3d at 84.

These summary judgment principles are applicable in the same way and with equal force in a medical malpractice case as in any other civil action. See Cox v. M.A. Primary & Urgent Care Clinic, 313 S.W.3d 240, 248 (Tenn.2010); Kelley v. Middle Tenn. Emergency Physicians, P.C., 133 S.W.3d 587, 591, 596 (Tenn.2004); Moon v. St. Thomas Hosp., 983 S.W.2d 225, 229 (Tenn.1998); Bowman v. Henard, 547 S.W.2d 527, 529-30 (Tenn.1977).

The Court of Appeals correctly observed in this case that Dr. Williams presented no proof to negate an element of Mrs. Ship-ley’s claims except in her failure to admit to the hospital claim. As the intermediate court noted, “Dr. Williams filed excerpts from her deposition that do not address the applicable standard of care and whether she met it. Unlike Dr. Walker, Dr. Williams has filed no affidavit about the applicable standard of care and whether she met it.” Shipley, 2009 WL 2486199, at *1. Dr. Williams admits in her appellate brief that she did not meet Hannan’s first prong requiring her to affirmatively negate an essential element of the nonmov-ing party’s claim. She argues, however, that she has successfully met Hannan’s second prong by showing that Mrs. Ship-ley cannot prove an essential element of her claim at trial because the trial court disqualified Mrs. Shipley’s expert medical witnesses and the trial court’s scheduling order deadlines for disclosure of expert witnesses had passed long before Dr. Williams moved for disqualification and summary judgment. Our resolution of this issue hinges on the correctness of the trial court’s ruling excluding Drs. Rerych and Shaw as expert witnesses based on Tennessee Code Annotated section 29-26-115.

Expert Testimony in Medical Malpractice Cases — The Locality Rule

Tennessee Code Annotated section 29-26-115 sets forth the required elements of proof in subsection (a), and the requirements for competency of a proffered medical expert in subsection (b), in a medical malpractice case:

(a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b):

*537(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;

(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and

(3) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.

(b) No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person’s expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred.

Tenn. Code Ann. § 29-26-115 (2000 & Supp.2010). Thus, expert testimony must be provided by a plaintiff to establish the elements of his or her medical negligence case, Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 553 (Tenn.2006); Stovall v. Clarke, 113 S.W.3d 715, 723 (Tenn.2003); Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn.2002), subject to the “common knowledge” exception that is not applicable here.5

An essential element of a claimant’s proof is the “recognized standard of acceptable professional practice ... in the community in which the defendant practices or in a similar community.” Tenn. Code Ann. § 29-26-115(a)(l). This requirement is known as the “locality rule.”

Before the Legislature enacted the locality rule in 1975, Tennessee courts applied a common law “strict locality” rule, requiring proof of the standard of care in the same locality as the defendant. Thompson v. Methodist Hosp., 211 Tenn. 650, 367 S.W.2d 134, 136 (1962) (“standards prevailing in any hospital in Memphis”); Gresham v. Ford, 192 Tenn. 310, 241 S.W.2d 408, 410 (1951) (“in that vicinity”); Floyd v. Walls, 26 TenmApp. 151, 168 S.W.2d 602, 607 (1941) (“the locality where he practiced”); Haskins v. Howard, 159 Tenn. 86, 16 S.W.2d 20, 23 (1929) (“same locality”). The justification for the rule in Tennessee and elsewhere was the assumption that doctors in an urban community had more access to medical resources and opportunities than doctors in rural areas. Sutphin v. Platt, 720 S.W.2d 455, 457 (Tenn.1986); Joseph H. King, Jr., The Standard of Care and Informed Consent Under the Tennessee Medical Malpractice Act, 44 Tenn. L.Rev. 225, 256-57 (1977); see, e.g., Small v. Howard, 128 Mass. 131, 136 (1880) (overruled by Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793, 798 (1968)).6

*538As our society became more interconnected with improved transportation and communications, the strict locality rule gave way to a more relaxed modified locality rule in many states, including Tennessee. See McCay v. Mitchell, 62 Tenn.App. 424, 463 S.W.2d 710, 718 (1970) (“Admittedly the ‘locality’ rule has been relaxed, and the knowledge possessed by a physician which renders him competent to testify as an expert can be from sources and experience other than in the locality in which the cause of action arose”). The adoption of a “same or similar” locality rule in 1975, reflected a “somewhat broadened definition of the geographic component to the medical standard of care,” a loosening of the traditional common law “strict” locality rule that required a plaintiff “to introduce evidence concerning the standard of care in the strict locality where the defendant worked.” Sutphin, 720 S.W.2d at 457 (Tenn.1986). Under this rule, a medical expert in a Tennessee court must demonstrate that he or she is familiar with either the standard in the community where the defendant practices or a “similar community.” Tenn.Code Ann. § 29-26-115.7

At the outset, we make an observation that is both basic and of fundamental importance to our analysis: the statute does not define “similar community,” nor does it provide any guidance as to how a community is determined to be “similar” to that where the defendant practices. Thus, it has fallen to the courts to determine the standards for when a medical expert has sufficiently established his or her familiarity with the defendant’s community or a “similar community.”

A trial court’s determination of whether an expert is qualified to provide testimony is of critical importance to a claimant’s malpractice action. See Bowman, 547 S.W.2d at 530 (Stating that although summary judgment is disfavored in a medical malpractice case as a general rule, finding exception “if the only issue is one of the kind on which expert testimony must be presented, and nothing is presented to challenge the affidavit of the expert, summary judgment may be proper”); Kenyon v. Handal, 122 S.W.3d 743, 758-59 (Tenn.Ct.App.2003) (Noting that “[i]t is now commonplace for medical practitioners to challenge the qualifications of the patient’s expert” and observing that “[p]atients who are unable to produce an expert affidavit of their own face almost certain dismissal of their complaint”); Coyle v. Prieto, 822 S.W.2d 596, 598 (Tenn.Ct.App.1991) (Observing that “plaintiffs case ... stands or falls on the correctness of the trial court’s *539ruling” that his expert was qualified to testify). Trial courts called upon to decide whether a claimant’s expert should be allowed to testify are therefore often deciding much more than a pretrial evidentiary skirmish, but rather whether the claimant’s action should be summarily dismissed, or allowed to be evaluated by a jury of his or her peers.

A review of the Tennessee cases interpreting and applying the locality rule in evaluating the qualifications of a proffered medical expert reveals that its application has been difficult and not entirely consistent. We agree with the Court of Appeals’ observation in Totty v. Thompson, 121 S.W.3d 676, 679 (Tenn.Ct.App.2003), that “[f]ew areas of American Jurisprudence have been more challenging through the years than the development of the standard of care applicable in medical malpractice cases.”

This Court first considered a challenge to the qualifications of a claimant’s expert under the locality rule in Searle v. Bryant, 713 S.W.2d 62 (Tenn.1986). The proffered medical expert was an infectious disease specialist and microbiologist who served as the director of the Vanderbilt University Medical Center clinical microbiology laboratory. The expert testified that he had performed infectious disease consultations and visited many of the smaller hospitals in the Middle Tennessee area, and that he was familiar with the standard of acceptable medical practice in the Middle Tennessee area. Id. at 64. The Searle Court stated the following regarding the expert’s familiarity with the Middle Tennessee area:

Although [plaintiff’s expert] Dr. Stratton did not know the location of several cities in Middle Tennessee, he was familiar with Smithville and other cities. He indicated his familiarity with the recognized standard of acceptable medical practice in the smaller communities in Middle Tennessee by testifying that he knew that such hospitals have infectious disease control committees which set up standards for precautions to be taken once an infection is discovered, and that they have the capability to culture for anaerobic bacteria, a procedure, he stated which the recognized standard of care required in this case.

... Dr. Stratton’s testimony that he was familiar with the standard of acceptable medical practice in the Middle Tennessee area with regard to the prevention and treatment of surgical wound infections implies that the same such standard exists throughout the Middle Tennessee area. As a result, under the circumstances of this case we are of the opinion that the testimony was admissible.

Id. at 64-65. The Court reversed the trial court’s decision to disqualify the expert and its directed verdict in the defendant’s favor. Id. at 65.

In Sutphin, this Court upheld the locality rule’s “contiguous state” geographic limitation on the qualification of a medical expert, Tennessee Code Annotated section 29-26-115(b), against a constitutional due process/equal protection challenge. In so doing, the Court noted that “in light of a modern trend towards the national standardization of medical practices, especially in specialties, courts and legislatures have gradually expanded the relevant geographic area for proving the medical standard of care.” Sutphin, 720 S.W.2d at 457.

In 2002, the claimant requested this Court in Robinson to “enlarge the scope of the ‘locality rule’ ... by adopting a national standard of care that would reflect the modern changes and improvements in the practice of medicine, medical technology, and communication.” 83 S.W.3d at 722 (emphasis added). The Court declined to *540adopt a national standard, noting that its “adoption” of a broad national standard in malpractice cases would be inconsistent with the locality rule. Id. at 723-24. The Robinson Court adhered to the statutory requirement that a proffered medical expert “must have knowledge of the standard of professional care in the defendant’s applicable community or knowledge of the standard of professional care in a community that is shown to be similar to the defendant’s community.” Id. at 724 (emphasis in original). But we further stated that “[t]his Court is mindful, however, that in many instances the national standard would indeed be representative of the local standard, especially for board certified specialists” and observed that “an expert’s discussion of the applicability of a national standard does not require exclusion of the testimony.” Id. In Robinson, we held that the proffered expert “did not establish the standard of professional care in Nashville, Tennessee, or in a similar community” where the expert “testified only that the applicable standard of care in this case ‘would be expected’ to be the same as the national standard of care and that ‘[tjhere is no differentiation recognized in ... one locality as opposed to the other, certain localities comparable with Nashville.’ ” Id.

A year later, in Stovall v. Clarke, this Court considered the propriety of the trial court’s summary judgment in favor of two medical malpractice defendants and provided further guidance regarding the application of the locality rule. 113 S.W.3d 715, 722-23 (Tenn.2003). The Stovall Court distinguished the case before it from Robinson and held the proof to be sufficient to qualify the proffered medical expert to testify in a Williamson County, Tennessee, medical negligence action. The proffered expert testified that he did not rely upon a national standard of care, nor did he equate the local standard with a national standard. Although he had never practiced medicine in Tennessee, he testified that he had reviewed over twenty medical charts from Tennessee, had testified in three other malpractice cases in middle Tennessee, and “had reviewed statistical information about the medical community in Williamson County, Tennessee, which included information about the medical specialists and resources available at the Williamson County Medical Center.” Id. at 723 (citation omitted). We observed that the defendant doctor’s arguments for the exclusion of the plaintiffs proffered expert essentially contested the weight of the doctor’s statements and thus misapprehended “the procedural context of this case: the proper analysis with respect to summary judgment is whether the evidence, when viewed in a light most favorable to the plaintiff, raises a genuine issue as to a material fact.” Id. We concluded that the trial court erred in granting summary judgment to the defendant doctors. Id. at 725.

In Hunter v. Ura, 163 S.W.3d 686 (Tenn.2005), the defendants argued that the trial court erred in allowing the testimony of the plaintiffs expert witness “because he did not know the recognized standard of professional care in the community in which the defendant Ura practiced or in a similar community.” Id. at 706-07. We held the following proof submitted by the proffered medical expert, Dr. Witt, sufficient to qualify him to testify:

Dr. Witt was a board-certified anesthesiologist who had practiced in Lexington, Kentucky since 1980. Dr. Witt testified that he was involved with the Academic Association of Anesthesia Program Directors, which was an organization “with people from Vanderbilt, from Lexington, and the surrounding area.” Dr. Witt had attended a meeting of the Southern University Department of Anesthesia *541Chairs at Vanderbilt in Nashville, Tennessee. Dr. Witt stated that he had been to Nashville six or seven times, that he knew the Chair at Vanderbilt’s anesthesia department very well, and that he was “familiar, in a regional setting, [with] the general kinds of care offered [ ] in Lexington as well as in Nashville.” Dr. Witt discussed several hospitals in Nashville and stated that the standard of professional care in this case “would be approximately the same as what we would see at some of the hospitals where I have been in Nashville.”

Id. at 708 (brackets in original). After reviewing our holdings in Robinson and Stovall, we reiterated that a medical expert may not “rely solely on a national standard of care” but instead must “ ‘show[ ] some underlying basis for his testimony.’ ” Id. (emphasis added).

In Williams, we observed that “[e]xpert witnesses may not simply assert their familiarity with the standard of professional care in the defendant’s community without indicating the basis for their familiarity.” 193 S.W.3d at 553. We summarized the proof contained in the proffered expert’s affidavit as follows and found it to be insufficient to qualify him to testify:

Dr. Gordon, a board-certified anesthesiologist who practiced in Winchester, Tennessee, stated that he was “familiar with the recognized standard of acceptable professional medical care in the metropolitan areas of Tennessee and specifically in Memphis, Tennessee and similar communities.... ” The affidavit contains no information regarding the basis for Dr. Gordon’s familiarity with the standard of care in Memphis, Tennessee, nor does it contain a basis for finding that the standard of care in Memphis is similar to that in the community in which Dr. Gordon practices. In short, Dr. Gordon’s affidavit simply asserts that he is familiar with the applicable standard of care. As we have explained in prior cases, a bare assertion of familiarity is insufficient under Tennessee Code Annotated section 29-26-115(a)(1). Accordingly, we conclude that the affidavit was legally insufficient.

Id. at 554.

The Court of Appeals has likewise struggled in addressing the question of the applicable standards to determine whether a medical expert has been qualified to testify by showing familiarity with the defendant’s medical community or a similar community. In Ayers v. Rutherford Hosp., Inc., 689 S.W.2d 155 (Tenn.Ct.App.1984), the court affirmed the disqualification of a medical expert because it was not shown that he had practiced medicine in a contiguous state during the year prior to the injury and because he had not sufficiently demonstrated that he was familiar with the defendant’s medical community or a similar community. The proffered expert stated in an affidavit that he was “familiar with the standard of care required of physicians in delivery and perinatal care of newborns as it would pertain to a community such as Murfreesboro, Tennessee.” Id. at 159. But the expert also testified by deposition

that he had never been to Murfreesboro, that he did not know where in Tennessee Murfreesboro was located, that he knew nothing about the size of the community, that he did not know how large the hospital was, that he knew no one from Murfreesboro, and that he knew no one who had ever practiced medicine in the city.

Id. When he was asked if he was familiar with the skills of the practitioners in Mur-freesboro, the proffered expert answered:

“Insofar as they are trained and examined and have developed the same sets *542of skills, read the same literature, update their skills, go to the same conferences for continuous education that I do, come to my conferences when I give them in Tennessee.” He testified that the standard of care “does not vary throughout the country,” that it is a national standard, and “doesn’t change with the locality.”

Id.

In Ledford v. Moskowitz, 742 S.W.2d 645 (Tenn.Ct.App.1987), the defendant doctor practiced in Bradley, Polk, and McMinn counties, and the proffered expert practiced in Atlanta, with “one-third of this practice coming from referrals from small towns outside the Atlanta area.” Id. at 648. The court, noting that the statute did not require “[p]recise knowledge” of a community’s “specific medical statistics,” id., held that the trial court erred in disqualifying the proffered expert witness and reversed summary judgment, stating:

Stuart [plaintiffs expert] testified that he was familiar with the standard of care in small towns all over Georgia. He said that he was familiar with the standard of care in Ducktown and Cleveland in a broad sense, and that he saw what doctors were doing and the standard of practice from examining the patients’ treatment records on referrals from outlying areas, and that recommendations for treatment were sent back to the referring physicians in the patient’s home area. Stuart did testify that he had not been to Cleveland, Tennessee, and did not know the number of hospitals, doctors, or physicians located there. Precise knowledge of the specific medical statistics of a particular community, however, is not a requirement of the statute.

Id. The Ledford court concluded:

We think that, taken as a whole, Stuart’s proof creates a material issue of fact on the standard of acceptable psychiatric practice in similar communities to those found in the Polk, McMinn, and Bradley county area. Although medical malpractice actions impose more rigorous procedural requirements on the plaintiff, once the threshold of proof has been crossed!,] as it has been here by Plaintiffs’ expert Stuart, then the case should proceed to trial on the merits.

Applying the scope of review as set out above, together with this Court’s view that summary judgments are generally inappropriate in tort actions, Bowman v. Henard, 547 S.W.2d 527 (Tenn.1977), the summary judgment of the trial court is reversed and this cause is remanded for trial on the merits.

Id. at 649.

In Coyle v. Prieto, the defendant doctor was a pathologist practicing in Memphis, and the plaintiffs expert was a doctor who practiced internal medicine and emergency room practice in Missouri. 822 S.W.2d at 598 (Tenn.Ct.App.1991). The court held the following proof offered by the plaintiffs expert sufficient to qualify him as a testifying expert:

During the voir dire of Dr. Wettach, he testified that he had participated in the work-up of perhaps two hundred patients with lung cancer, that he was familiar with the standard of care for arriving at a diagnosis of adenocarci-noma in lungs; that he was familiar with the standard of care in Memphis; that the standard of care in Memphis in the medical community was similar to that in St. Louis; that he was familiar with the way the medical profession goes about arriving at a diagnosis; that he was competent to testify about the standard of care for a pathologist in arriving at a diagnosis; that because of the network of medical information existing at the time of trial, the standard of care *543was pretty much uniform throughout the country; and finally, because of his training, education, and experience, he was competent to render an expert opinion about the manner and method in which the defendant arrived at his diagnosis. He stated that he arrived at his position by reviewing the x-rays in the patient’s medical file, the patient’s history, and the physical; and in addition, by reading some of the depositions taken in the case.

Id. The Coyle court did not indicate that the Missouri doctor provided any further testimony elaborating on or supporting his statement “that the standard of care in Memphis in the medical community was similar to that in St. Louis.” But the court concluded that the proffered expert “was competent to testify with regard to the recognized standard of acceptable medical practice. The objection raised by defendant goes more to the weight of the evidence rather than to its admissibility.” Id. at 600.

In Mahon v. Jackson-Madison Cnty. Gen’l Hosp., 968 S.W.2d 826 (Tenn.Ct.App.1997), the defendant doctor was a surgeon practicing in Jackson, Tennessee, and the plaintiffs expert was a surgeon practicing in Missouri. The Mahon court summarized the plaintiffs expert’s testimony, which the court held to be insufficient, as follows:

Dr. Shane states in his affidavit that he was familiar with the recognized standard of acceptable medical practice in an area such as Jackson, Tennessee and at a facility the size of Hospital. He further states that the standard of care in Jackson and at Hospital would be comparable to the cities and facilities at which he has practiced medicine and is the same for New York city and other large cities and, in effect, is a national standard. Dr. Shane also states that Dr. Thomas failed to meet the standard of care that “should have been available ” in a city the size of Jackson, Tennessee. (Emphasis supplied). Dr. Shane’s statement concerning the standard of care that “should have been available” is significant in that it illustrates that his statement in his affidavit regarding the standard of care is premised on the national standard of care and not on the standard of care for Jackson or similar communities. Admittedly, in his discovery deposition, he quite readily admits his complete lack of knowledge of Jackson’s medical community!)]

Id. at 880. The court observed that “a complete lack of knowledge concerning a community’s medical resources would be contrary to knowledge of the required standard of care” and stated that “we cannot accept Dr. Shane’s bare assertion that the standard of care in Jackson is the same nationwide and that the level of care with which Dr. Shane is familiar should have been available in Jackson.” Id. at 831 (emphasis in original).

In Roberts v. Bicknell, 78 S.W.3d 106 (Tenn.Ct.App.2001), the court was presented with a set of facts similar to those in Mabon, in that the defendant practiced in Jackson and the proffered expert “quite candidly admitted to knowing nothing about the practice of medicine in Jackson, Tennessee and the applicable standard of care for that locality.” Id. at 113. The court, affirming summary judgment and the trial court’s disqualification of plaintiffs expert, reiterated that “[t]he law on expert witnesses, as it exists in Tennessee, requires the expert to have some knowledge of the practice of medicine in the community at issue or a similar community,” and stated that “[w]e believe that it is reasonable to base such knowledge, among other things, upon information such as the size of the community, the existence or *544non-existence of teaching hospitals in the community and the location of the community.” Id. at 114 (emphasis in original).

In Wilson v. Patterson, 73 S.W.3d 95 (Tenn.Ct.App.2001), the defendant doctor practiced in Memphis, and the plaintiffs expert practiced in Lexington, Kentucky. The plaintiffs expert provided the following testimony:

Dr. Swan, in his deposition, indicates that there is a national standard of care for physicians in this particular specialty and that therefore he is familiar with the standard of care in Memphis, Tennessee. In his second affidavit, which was stricken by the trial court, he establishes that he is familiar with the recognized standard of care in the field of obstetrics and gynecology in Lexington, Kentucky, by virtue of his experience set out in his affidavit. He also opines that Lexington, Kentucky and Memphis, Tennessee are similar areas with regard to the standard of care of acceptable professional medical services, stating: “Both Lexington, Kentucky and Memphis, Tennessee are regional medical centers and are the locations of their state medical schools.” The affidavit goes somewhat further stating that because of Dr. Swan’s involvement in medical malpractice cases in Memphis, Tennessee,8 he has the opinion that the recognized standard of care of acceptable professional medical services of obstetrics and gynecology in Memphis is the same as that in Lexington.

Id. at 103. The Wilson court, reversing the trial court’s disqualification of the expert and summary judgment in defendant’s favor, concluded that “[ajlthough Dr. Swan’s testimony concerning the similarity of Lexington and Memphis is somewhat meager, we believe this testimony in conjunction with Dr. Swan’s testimony concerning his knowledge of the standard of care of Memphis is barely sufficient to withstand attack at the summary judgment stage of the proceeding.” Id. at 105.

In Kenyon v. Handal, 122 S.W.3d 743 (Tenn.Ct.App.2003), the court affirmed the trial court’s disqualification of plaintiffs expert, who practiced in Douglasville, Georgia, on the grounds that the expert’s affidavit did not contain sufficient facts to demonstrate that his opinion “is based either on his familiarity with the applicable standard of professional practice in Galla-tin or Sumner County or on his knowledge of the applicable standard of professional practice in a community similar to Gallatin or Sumner County” where the defendant practiced. Id. at 762. The court observed:

Nothing in Dr. Kumar’s affidavit indicates that he has any personal knowledge of the practice of obstetrics and gynecology in Gallatin or Sumner County. Accordingly, he can comply with Tenn.Code Ann. § 29 — 26—115(a)(1) only by demonstrating that he knows the applicable standard of professional practice in a community that is similar to Galla-tin or Sumner County.

*545Dr. Kumar does not assert that Doug-lasville, Georgia where he practices is similar to Gallatin or Sumner County. He bases his familiarity with the applicable standard of care of an obstetrician in January 1998 at the Sumner Regional Medical Center in Gallatin on his conclusion that the standards of professional practice in the State of Georgia are the same as those in the State of Tennessee. Generalizations regarding the similarity of the standards of professional care in two contiguous states are not specific enough information to demonstrate that a medical practitioner is qualified under the locality rule to render an opinion in a medical malpractice case.

Id.

In Bravo v. Sumner Reg’l Health Sys., Inc., 148 S.W.3d 357 (Tenn.Ct.App.2003), the defendant, a doctor practicing in Galla-tin, argued that the affidavit of the plaintiffs’ expert, who practiced in Georgia, did not satisfy the requirements of the locality rule. Id. at 368. The court disagreed, finding as follows:

Dr. Engel’s affidavit, however, sets out sufficient evidence to show that he was familiar with the standard of care either in Gallatin or in a similar community. In his affidavit, Dr. Engel states that, through his service on the TennCare review board, he has “become familiar with the medical resources available to obstetricians in communities similar in size to Gallatin,” and he is “familiar with the treatment, care and skill of practitioners in communities similar to Galla-tin.” Further, he states that he has reviewed literature and data regarding Gallatin, and he compares it with communities he claims are similar in size, namely Rome, Floyd County, Georgia, and Columbus, Muscogee County, Georgia. He asserts that, “[b]eeause of the referrals I receive from Muscogee County and Floyd County, I am familiar with the standard procedures and practices of obstetricians in Georgia communities similar to Gallatin.” He also states that he is “familiar with the standard of care for obstetrics and gynecology in 2000 in Rome, Floyd County, Georgia,” and that he is “familiar with the standard of care for obstetrics and gynecology in 2000 in Columbus, Muscogee County, Georgia.” Finally, Dr. Engel states that he has visited hospitals in communities similar to Gallatin, and he has attended seminars where he further became familiar with the standard of care for obstetricians in communities similar to Gallatin.

Id. Reversing the trial court’s disqualification of plaintiffs’ expert, the court concluded that “Dr. Engel’s affidavit, viewed in a light most favorable to the Plaintiffs, satisfies the ‘locality rule’ requirements of the statute.” Id. at 369 (emphasis added).

In Carpenter v. Klepper, 205 S.W.3d 474 (Tenn.Ct.App.2006), the court held that two expert medical witnesses called to testify by the defendants were not qualified under the locality rule. The defendants proffered the testimony of a doctor who practiced in Kentucky, whose testimony the court summarized as follows:

Dr. Aaron testified as to the number of beds at the Clarksville hospital, the medical technology available, and the proximity of the city to a larger metropolitan area. Clearly, Dr. Aaron’s testimony established that he had some knowledge as to the medical community in Clarksville.

... Dr. Aaron was admittedly unfamiliar with the standard of care in Clarksville, having practiced solely in Louisville, Kentucky. He asserted that he was, however, “intimately” familiar with the standard of professional practice in communities similar to Clarksville, having served on a federally mandated medical *546care quality assurance committee for the state of Kentucky which collected statistical information from participating hospitals and medical regions throughout the state, some of which had communities similar to Clarksville.

Although Dr. Aaron testified that he had treated patients from communities similar to Clarksville, he further stated that his care of those patients was no different than the care he provided to his regular patients in Louisville.

Id. at 478-80. Although Dr. Aaron further testified that “I do know what the standard of care for closure of trocar sites would be in any accredited institution in Kentucky because I am a surgeon. I’m familiar with those standards and I know how they are applied,” and asserted that he had seen “many [patients] from areas similar to Clarksville,” Id. at 479, 480, the Carpenter court held that he failed to establish the necessary showing of familiarity with a community similar to Clarksville. Id. at 480.

The defendants in Carpenter also proffered the expert testimony of a Dr. DeMa-ria, the chief of general surgery and professor of surgery at the University Medical College of Virginia located in Richmond, Virginia, who was also a fellow of the American College of Surgeons. Id. at 481. Dr. DeMaria testified as follows regarding his knowledge of the Clarksville medical community:

Q. How are you familiar with the standard of care [in Clarksville]?

A. Well, during my tenure in Richmond, I’ve practiced in community hospitals outside of the city. I actually live in a county outside of Richmond that’s about the same size as Montgomery County here. I have worked in several 200-bed — approximate size — hospitals in the Virginia area and have done laparoscopic surgery in those hospitals on a number of occasions.

I’ve also traveled in my role as a teacher to numerous communities that are very similar to this in other states.

I think Dr. Black had provided a supplement that I looked at that says that Montgomery County has about 135,-000 people. I think I mentioned before that I know about the hospital, the size of the hospital, its capabilities, and so forth.

[The defendants’ hospital has] about 200 or so beds. They have an emergency room. They have cancer treatment. They have most of the standard specialties represented. I think they have about 150 staff physicians with privileges there.

... I have, you know, encountered other situations that are very similar in both my own local environment in Virginia, knowing physicians who worked in smaller hospitals working with them on a regular basis, as well as traveling to numerous smaller hospitals, having a chance to develop relationships with surgeons, physicians. I offer courses at our institution. We have many surgeons travel to Richmond where we have several days of interaction, and so forth.

Id. at 480-82. The Carpenter court held that Dr. DeMaria had failed to sufficiently establish his familiarity with a community similar to Clarksville, reversed the trial court’s entry of the defense jury verdict, and remanded for a new trial. In reaching this conclusion, the court stated:

There is no basis in logic or reason why the testimony of both Dr. Aaron and Dr. *547DeMaria is not admissible into evidence in this case. We are, however, powerless to do anything other than to engage in the tedious exercise of hair-splitting manifested both in this case and in the recent case of Travis v. Ferraraccio, et al., 2005 WL 2277589, No. M2003-00916-COA-R3-CV (Tenn.Ct.App. Sept. 19, 2005). We can only once again follow the lead of the Supreme Court of Tennessee in Robinson, 83 S.W.3d at 723-24, and implore the Legislature to relegate the “similar locality rule” to the “ash heap” of history.

Carpenter, 205 S.W.3d at 484.

In Taylor ex rel. Gneiwek v. Jackson-Madison Cnty. Gen’l Hosp. Dist., 231 S.W.3d 361 (Tenn.Ct.App.2006), the defendant practiced in Jackson, and the plaintiffs expert practiced in Northeast Georgia. The court found the following summarized proof to be sufficient to qualify the plaintiffs expert, Dr. Harkrider:

Dr. Harkrider testified that he had conducted research concerning the community of Jackson, Tennessee, including referencing information concerning physicians and medical specialties in Jackson from a 1997 edition of the “Yellow Pages” directory for Jackson[,] Tennessee; reviewing information from the Madison County Chamber of Commerce regarding the community of Jackson, Tennessee; and reviewing information about the Defendant Jackson-Madison County General Hospital.

... Furthermore, Dr. Harkrider also compared the Defendant Hospital with Northeast Georgia Medical Center, based in Gainesville, Georgia, where Dr. Harkrider practiced, and testified as follows:

Q. ... Doctor, what — you’ve mentioned previously that you worked at Northeast Georgia Medical?

A. Yes, sir.

Q. What type of hospital is Northeast Georgia Medical?

A. It’s a full service hospital based in Gainesville, Georgia, which is approximately 40 miles north east of Georgia — of Atlanta. It’s a tertiary facility. Has all subspecialties, areas of medicine. It has a 20-county catchment area of patients that are referred to it.

Q. Okay. And have you made any comparisons with the work or practice that you have at the Northeast Georgia Medical facility to Jackson-Madison County General Hospital?

A. I have.

Q. And what were the comparisons . that you made?

A. The hospitals look fairly similar. They both are referral hospitals. They both have large catchment areas. They both have very busy emergency departments. I think Jackson-Madison County has somewhere around a hundred thousand, a hundred and five thousand. Northeast Georgia is between 75 and 80,000. I see all types of patients, and that would be the similarity.

Id. at 368, 370. The Taylor court, affirming the trial court’s qualification of Dr. Harkrider as an expert medical witness, stated that “[although Dr. Harkrider testified to a national standard of care, it appears ... that he did in fact rely upon a local standard of care in testifying regarding the duty of care owed to Mr. Taylor in this case, and whether such standard of care was breached.” Id. at 372.

In Eckler v. Allen, 231 S.W.3d 379 (Tenn.Ct.App.2006), the Court of Appeals added a novel and significant layer of analysis to the issue of qualification of medical *548experts under the locality rule. In Eckler, the trial court disqualified the plaintiffs expert on the grounds that he did not demonstrate sufficient familiarity with the Memphis medical community and the appropriate standard of care in Memphis and granted the defendant summary judgment. The Eckler court analyzed the plaintiffs expert testimony as follows:

In his affidavit, Dr. Huang clearly stated that he was familiar with the standard of care in the Memphis community. Dr. Huang’s affidavit and attached spreadsheet also demonstrate that Dr. Huang obtained knowledge of the applicable standard of care by surveying physicians in Tennessee who practice within the specialized field of Mohs micrographic surgery, including the one Mohs micro-graphics surgeon in Memphis who is not a partner of [defendant] Dr. Allen.

.... Our inquiry becomes, therefore, whether knowledge obtained by surveying physicians who practice in the specialized field in the defendant’s community is sufficient under the statute, or whether the statute demands personal, firsthand knowledge.

In the case at bar, although Dr. Huang’s affidavit and supporting attached documents demonstrated that he has personal knowledge of the standard of care applicable to the specialized field in Birmingham and, arguably, on a national level, there is nothing to indicate personal knowledge of the standard of care applicable in Memphis. Personal is “done in person without the intervention of another.” Personal knowledge is “first-hand” knowledge. Dr. Huang’s familiarity with the standard of care in Memphis was garnered only through interviewing other physicians in the community; it was not based on any firsthand experience.

Defendants assert that knowledge gained by surveying other physicians and not by personal or firsthand experience is not sufficient under § 29-26-115(a)(1). They submit that a non-expert could survey physicians in a community if the mere collection of data could constitute knowledge. Defendants assert the statute requires personal, firsthand, or direct knowledge of the applicable standard by an expert who practices in the community or in a similar community. We agree.

Id. at 386 (internal citations omitted). Thus, in Eckler, the court for the first time imposed a “personal, firsthand, or direct knowledge” requirement upon an expert, in effect holding that an expert’s attempts to educate himself or herself on the standard of care in a community where the expert has not practiced will always fall short, because the expert has not obtained “personal, firsthand, direct” knowledge of the medical community. The court reached this conclusion despite its recognition that, as we observed in Robinson, “in many cases and particularly in cases that involve a board-certified specialty, such as the case now before us, the national standard is representative of the local standard.” Eckler, 281 S.W.3d at 387.

Less than a year later, the Western Section of the Court of Appeals again applied the newly-minted “personal, firsthand, direct knowledge” standard to disqualify a medical expert proffered by the defendant hospital. Allen v. Methodist Healthcare Memphis Hosps., 237 S.W.3d 293 (Tenn.Ct.App.2007). The Allen court stated:

It is undisputed that Dr. VanHooydonk [defendant’s expert] practices in Nashville and not in Memphis. Dr. Van-Hooydonk ... is a member of the faculty at Vanderbilt, and all the hospitals at which he holds privileges are located in *549Nashville. However, the Hospital offered no evidence that Nashville is a community similar to Memphis.

We accordingly turn to whether Dr. VanHooydonk demonstrated knowledge of the standard of care applicable to nurses in Memphis hospital practice for the purposes of § 29-26-115(a)(l). The Hospital asserts Dr. VanHooydonk demonstrated familiarity with the applicable standard of care where he testified that he has interacted with Memphis physicians and nurses at a number of medical lectures and where he taught a continuing medical education in Memphis on timely intervention in obstetrics. The Hospital asserts that Dr. VanHooy-donk’s teaching experience regarding intervention in obstetrics makes him particularly qualified to testify in this matter. Although the Hospital arguably has shown that Dr. VanHooydonk’s credentials demonstrate knowledge of an optimum or national standard of care, we agree with Ms. Allen that the Hospital has failed to demonstrate knowledge of the standard of care in Memphis, or in a similar community, for the purposes of the statute.

We likewise hold here that Dr. Van-Hooydonk’s discussions with Memphis physicians and nurses at medical lectures does not constitute personal knowledge of the standard of care applicable in Memphis under the section. We also hold that, although Dr. Van-Hooydonk’s teaching of continuing education classes in obstetric intervention implies knowledge of a national standard of care, it does not demonstrate knowledge of the standard of care in the Memphis community.

Allen, 287 S.W.3d at 296-97. The court vacated the trial court’s judgment entered pursuant to a defense jury verdict and remanded for a new trial. Id.

Two years after Allen, a panel of the Eastern Section of the Court of Appeals in Farley v. Oak Ridge Med. Imaging, P.C., No. E2008-01731-CQA-R3-CV, 2009 WL 2474742, at *10 (Tenn.Ct.App. Aug. 13, 2009), declined to follow the “personal, firsthand, direct knowledge” standard set forth in Eckler and Allen, stating:

We do not believe Eckler went so far as to hold that the bridge of similarity from the community where the expert practices to the community where the defendant doctor practices, must all be built on personal, firsthand knowledge. There is just too much authority to the contrary that was not even discussed in Eckler.

The Farley court then surveyed and reviewed earlier Tennessee cases where a medical expert had, by various means, educated himself or herself on the characteristics of a defendant’s medical community and was allowed to testify in a malpractice case, and concluded:

Based on the above review, we conclude that the holding in Eckler cannot be extrapolated to require that an expert’s comparison of a standard of care in a community in a contiguous state to a standard of care in the community of the alleged malpractice be made solely on the basis of personal knowledge. If the expert is otherwise qualified, it is enough if he or she is actually practicing in some community in a contiguous state, and “connects the dots” between the standard in that community and the community where the alleged malpractice occurred.... Referrals from and interaction with medical providers in neighboring communities, combined with “a comparison of information such as the size, location, and presence [or absence] *550of teaching hospitals in the two should suffice.

Id. at *11.

Our review of Tennessee Code Annotated section 29-26-115 and pertinent Tennessee case law since 1986 leads us to several conclusions. First, subsection (b) of Tennessee Code Annotated section 29-26-115 sets forth the three requirements for an expert witness to be competent to testify in a medical negligence case. The witness must be (1) “licensed to practice in the state or a contiguous bordering state,” (2) “a profession or specialty which would make the person’s expert testimony relevant to the issues in the case,” and (3) must have “had practiced this profession or specialty in one ... of these states during the year preceding the date that the alleged injury or wrongful act occurred.” Therefore, the only grounds for disqualifying a medical expert as incompetent to testify are (1) that the witness was not licensed to practice in Tennessee, Georgia, Alabama, Mississippi, Arkansas, Missouri, Kentucky, North Carolina, or Virginia; (2) that the witness was not licensed to practice a profession or specialty that would make the person’s expert testimony relevant to the issues in the case; or (3) that the witness did not practice this profession in one of these states during the year preceding the date of the alleged injury or wrongful act. Tenn.Code Ann. § 29-26-115(b).

Subsection (a) of Tennessee Code Annotated section 29-26-115 sets forth the three elements a plaintiff must establish to recover in a medical negligence action:

(1)The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;

(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and

(3) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.

The claimant in most medical negligence cases9 must provide expert testimony to establish the required elements of subsection (a). Id.; Williams, 193 S.W.3d at 553; Stovall, 113 S.W.3d at 723; Robinson, 83 S.W.3d at 724.

Subsections (a) and (b) serve two distinct purposes. Subsection (a) provides the elements that must be proven in a medical negligence action and subsection (b) prescribes who is competent to testify to satisfy the requirements of subsection (a). Therefore, when determining whether a witness is competent to testify, the trial court should look to subsection (b), not subsection (a).

Any challenge to the admissibility of testimony from a medical expert who is competent to testify under section 29 — 26—115(b) can be made based on the Tennessee Rules of Evidence. In particular, Tennessee Rules of Evidence 702 and 703 are called into play. Rule 702 provides that “[i]f scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise,” and Rule 703 provides:

*551The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

In describing the function of Rules 702 and 703, we have stated

that the preliminary question under Tenn. R. Evid. 104 is one of admissibility of the evidence. Once the evidence is admitted, it will thereafter be tested with the crucible of vigorous cross-examination and countervailing proof. After that occurs, a defendant may, of course, challenge the sufficiency of the evidence by moving for a directed verdict at the appropriate times. See Tenn. R. Civ. P. 50. Yet it is important to emphasize that the weight to be given to stated scientific theories, and the resolution of legitimate but competing scientific views, are matters appropriately entrusted to the trier of fact.

McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn.1997) (citation omitted). A trial court should admit the testimony of a competent expert unless the party opposing the expert’s testimony shows that it will not substantially assist the trier of fact or if the facts or data on which the opinion is based are not trustworthy pursuant to Rules 702 and 703.

In its role as a gatekeeper, the trial court is to determine (1) whether the witness meets the competency requirements of Tennessee Code Annotated section 29 — 16—115(b) and, (2) whether the witness’ testimony meets the admissibility requirements of Rules 702 and 703. The trial court is not to decide how much weight is to be given to the witness’ testimony. Once the minimum requirements are met, any questions the trial court may have about the extent of the witness’s knowledge, skill, experience, training, or education pertain only to the weight of the testimony, not to its admissibility. See Stovall, 113 S.W.3d at 725 (noting that arguments concerning a medical expert’s qualifications and competency to testify “take issue primarily with [the expert’s] qualifications and the weight that should be given his opinions .... [t]hese are issues for trial and not for summary judgment”) (emphasis in original); Coyle, 822 S.W.2d at 600 (“The objection raised by the defendant [regarding the expert’s qualifications and competency] goes more to the weight of the evidence rather than to its admissibility”).

In deciding a motion for summary judgment, the trial court does not weigh the evidence, Martin, 271 S.W.3d at 87, but must accept the nonmoving party’s evidence as true, id. at 84, and view both the evidence and all reasonable inferences that can be drawn therefrom in the light most favorable to the nonmoving party. Giggers, 277 S.W.3d at 364; Kelley, 133 S.W.3d at 596. A trial court’s failure to properly determine the expert’s competency, the admissibility of the expert’s testimony, or its failure to view the expert’s testimony in the light most favorable to the nonmovant is reversible error. Cf. Stovall, 113 S.W.3d at 721; Searle, 713 *552S.W.2d at 65 (reversing directed verdict); Bravo, 148 S.W.3d at 863, 369; Wilson, 73 S.W.3d at 104; Church v. Perales, 39 S.W.3d 149, 166-67 (Tenn.Ct.App.2000); Ledford, 742 S.W.2d at 648-49.10 A trial court’s decision to accept or disqualify an expert medical witness is reviewed under the abuse of discretion standard. A trial court abuses its discretion when it disqualifies a witness who meets the competency requirements of section 29 — 16—115(b) and excludes testimony that meets the requirements of Rule 702 and 703. Contrary to statements made in the dissent, Tennessee continues to follow the majority rule and apply the abuse of discretion standard to decisions regarding the admissibility of evidence. This standard remains unchanged by this opinion.

Second, the locality rule requires that the claimant demonstrate “[t]he recognized standard of acceptable professional practice ... in the community in which the defendant practices or in a similar community.” Tenn.Code Ann. § 29 — 26—115(a)(1). The statute does not require a particular means or manner of proving what constitutes a “similar community,” nor does it define that term. Principles of stare decisis compel us to adhere to the requirement that a medical expert must demonstrate a modicum of familiarity with the medical community in which the defendant practices or a similar community. Generally, an expert’s testimony that he or she has reviewed and is familiar with pertinent statistical information such as community size, hospital size, the number and type of medical facilities in the community, and medical services or specialized practices available in the area; has discussed with other medical providers in the pertinent community or a neighboring one regarding the applicable standard of care relevant to the issues presented; or has visited the community or hospital where the defendant practices, will be sufficient to establish the expert’s testimony as relevant and probative to “substantially assist the trier of fact to understand the evidence or to determine a fact in issue” under Tennessee Rule of Evidence 702 in a medical malpractice case and to demonstrate that the facts on which the proffered expert relies are trustworthy pursuant to Tennessee Rule of Evidence 703.

Third, the “personal, firsthand, direct knowledge” standard set forth in Eckler and Allen is too restrictive. There is substantial Tennessee precedent allowing experts to become qualified by educating themselves by various means on the characteristics of a Tennessee medical community. See Stovall, 113 S.W.3d at 723; Searle, 713 S.W.2d at 64-65; Taylor, 231 S.W.3d at 368-71; Pullum v. Robinette, 174 S.W.3d 124, 132-33 (Tenn.Ct.App.2004); Bravo, 148 S.W.3d at 360-61; Ledford, 742 S.W.2d at 648. A proffered medical expert is not required to demonstrate “firsthand” and “direct” knowledge11 of a medical community and the appropriate standard of medical care there in order to qualify as competent to testify in a medical malpractice case. A proffered *553expert may educate himself or herself on the characteristics of a medical community in order to provide competent testimony in a variety of ways, including but not limited to reading reference materials on pertinent statistical information such as community and/or hospital size and the number and type of medical facilities in the area, conversing with other medical providers in the pertinent community or a neighboring or similar one, visiting the community or hospital where the defendant practices, or other means. We expressly reject the “personal, firsthand, direct knowledge” standard formulated by the Court of Appeals in Eckler and Allen.

Fourth, in this case we do not adopt a national standard of care in medical malpractice cases. Any change in the locality rule must come from the legislature, not the judiciary. However, we recognize that in many instances the national standard is representative of the local standard. Robinson, 83 S.W.3d at 724; see also Pullum, 174 S.W.3d at 129-30. A number of medical experts have testified in Tennessee cases that there is either a uniform national standard of care or a standard pertinent to a broad geographic area applicable to medical care providers. Examples of such testimony are found in Stovall, 113 S.W.3d at 719; Robinson, 83 S.W.3d at 721; Taylor, 231 S.W.3d at 371-72; Carpenter, 205 S.W.3d at 479-80; Pullum, 174 S.W.3d at 131-32; Kenyon, 122 S.W.3d at 762; Tatty, 121 S.W.3d at 678; Wilson, 73 S.W.3d at 99; Mahon, 968 S.W.2d at 828; Coyle, 822 S.W.2d at 598; and Ayers, 689 S.W.2d at 159.12

Therefore, expert medical testimony regarding a broader regional standard or a national standard should not be barred, but should be considered as an element of the expert witness’ knowledge of the standard of care in the same or similar community. Contrary to statements made in the dissent, this recognition is neither a dilution nor a relaxation nor an invitation of reliance on a national or regional standard of care. It is simply a common sense recognition of the current modern state of medical training, certification, communication, and information sharing technology, as demonstrated in the numerous instances of sworn testimony offered by medical experts in the above-reviewed cases, as well as the thoughtful analysis and discussion by courts in several other jurisdictions, that the consideration of such testimony is justified. See, e.g., Shilkret v. Annapolis Emer. Hosp. Ass’n, 276 Md. 187, 349 A.2d 245 (1975); Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968); Hall v. Hilbun, 466 So.2d 856 (Miss.1985).

Only after a medical expert witness has sufficiently established his or her familiarity with the standard of care in the same or similar community as the defendant, may the witness testify that there is a national standard of medical care to which members of his or her profession and/or specialty must adhere. This testimony, coupled with the expert’s explanation of why the national standard applies under the circumstances, is permissible and pertinent to support the expert’s opinion on the standard of care. The mere mention of a national standard of care should not disqualify an expert from testifying. However, an expert may not rely solely on a bare assertion of the existence of an applicable national standard of care in order for his or her proffered testimony *554to be admissible under Rules of Evidence 702 and 703.

In summary, (1) at the summary judgment stage of the proceedings, trial courts should not weigh the evidence but must view the testimony of a qualified expert proffered by the nonmoving party in the light most favorable to the nonmoving party. (2) A claimant is required to prove the “[t]he recognized standard of acceptable professional practice ... in the community in which the defendant practices or in a similar community.” Tenn.Code Ann. § 29 — 26—115(a)(1). The medical expert or experts used by the claimant to satisfy this requirement must demonstrate some familiarity with the medical community in which the defendant practices, or a similar community, in order for the expert’s testimony to be admissible under Rules 702 and 703. Generally, a competent expert’s testimony that he or she has reviewed and is familiar with pertinent statistical information such as community size, hospital size, the number and type of medical facilities in the community, and medical services or specialized practices available in the area; has had discussions with other medical providers in the pertinent community or a neighboring one regarding the applicable standard of care relevant to the issues presented; or has visited the community or hospital where the defendant practices, will be sufficient to establish the expert’s testimony as admissible. (3) A medical expert is not required to demonstrate “firsthand” and “direct” knowledge of a medical community and the appropriate standard of medical care there in order to qualify as competent to testify in a medical malpractice case. A proffered expert may educate himself or herself on the characteristics of a medical community in a variety of ways, as we have already noted. (4) In addition to testimony indicating a familiarity with the local standard of care, a medical expert may testify that there is a broad regional standard or a national standard of medical care to which members of his or her profession and/or specialty must adhere, coupled with the expert’s explanation of why the regional or national standard applies under the circumstances.

Qualification of Expert Witnesses Dr. Rerych and Dr. Shaw

We now turn to an application of the above-discussed principles to the testimony of the two proffered medical experts in the present case, Dr. Rerych and Dr. Shaw. Dr. Rerych’s curriculum vitae was included in the record. Dr. Rerych has been licensed to practice medicine in North Carolina since 1986 and has practiced in Asheville as a general, vascular and noncardiac thoracic surgeon since 1988. He is board-certified in general surgery. Dr. Rerych testified that he had traveled to Nashville to testify as a medical expert once or twice before, and had testified in the Tennessee Tri-Cities area on one previous occasion. According to Dr. Rerych’s testimony, he had been previously qualified to provide medical expert testimony in Tennessee and did so testify on two or three earlier occasions. Dr. Rerych testified that he had traveled to Nashville on several occasions and once toured one of the community hospitals there. He also testified that he reviewed demographic information about Nashville, Davidson County, the hospitals and medical facilities in Nashville, and Summit Medical Center where Dr. Williams practices, which he considered in forming his opinion that Asheville is a similar community to Nashville “as it applies to the facts and circumstances of this case,” although he also admitted he did not do any research on and was not familiar with the characteristics of Summit Hospital.

During his deposition, Dr. Rerych and defense counsel engaged in a semantical *555battle typical in a medical malpractice case where defense counsel tries to elicit testimony that will support an argument that the expert relied on a national standard of care, and where the expert may genuinely believe in an applicable national standard under the circumstances but is concerned that saying so will result in his disqualification:

Q: Do you know if [Summit Hospital is] at all similar to the hospital in your community?

A: It most likely is.

Q: How do you know that?

A: How do I know that? Because I’ve been to that area before, and in addition we have the same I wouldn’t say overall systems, but the hospitals are the same. We have acute beds. We have general surgeons and so on who take care of these patients who come through.

Q: Do you have an opinion as to whether or not the standard of care in Asheville, North Carolina, is the same or similar to the standard of care in Nashville or Hermitage, Tennessee?

A: It is.

Q: How do you know that? What’s the basis for that opinion?

A: I’ve been there before in terms of the Nashville vicinity, and I’ve testified in Nashville.

Q: I know you’ve testified there, but what’s the basis for your opinion that you see the same number of patients?

A: Not the same number. It might be different numbers. But they’re similar communities.

Q: How are they similar?

A: We see the same types of patients.

Q: How do you know that?

A: Because Crohn’s disease I see here. Ulcerative colitis I see here. That’s how I know. I mean that was not the case of an exotic problem.

Q: Would you say the standard of care is the same all over the United States for surgery?

A: Not necessarily, no. But the bottom line is we’re looking at similar communities.

Q: Well, how are the communities of Nashville and Asheville the same?

A: We see the same patients. The medical doctors are similar in terms of their training and experience.

Q: You don’t have any firsthand knowledge of practicing medicine in Hermitage or Nashville, do you?

A: I don’t have any firsthand knowledge, but on the other hand, medicine is medicine; diseases are diseases; training is similar.

Q: Medicine is medicine. So you’re saying the standard of care is the same in Columbus, Ohio, as it is in Asheville, North Carolina?

A: I’m saying that there [are] standards of care which are similar, governed by similar training, similar experience, similar education in similar communities.

Q: Regardless of where you are?

A: That’s correct. But not a national standard of care. I’m not going to get off into that stuff.

Q: Well, would you agree that the standard of care in Sacramento, California, is the same as Asheville, North Carolina?

A: Given the similar circumstances, perhaps.

*556Q: Okay. And the question is do you believe that the standard of care in Sacramento, California, is the same as that in Asheville, North Carolina?

A: I don’t understand your question.

Q: What is the basis for you having knowledge as to the standard of care in Sacramento, California?

A: Sacramento, California, has nothing to do with this case. I don’t want to answer that question.

Q: Well, I’m going to ask for sanctions.

We have carefully reviewed Dr. Rerych’s testimony and credentials and conclude that Dr. Rerych sufficiently established his familiarity with the recognized standard of acceptable professional practice in the community in which the defendant practices or in a similar community. Consequently, the trial court erred in holding him disqualified to render an expert medical opinion in this case.

Regarding Dr. Shaw’s testimony and qualifications, the Court of Appeals stated only the following:

The trial court first found that Dr. Shaw, an emergency room physician, failed to meet the requirements of Tenn. Code Ann. § 29-26-115 since he did not practice the appropriate speciality, i.e., surgery. Based upon the abuse of discretion standard, we cannot disagree that an emergency room physician’s opinion is not helpful in determining whether a surgeon committed malpractice.

Shipley, 2009 WL 2486199, at *5. This statement appears to comport with reason and common sense on its face, and we would be inclined to agree if the issues in this case pertained to surgery. But Tennessee Code Annotated section 29-26-115(b) provides that “[n]o person in a health care profession requiring licensure ... shall be competent to testify ... unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person’s expert testimony relevant to the issues in the case ...” (Emphasis added).

Our courts have recognized on a number of occasions that section 29-26-115 “contains no requirement that the witness practice the same specialty as the defendant.” Searle, 713 S.W.2d at 65 (holding that the witness was competent to testify regarding “the applicable standards of surgeons in the prevention and treatment of surgical wound infections ... even though he was not himself a surgeon”); Cardwell v. Bechtol, 724 S.W.2d 739, 751 (Tenn.1987) (statute does not require witness to practice same specialty as defendant, but “the witness must demonstrate sufficient familiarity with the standard of care and the testimony must be probative of the issue involved”); Pullum, 174 S.W.3d at 142; Church, 39 S.W.3d at 166 n. 17; Ledford, 742 S.W.2d at 647. Consequently, courts must look carefully at the particular issues presented in the case to determine if an expert practices a profession or specialty that would make the expert’s testimony relevant to those issues. In this case, Dr. Shaw, a physician board-certified in emergency medicine who had practiced medicine for 33 years, testified that he was familiar with the standard of care applicable to a surgeon for the limited area of the standard of communication between a referring doctor and an emergency room doctor, and the apportionment of responsibility for deciding whether the patient should be admitted, and how, when, and by whom a patient should receive follow-up care. As noted, the issues in this case regarding allegations of Dr. Williams’ *557negligence do not pertain to surgery performed by Dr. Williams or related surgical care, but rather whether Dr. Williams provided appropriate and timely follow-up care under the circumstances presented, including Mrs. Shipley’s medical condition at the time she presented to the emergency room the first time. Dr. Shaw was thus qualified to testify as an expert because his testimony was probative and relevant to the issues and allegations presented in Mrs. Shipley’s lawsuit.13

Conclusion

We reverse the trial court’s judgment that Dr. Rerych and Dr. Shaw were not qualified to render expert medical opinions pursuant to Tennessee Code Annotated section 29-26-115. Regarding Mrs. Shipley’s claim based on failure to admit to the hospital on November 18, 2001, Dr. Williams successfully affirmatively negated an element of that claim— breach of the applicable standard of care— by pointing to the testimony of Drs. Rer-ych and Shaw that the failure to admit was not a breach of the appropriate standard of care. We reverse the judgment of the Court of Appeals in part and reinstate summary judgment in Dr. Williams’ favor on the failure to admit claim. Because Dr. Williams failed to either affirmatively negate an essential element of Mrs. Shipley’s remaining claims, or show that Mrs. Ship-ley cannot prove an essential element of her claims at trial, the burden did not shift to Mrs. Shipley to demonstrate a genuine issue of material fact, and summary judgment in Dr. Williams’ favor was improperly granted. We therefore vacate the court’s order granting summary judgment and remand the case for trial. Costs on appeal are assessed to the appellant, Dr. Robin Williams.

WILLIAM C. KOCH, JR., J., filed a separate opinion concurring in part and dissenting in part.

JANICE M. HOLDER, J„ filed a separate concurring opinion.

JANICE M. HOLDER, J.,

concurring.

I concur in the majority opinion but write separately to address the dissenting opinion’s assertion that the “sky is falling.” The majority opinion has not substantially altered “the standard of review of summary judgments based on the inadmissibility of evidence relating to an essential element of the nonmoving party’s case.” Despite Justice Koch’s statements to the contrary, after the release of this opinion, appellate courts will continue to review evidentiary determinations using an abuse of discretion standard. Stating otherwise does not advance this discussion.

Medical malpractice cases, like Ms. Shipley’s claim against Dr. Williams, are governed in part by a statute that sets forth the elements a plaintiff must prove to recover damages. Tenn.Code Ann. § 29-26-115(a) (Supp.2010). The statute also governs the competency of testifying experts. Tenn.Code Ann. § 29-26-115(b). Added to this interplay are the Tennessee Rules of.Evidence.

When we construe a statute and its application to the facts of a case, our review is de novo. Larsen-Ball v. Ball, 301 S.W.3d 228, 232 (Tenn.2010). An expert must be “competent to testify” concerning the three elements the plaintiff must prove *558to recover. The expert’s competency is governed by the two requirements of subsection (b). The proffered expert must be “licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person’s expert testimony relevant to the issues in the case.” TenmCode Ann. § 29-26-115(b). The proffered expert also must have “practiced this profession or specialty in one ... of these states during the year preceding the date that the alleged injury or wrongful act occurred.” Tenn.Code Ann. § 29 — 26—115(b).1 Section 29-26-115 is clear that a witness who satisfies subsection (b) is competent to testify as to the elements in subsection (a), including the standard of care the plaintiff must prove.

Once the expert’s competency is established, the plaintiff must provide evidence through its expert of the three elements set forth in subsection 29-26-115(a): (1) the recognized standard of care in the defendant’s community or in a similar community; (2) that the defendant failed to comply with the standard of care; and (3) that the plaintiff suffered injuries as a proximate result of the defendant’s failure to comply with the standard of care. Tenn.Code Ann. § 29-26-115(a).

Dr. Williams moved for summary judgment in part on the basis that one of Ms. Shipley’s proffered experts, Dr. Rerych, was unfamiliar with the standard of care set forth in subsection (a)(1).2 This subsection states that the plaintiff must prove “[t]he recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred.” Tenn. Code Ann. § 29-26-115(a)(l) (“the locality rule”). Ms. Shipley has the burden of proving this element “by a preponderance of the evidence.” TenmCode Ann. § 29-26 — 115(d). A jury is instructed concerning its role in this determination.3 TenmCode Ann. § 29-26-115(d). The trial court may *559not substitute its judgment for that of the trier of fact.

The trial court ruled that Dr. Williams was entitled to summary judgment because the testimony of Dr. Rerych was inadmissible pursuant to the locality rule. To be admissible, Dr. Rerych’s expert testimony must comply with Tennessee Rules of Evidence 702 and 703. Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn.2005).

Tennessee Rule of Evidence 702 provides that an expert witness may testify in the form of an opinion if the witness’s specialized knowledge “will substantially assist the trier of fact.” Tennessee Rule of Evidence 703 permits an expert witness to base his opinion on facts or data “perceived by or made known to the expert at or before the hearing.” Furthermore, Rule 703 allows an expert witness to develop an opinion based on facts or data that are inadmissible, but the rule instructs courts to disallow an expert’s opinion based on facts or data that “indicate a lack of trustworthiness.” Tenn. R. Evid. 703.

We will reverse a trial court’s determination as to the admissibility of expert testimony only if the trial court abused its discretion, for example, by applying an incorrect legal standard and thereby prejudicing the complaining party. Brown, 181 S.W.3d at 273. In this ease, the trial court found that Dr. Rerych “does not satisfy the requirements of Tenn.Code Ann. § 29-26-115.” The trial court elaborated, “Dr. Rerych did not demonstrate familiarity with the standard of care for general surgeons in Nashville, Davidson County, Tennessee,” where Dr. Williams practiced at the time of Ms. Shipley’s injury. “Nor did he demonstrate that Ashe-ville, North Carolina,” the community in which Dr. Rerych practiced at the time of Ms. Shipley’s injury, “is a similar community to Nashville, Tennessee.”

Dr. Rerych’s competency to testify pursuant to Tennessee Code Annotated section 29-26-115(b) was undisputed. The pertinent issue therefore is whether Dr. Rerych’s opinion of the standard of care in Nashville or a similar community was based on sufficiently trustworthy facts or data so that it would substantially assist the trier of fact in determining the applicable standard of care. Tenn.Code Ann. § 29 — 26—115(a)(1); Tenn. R. Evid. 702, 703. As stated in the majority opinion, Dr. Rerych testified in his deposition as to specific facts supporting his assertion that he is familiar with the applicable standard of care. See Tenn. R. Civ. P. 56.06. It is not necessary that the trial court agree with Dr. Rerych. It is only necessary that the trial court find that Dr. Rerych has the appropriate qualifications pursuant to Tennessee Code Annotated section 29-26-115(b) and Tennessee Rule of Evidence 702 and that he bases his opinion on trustworthy facts or data as required by Tennessee Rule of Evidence 703. The trial court must bear in mind that Dr. Rerych’s testimony would be subject to “vigorous cross-examination and countervailing proof.” Brovm, 181 S.W.3d at 275. The trier of fact, not the trial court, bears the responsibility of weighing expert testimony and resolving “legitimate but competing expert opinions.” Id.

Applying Tennessee Rules of Evidence 702 and 703 and Brown, Dr. Rerych’s testimony will substantially assist the trier of fact in determining the element set forth in section 29-26-115(a)(l), the standard of care in Nashville or a similar community. The trial court failed to recognize the interplay of the Rules of Evidence and section 29-26-115(a)(l). In applying an incorrect legal analysis, the trial court precluded Ms. Shipley from presenting competent evidence of her medical malpractice claim to a trier of *560fact. The trial court therefore abused its discretion.

The sky has not fallen. The majority opinion has not charted new territory. Instead, it has applied an abuse of discretion standard in reviewing the trial court’s exclusion of Dr. Rerych’s opinion and has determined, correctly, that the trial court erred.

WILLIAM C. KOCH, JR., J.,

concurring in part and dissenting in part.

We originally granted the application for permission to appeal in this case to address a question regarding summary judgments in medical malpractice cases that was left unanswered in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn.2008). That question is whether a defendant in a medical malpractice case who does not present evidence that his or her conduct complied with the applicable standard of care is entitled to a summary judgment when he or she demonstrates that the expert witness or witnesses the plaintiff plans to present at trial do not satisfy the requirements of Tenn.Code Ann. § 29-26-115 (Supp.2010).1

In this case, both the trial court and the Court of Appeals, using rules and principles that have traditionally been employed in cases of this sort, determined that the plaintiffs two “standard of care” experts did not satisfy the requirements of Tenn. Code Ann. § 29-26-115. The Court now reverses those decisions, but not on the ground that the defendant did not present evidence that her conduct was consistent with the standard of care. The Court’s decision rests on (1) a substantial alteration of the standard of review of summary judgments based on the inadmissibility of evidence relating to an essential element of the nonmoving party’s case and (2) a significant relaxation of the “locality rule” in Tenn.Code Ann. § 29-26-115.

I find no legal or logical basis for changing the standard of review or for relaxing the requirements of Tenn.Code Ann. § 29-26-115. The motion for summary judgment at issue in this case was filed four years after the complaint was filed. By that time, the plaintiff had been given over two years to identify qualified “standard of care” experts, the discovery of the parties and the experts had been completed, and the case had been set for trial. Reviewing this record based on the standards traditionally used to review cases of this sort, I would find that both of the plaintiffs experts failed to satisfy the requirements of the locality rule and thus that the defendant demonstrated that she was entitled to a judgment as a matter of law. By establishing that the plaintiffs standard of care experts were not competent to testify, she affirmatively negated an essential element of the plaintiffs case.

I.

In mid-January 2001, Donna Faye Ship-ley underwent emergency surgery at Summit Medical Center in Nashville for a ruptured colon. The surgery was performed by Dr. Robin Williams, a general surgeon practicing in Nashville. Part of the procedure included the construction of a temporary ileostomy.2 During the months fol*561lowing her surgery, Ms. Shipley returned to the hospital several times because of infections associated with the ileostomy. Ms. Shipley remained under the care of Dr. Williams.

On Saturday, November 17, 2001, Ms. Shipley telephoned Dr. Williams complaining of abdominal pain and a sore throat. Dr. Williams instructed Ms. Shipley to make an office appointment for Tuesday, November 20, 2001, and to contact her before Tuesday if the pain worsened or if she developed a fever. Ms. Shipley telephoned Dr. Williams on Sunday, November 18, 2001, complaining of increased pain and a 102° fever. Dr. Williams instructed Ms. Shipley to go to the emergency room at Summit Medical Center and then alerted the emergency room staff that Ms. Shipley was en route.

Dr. Leonard A. Walker, III examined Ms. Shipley in the emergency room. During Ms. Shipley’s lengthy stay in the emergency room, Dr. Walker ordered a number of tests, including a CT scan and a chest X-ray. Dr. Walker ruled out strep throat and pneumonia and saw no signs of sepsis. However, because Ms. Shipley appeared to be dehydrated, Dr. Walker ordered IV fluids. Even though he was unable to formulate a specific diagnosis, Dr. Walker was concerned that Ms. Shipley “was developing some type of intra-abdominal problem” because of her abdominal pain and elevated white blood cell count.

Dr. Walker talked with Dr. Williams by telephone while Ms. Shipley was in the emergency room. Dr. Walker passed along the results of the laboratory tests, the CT scan, and the X-ray and also gave Dr. Williams his impression of Ms. Ship-ley’s condition based on his examination. When Dr. Walker stated that Ms. Shipley should be re-examined, Dr. Williams told him that she would be happy to see Ms. Shipley in her office. Because Ms. Shipley was dehydrated, Dr. Williams asked Dr. Walker to order a second bag of IV fluids before releasing her. Dr. Walker released Ms. Shipley from the emergency room after she received the additional IV fluids. He instructed her to rest, drink fluids vigorously, stay on a clear liquid diet for ten to twelve hours, and to contact Dr. Williams on Monday morning to arrange for an appointment.

Dr. Williams did not customarily see patients in her office on Monday. Accordingly, she understood that she would see Ms. Shipley in her office on Tuesday, November 20, 2001. However, for some reason not clearly explained in this record, Dr. Williams’s office made arrangements for Ms. Shipley to see her primary care physician on Wednesday, November 21, 2001. Unbeknownst to Dr. Williams, Ms. Shipley’s primary care physician contracted meningitis and could not see Ms. Ship-ley as planned. On the evening of November 21, 2001, Ms. Shipley returned to the Summit Medical Center emergency room. She was admitted to the hospital with sepsis and pneumonia.

On November 7, 2002, Ms. Shipley and her husband filed a medical malpractice suit in the Circuit Court for Davidson County against Drs. Williams and Walker and Summit Medical Center. They alleged that the physicians were negligent because they failed to admit Ms. Shipley to the hospital on November 18, 2001, and because Ms. Shipley “[got] the run around for several days” before she returned to the hospital on November 21, 2001. Ms. Shipley sought $3,000,000 in damages, and *562Mr. Shipley sought $500,000 in damages “for the loss of services and consortium of his wife.”

The Shipleys’ claims against Dr. Walker and Summit Medical Center fell by the wayside in relatively short order,3 and the case continued against Dr. Williams alone. The Shipleys deposed Dr. Williams on October 22, 2003. Less than one month later, on November 17, 2003, the trial court entered a case management and scheduling order directing the Shipleys to disclose their expert witnesses by February 2, 2004.4 On February 23, 2004, three weeks past the deadline, the Shipleys filed Tenn. R. Civ. P. 26.02(4) disclosures identifying Dr. Ronald A. Shaw, an emergency room physician practicing in Montgomery, Alabama, and Dr. Stephen K. Rerych, a general surgeon practicing in Asheville, North Carolina, as their “standard of care” experts. They also disclosed Dr. Gerald R. Donowitz, an internist with a sub-speciality in infectious diseases practicing in Char-lottesville, Virginia, as their “causation” expert.5

The trial court later extended the Ship-leys’ deadline to disclose experts to January 15, 2005 and Dr. Williams’s disclosure deadline to March 1, 2005. In an effort to meet the deposition deadline, Dr. Donowitz was deposed on July 20, 2005. Dr. Rer-ych’s deposition was taken on January 17, 2006, and Dr. Shaw’s deposition was taken on February 27, 2006.

On April 10, 2006, the trial court entered an agreed order setting the case for trial on October 30, 2006.6 On June 22, 2006, Dr. Williams filed a motion for partial summary judgment seeking dismissal of the claim that she had been negligent for failing to admit Ms. Shipley to the hospital on November 18, 2001. The trial court entered an order on September 1, 2006, granting the motion and dismissing this claim.

On September 11, 2006, the trial court entered a case management and scheduling order requiring all dispositive motions to be docketed to be heard on or before January 26, 2007. Accordingly, on December 1, 2006, Dr. Williams filed a “motion for summary judgment to exclude Stephen Rerych, M.D[J and Ronald Shaw, M.D.” (capitalization omitted). This motion was accompanied by a statement of undisputed facts and a memorandum of law and was set to be heard on January 12, 2007. In their response to the motion, the Shipleys admitted the facts in Dr. Williams’s statement of undisputed facts for the purpose of the motion.

The trial court heard Dr. Williams’s motion for summary judgment on January 17, 2007. On February 6, 2007, the court *563entered an order granting summary judgment. The order stated that Dr. Williams’s statement of undisputed acts would be deemed admitted because it was unopposed and that the “Plaintiffs testifying experts ... do not meet the requirements of Tenn.Code Ann. § 29-26-115 and will not substantially assist the trier of fact pursuant to Tenn. R. Evid. 702 and 703.”7

Ms. Shipley filed a Tenn. R. Civ. P. 59.04 motion to alter or amend on March 8, 2007. Attached to this motion were the affidavits of two new “standard of care” experts.8 She also complained that the trial court had not explained its reasons for granting the summary judgment and requested the trial court to set a new trial date.

On May 10, 2007, the trial court filed “findings of fact and conclusions of law.” (capitalization omitted). The court explained the basis for its February 6, 2007 order by pointing out that “Dr. Stephen Rerych[] does not satisfy the requirements of Tenn.Code Ann. § 29-26-115. Dr. Rerych did not demonstrate familiarity with the standard of care for general surgeons in Nashville, Davidson County, Tennessee. Nor did he demonstrate that Ash[e]ville, North Carolina is a similar community to Nashville, Tennessee.” With regard to Dr. Ronald Shaw, the trial court explained that “Dr. Ronald Shaw[] does not satisfy the requirements of Tenn. Code Ann. § 29-26-115. Dr. Ronald Shaw does not practice in a specialty that is relevant to the standard of care issues in this ease.” The trial court also denied Ms. Shipley’s motion to alter or amend.

Ms. Shipley filed a timely notice of appeal. The Court of Appeals filed its opinion on August 14, 2009. Shipley v. Williams, No. M2007-01217-COA-R3-CV, 2009 WL 2486199 (Tenn.Ct.App. Aug. 14, 2009). The court affirmed the trial court’s decision that Dr. Shaw was not qualified to give an opinion regarding Dr. Williams’s standard of care. Shipley v. Williams, 2009 WL 2486199, at *5. It also affirmed the trial court’s decision that Dr. Rerych could not render a standard of care opinion because he had failed to prove that the medical communities of Asheville, North Carolina and Nashville, Tennessee are similar. Shipley v. Williams, 2009 WL 2486199, at *5.

Notwithstanding these conclusions, the Court of Appeals reversed the trial court’s summary judgment. The court decided that the claim based on Dr. Williams’s failure to admit Ms. Shipley to the hospital on November 18, 2001 should not have been dismissed because Dr. Williams had relied solely on Dr. Rerych’s testimony that the trial court later found to be inadmissible. The court reasoned that without Dr. Rerych’s testimony, Dr. Williams had failed to present proof negating an essential element of Ms. Shipley’s “failure to admit” claim. Shipley v. Williams, 2009 WL 2486199, at *6.

The intermediate appellate court then turned its attention to Ms. Shipley’s remaining negligence claims.9 The court de*564termined that Dr. Williams was not entitled to a summary judgment on these claims because she had failed to negate an essential element of Ms. Shipley’s case and, therefore, that the burden never shifted back to Ms. Shipley to demonstrate the existence of a dispute of material fact warranting a trial. The court based its decision on its conclusions that (1) the excerpts of Dr. Williams’s deposition filed in support of her summary judgment did not address her own familiarity with the applicable standard of care and whether she complied with it and (2) the affidavit and deposition excerpts of Dr. Walker likewise did not address Dr. Williams’s standard of care and whether she complied with it. Shipley v. Williams, 2009 WL 2486199, at *7.

In her Tenn. R.App. P. 11 application for permission to appeal, Dr. Williams asserted (1) that the Court of Appeals had erred by concluding that she had relied on the opinions of Drs. Rerych and Shaw to support her motion for summary judgment and (2) that the court had also erred by failing to find that, by disqualifying Ms. Shipley’s two “standard of care experts after the deadline for disclosing experts had passed,” she had successfully shown that Ms. Shipley could not prove an essential element of her claim at trial. In her answer to Dr. Williams’s Tenn. R.App. P. 11 application, Ms. Shipley insisted that the Court of Appeals had erred by failing to consider the testimony of Drs. Rerych and Shaw in a light most favorable to her.

II.

The principles governing summary judgment practice in Tennessee have been under renewed scrutiny of late. As a result, the Court has significantly refocused the burden of persuasion standards, as well as the requirements that must be met before a summary judgment can be granted. These judicially wrought changes have marginalized the utility of summary judgment proceedings as “screening device[s] ... to identify those cases that are not trial-worthy.”10

The Court’s recent decisions have not, however, displaced the requirement in Tenn. R. Civ. P. 56.0611 that the evidence used to support or to oppose a motion for summary judgment must be admissible. Cox v. M.A. Primary & Urgent Care Clinic, 313 S.W.3d 240, 247 n. 5 (Tenn.2010); Green v. Green, 293 S.W.3d 493, 513 (Tenn.2009); Byrd v. Hall, 847 S.W.2d at 215-16. At the summary judgment stage, admissibility determinations focus principally on the content or substance of the *565evidence, not necessarily its form.12 Byrd v. Hall, 847 S.W.2d at 215-16; Roy v. City of Harriman, 279 S.W.3d 296, 299 (Tenn.Ct.App.2008); Messer Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 45 S.W.3d 588, 598 (Tenn.Ct.App.2001). To be admissible, evidence at the summary judgment stage must satisfy the requirements of the Tennessee Rules of Evidence, as well as any other requirements controlling the admissibility of particular types of evidence. Thus, evidence that would be substantively inadmissible at trial would likewise be inadmissible at the summary judgment stage.

Despite its protestations to the contrary, the Court’s opinion in this case, subtly but significantly, changes the standard used to review decisions regarding the admissibility of evidence used to support or to oppose summary judgment motions. Because decisions regarding the admissibility of evidence have customarily been viewed as discretionary, the appellate courts have reviewed them — no matter the context — using the deferential “abuse-of-discretion” standard. See generally Sanford v. Waugh & Co., 328 S.W.3d 836, 847 (Tenn.2010); Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn.2004). Even though we have used this standard to review decisions involving the admissibility of evidence in summary judgment proceedings, Martin v. Norfolk S. Ry., 271 S.W.3d 76, 87 (Tenn.2008), the Court has now diluted this standard by requiring courts to view the evidence in the light most favorable to the nonmoving party when deciding whether the nonmoving party’s evidence is admissible. The liberal construction of the evidence principle favoring nonmoving parties was never intended to apply to threshold decisions regarding the admissibility of the evidence.

In summary judgment proceedings, it is necessary to distinguish between questions involving the admissibility of evidence and questions involving the weight of the evidence. A summary judgment proceeding is not a substitute for a trial of disputed factual issues. CAO Holdings, Inc. v. Trost, 333 S.W.3d 73, 82 (Tenn.2010); Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn.1997). Because resolving factual disputes and weighing the evidence are the fact-finder’s prerogative, the courts may not weigh the evidence or resolve factual disputes in a summary judgment proceeding. Downs ex rel. Downs v. Bush, 263 S.W.3d 812, 815 (Tenn.2008); Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330, 337 (Tenn.2005); Rollins v. Winn Dixie, 780 S.W.2d 765, 767 (Tenn.Ct.App.1989).

On the other hand, issues involving the admissibility of evidence are not questions addressed to the jury or the fact-finder. These questions are addressed to the court. State v. Housler, 193 S.W.3d 476, 489 (Tenn.2006); Currier v. Bank of Louisville, 45 Tenn. (5 Cold.) 460, 462 (1868); Godbee v. Dimick, 213 S.W.3d 865, 882 (Tenn.Ct.App.2006); see also Tenn. R. Evid. 104(a). In this regard, the courts protect the integrity of the fact-finding process by acting as gatekeepers to assure that the fact-finder’s decision is based only on admissible evidence. State v. Scott, 275 S.W.3d 395, 401 (Tenn.2009); Johnson v. John Hancock Funds, 217 S.W.3d 414, 425 (Tenn.Ct.App.2006).

An overwhelming majority of federal and state courts recognize that in summary judgment proceedings, issues involving the admissibility of evidence are sepa*566rate and distinct from issues involving the existence of genuine issues of fact sufficient to preclude a summary judgment. Gen. Electric Co. v. Joiner, 522 U.S. 136, 142-43, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Suhadolnik v. Pressman, 151 Idaho 110, 254 P.3d 11, 15 (2011) (quoting Dulaney v. St. Alphonsus Reg’l Med. Ctr., 137 Idaho 160, 45 P.3d 816, 819 (2002)). Accordingly, they use the “abuse-of-discretion” standard when reviewing decisions involving the admissibility of evidence in the context of a summary judgment proceeding.13 At least until today, Tennessee’s courts have followed the majority rule.14

Because only admissible evidence can be used to support or to oppose a summary judgment motion, a trial court’s first order of business is to resolve all challenges to the admissibility of evidence. See Cox v. M.A. Primary & Urgent Care Clinic, 313 S.W.3d at 261 (holding that summary judgment for the defendants in a medical malpractice case was appropriate where the plaintiffs sole expert was not competent to testify about the standard of care). Evidence found to be inadmissible cannot be considered. However, the evidence found to be admissible may be considered in the light most favorable to the nonmoving party 15 when the trial court is deciding whether genuine issues of material fact exist or whether the party seeking the summary judgment is entitled to a judgment as a matter of law. The principle requiring liberal construction of the evidence in favor of the nonmoving party applies only to evidence that has been found to be admissible. Bozzi v. Nordstrom, Inc., 186 Cal.App.4th 755, 111 Cal.Rptr.3d 910, 915 (2010); Gem State Ins. Co. v. Hutchison, 145 Idaho 10, 175 P.3d 172, 175 (2007).

Most appellate courts use a combined standard of review in cases where the *567grant of a summary judgment is premised on an evidentiary ruling. First, they determine whether the trial court’s exclusion of the evidence was correct using the “abuse-of-discretion” standard commonly associated with evidentiary rulings. Second, they consider the trial court’s decision to grant the summary judgment de novo considering all of the admissible evidence in the light most favorable to the nonmov-ing party.16 At least until today, Tennessee’s courts have employed the same combined standard of review used by most of our federal and state counterparts. Jacobs v. Nashville Ear, Nose & Throat Clinic, 338 S.W.3d at 476; Dubois v. Haykal, 165 S.W.3d at 636-37; Wilson v. Patterson, 73 S.W.3d at 101; Ayers ex rel. Ayers v. Rutherford Hosp., Inc., 689 S.W.2d at 160; see also McDaniel v. Rustom, 2009 WL 1211335, at *6-7; Travis v. Ferraraccio, 2005 WL 2277589, at *5-6.

The combined standard of review traditionally used by Tennessee’s courts preserves the distinction between admissibility issues and issues regarding whether the party seeking a summary judgment is entitled to a judgment as a matter of law. It utilizes objective criteria that does not favor either party. Using the liberal review standard advocated by the Court today to decide admissibility questions relaxes the rules of evidence to favor the nonmoving party. The Court has not offered, and I cannot envision, cogent reasons for departing from existing practice or for tipping the scales in favor of the nonmoving party with regard to issues involving the admissibility of evidence.

III.

Tenn. R. Civ. P. 56 permits a party to seek a summary judgment on the ground that the nonmoving party cannot prove an essential element of a claim or defense at trial. Martin v. Norfolk S. Ry., 271 S.W.3d at 83-84; Hannan v. Alltel Publ’g Co., 270 S.W.3d at 6. A jury trial on a particular claim or defense is unnecessary whenever there is a complete failure of proof with regard to an essential element of a claim or defense. Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn.1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Byrd v. Hall, 847 S.W.2d at 213 (citing Celotex Corp. v. Catrett, 477 U.S. at 321-25, 106 S.Ct. 2548). As Judge Susano recently noted, “in seeking summary judgment, it is enough for a party to negate one element of a claim; it is not necessary that every element be negated. If any one element is negated, factual disputes as to [the] other elements are immaterial to the issue of summary judgment.” Jacobs v. Nashville Ear, Nose & Throat Clinic, 338 S.W.3d at 477.

Summary judgment motions have been employed in medical malpractice cases for decades.17 In cases where the testifying experts have been disclosed and discovery has been completed, it is now commonplace for parties to file a motion for sum*568mary judgment challenging the qualifications of an opposing party’s expert. In such a motion, the moving party asserts that the testimony of the challenged expert is inadmissible because the expert does not satisfy the applicable requirements of the Tennessee Rules of Evidence18 or of Tenn. Code Ann. § 29-26-115. Using the challenged expert’s affidavits, depositions, or other evidentiary materials in the record,19 the party seeking the summary judgment has the burden of demonstrating that the expert is not qualified to render an opinion.

Even though these motions raise eviden-tiary issues, they can be outcome-determinative if the trial court determines that the nonmoving party’s expert evidence regarding an essential element of a claim or defense is inadmissible. In cases in which the party seeking the summary judgment has also presented evidence regarding causation or the standard of care, successfully challenging the nonmoving party’s expert entitles the moving party to a judgment as a matter of law because it has “ ‘affirmatively negate[d] an essential element of the nonmoving party’s claim’ ”20 and because the remaining, and now uncontradicted, evidence supports the moving party’s claim or defense. In cases where the nonmoving party has not presented its own evidence and the deadlines for disclosing experts and taking discovery have passed — as they had in this case — successfully challenging the nonmoving party’s experts entitles the moving party to a judgment as a matter of law because it has successfully demonstrated that the “nonmoving party cannot establish an essential element of the claim at trial.”21

Some have insisted, as Ms. Shipley does in this case, that a party who seeks a summary judgment in a medical malpractice case cannot succeed without filing evi-dentiary materials of its own establishing that it is entitled to a judgment as a matter of law. They argue that merely casting doubt on the nonmoving party’s ability to prove an essential element of its case does not warrant a summary judgment.22 This assertion is overstated because it fails to take the procedural posture of the case into consideration.

The existence of a general scheduling order, or an order of similar import, plays a pivotal role in the fate of a nonmoving party’s claim or defense when challenged by a summary judgment motion. See Dykes v. City of Oneida, No. E2009-00717-COA-R3-CV, 2010 WL 681375, at *7 (Tenn.Ct.App. Feb. 26, 2010) (No Tenn. R.App. P. 11 application filed); see also McDaniel v. Rustom, 2009 WL 1211335, at *15 n. 6. If no scheduling order exists or if the deadlines for disclosure and discovery have not passed, a summary judgment motion asserting that the plaintiff cannot establish an essential element of its claim at trial would be premature. See Johnsey v. Northbrooke Manor, Inc., No. W2008-01118-COA-R3-CV, 2009 WL 1349202, at *569*9 n. 5 (Tenn.Ct.App. May 14, 2009) (No Tenn. R.App. P. 11 application filed). However, a similar motion, filed after the deadlines imposed in a scheduling order have passed, will succeed if the moving party is able to convince the trial court that the evidence upon which the plaintiff relies to prove an essential element of its claim or defense is inadmissible. McDaniel v. Rustom, 2009 WL 1211335, at *15 n. 6.

The trial court entered numerous scheduling orders in this case. Dr. Williams did not file her summary judgment motion challenging the qualifications of Drs. Rer-ych and Shaw until nine months after the taking of the last expert deposition. By that time, the deadline for taking depositions had been expired for more than one year, and the deadline for the disclosure of testifying experts had expired for almost two years. Under these circumstances, there can be no reasonable doubt that Dr. Williams would have been entitled to a summary judgment if she successfully demonstrated that the testimony of Drs. Rerych and Shaw was inadmissible. By the time Dr. Williams filed her summary judgment motion, the deadlines in the scheduling orders had long since passed.

IV.

Along with employing an admissibility analysis that tilts in favor of the nonmov-ing party, the Court also dilutes the locality rule in Tenn.Code Ann. § 29-26-115(a)(1) by placing more emphasis on national or regional standards of care than has heretofore been permitted in medical malpractice cases. Rather than requiring that attention be focused on the medical community in which the defendant physician practices or a similar community, the Court now invites reliance on a national or regional standard of care as a basis for establishing familiarity with the standard of care in the community in which the defendant physician practices or in a similar community. Neither the plain language of Tenn.Code Ann. § 29 — 26—115(a)(1) nor this Court’s prior interpretations of Tenn. Code Ann. § 29-26-115(a)(l) support this change in direction.

A.

Geographic considerations have always played a significant role in the analysis of standard of care and causation issues and expert witness qualification issues in medical malpractice cases. Well before the General Assembly addressed the subject in 1975, the courts had recognized that the conduct of physicians should be measured against the conduct of other physicians in the same or a similar location. Quinley v. Cocke, 183 Tenn. 428, 436, 192 S.W.2d 992, 995 (1946) (consideration limited to a “given locality”); Blankenship v. Baptist Mem’l Hosp., 26 Tenn.App. 131, 142-43, 168 S.W.2d 491, 495 (1942) (consideration limited to the “same neighborhood”).

A review of the decisions handed down prior to 1975 reflect a lack of uniformity regarding the weight that geographical considerations should be given in medical malpractice cases. Some decisions imposed strict “ ‘same’ locality” requirements; others employed “ ‘same or similar’ ” locality requirements; and still others appeared to impose no locality requirement at all. Joseph H. King, Jr., The Standard of Care and Informed Consent Under the Tennessee Medical Malpractice Act, 44 Tenn. L.Rev. 225, 258-59 (1977) (“King”). A review of these decisions also reflects that the courts were gradually de-emphasizing the importance of geographical considerations in medical malpractice cases. Ayers ex rel. Ayers v. Rutherford Hosp., Inc., 689 S.W.2d at 162 (quoting Scarborough v. Knoxville Orthopedic Clinic, *570No. 608 (Tenn.Ct.App. July 19, 1977) perm. app. denied (Tenn. Dec. 12, 1977)); McCay v. Mitchell, 62 Tenn.App. 424, 439, 468 S.W.2d 710, 718 (1970).

In 1975, the Tennessee General Assembly codified what we now refer to as the “locality rule” when it enacted the Medical Malpractice Review Board and Claims Act of 1975.23 As a result, the locality rule became a “creature of statute,” Chapman v. Bearfield, 207 S.W.3d 736, 740 (Tenn.2006), and the “hallmark of medical malpractice cases.” Andrew T. Wampler, Fly in the Buttermilk: Tennessee’s Desire to Dispense with Layperson Common Sense and the Medical Malpractice Locality Rule, 69 Tenn. L.Rev. 385, 422 (2002) (“Wampler”). Because the locality rule is now statutory, our task and obligation is to construe and apply it in a way that fully effectuates the General Assembly’s purpose without limiting or expanding the statute beyond its intended scope. Cf. Tuetken v. Tuetken, 320 S.W.3d 262, 268 (Tenn.2010); Nichols v. Jack Cooper Transp. Co., 318 S.W.3d 354, 359-60 (Tenn.2010); U.S. Bank, N.A. v. Tenn. Farmers Mut. Ins. Co., 277 S.W.3d 381, 386 (Tenn.2009).

Tenn.Code Ann. § 29-26-115(a)(l) embodies the “same or similar” community requirement adopted by some Tennessee courts prior to 1975. It plainly, clearly, and unequivocally requires experts offering opinions in medical malpractice cases to be licensed in Tennessee or in one of the eight states contiguous to Tennessee and to have practiced in one of those nine states during the year preceding the date of the alleged injury or wrongful act occurred. Similarly, it requires that these experts base their testimony on “[t]he recognized standard of accepted professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the claimant practices or in a similar community at the time the alleged injury or wrongful action occurred.” Tenn.Code Ann. § 29-26-115(a)(l).

The locality rule evolved from a belief that medical customs and practices vary depending on the particular area in which a physician practices. Sutphin v. Platt, 720 S.W.2d 455, 457 (Tenn.1986) (citing King, 44 Tenn. L.Rev. at 256). Numerous justifications have been offered for the rule over the years.24 Accordingly, this Court has held that “[tjhere is an undeniable legitimate state interest in assuring that doctors charged with negligence in this State receive a fair assessment of their conduct in relation to community standards similar to the one[s] in which they practice.” Sutphin v. Platt, 720 S.W.2d at 458.

*571To satisfy the requirements of Tenn. Code Ann. § 29-26-115(a)(l), an expert witness must “have knowledge of the standard of professional care in the defendant’s applicable community or knowledge of the standard of professional care in a community that is shozm to be similar to the defendant’s community.” Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn.2002). While complete lack of knowledge of the applicable community’s medical resources would preclude an expert from testifying, Mabon v. Jackson-Madison Cnty. Gen. Hosp., 968 S.W.2d 826, 831 (Tenn.Ct.App.1997), an expert need not be familiar with all the medical statistics of the applicable community. Ledford v. Moskowitz, 742 S.W.2d 645, 648 (Tenn.Ct.App.1987).

The focus of the inquiry should be on the expert’s knowledge of the standards of practice in the community in which the defendant physician practices or a similar community, not on national standards, regional standards, or even statewide standards. Kenzjon v. Handal, 122 S.W.3d at 762. Testimony involving national standards [and presumably regional or statewide standards] is no substitute for the evidence required by Tenn.Code Ann. § 29-26-115(a)(l). Robinson v. LeCorps, 83 S.W.3d at 724.

Expert witnesses cannot satisfy the requirements of TenmCode Ann. § 29-26-115(a)(1) simply by asserting that they are familiar with the standard of care in the defendant physician’s community or in a similar community. They must explain the basis for their familiarity with the defendant physician’s medical community. Williams v. Baptist Mem’l Hosp., 193 S.W.3d at 553; Stovall v. Clarke, 113 S.W.3d 715, 722-23 (Tenn.2003); Robinson v. LeCorps, 83 S.W.3d at 724-25; Kenyon v. Handal, 122 S.W.3d at 762. If they base their opinion on their familiarity with a medical community similar to the one in which the defendant physician practices, they must explain the basis not only for their understanding of the standard of care in the similar community but also for their belief that this community is similar to the community in which the defendant physician practices. See Robinson v. LeCorps, 83 S.W.3d at 725.

Just as it was over forty years ago, TenmCode Ann. § 29-26-115(a)(l) permits an expert to gain knowledge of the applicable standard of care “from sources and experience other than in the locality in which the cause of action arose.” McCay v. Mitchell, 62 Tenn.App. at 439, 463 S.W.2d at 718. Accordingly, I agree with the Court’s conclusion that the “personal, firsthand, or direct knowledge” requirement fashioned by the Court of Appeals in Allen v. Methodist Healthcare Memphis Hospitals, 237 S.W.3d 293, 296 (Tenn.Ct.App.2007) and Eckler v. Allen, 231 S.W.3d 379, 386 (Tenn.Ct.App.2006) goes too far. As the Court holds today, an expert in a medical malpractice case may educate himself or herself on the characteristics of the medical community in which the defendant physician practices or regarding the factual basis for concluding that the community with which the expert is personally familiar is similar to the medical community in which the defendant physician practices.

Demonstrating familiarity with the medical community in which the defendant physician practices is not insurmountably difficult. Chamber of Commerce demographic information about the community, social or recreational visits to the community, or simply extrapolating community standards from national or regional standards will not suffice. However, the required familiarity can be derived from, among other things, (1) attending medical school in Tennessee; (2) having internship, residency, or advanced specialty training in Tennessee; (3) formerly practicing in *572Tennessee; (4) teaching or presenting at seminars attended by Tennessee physicians; (5) attending continuing medical education or other practice-related seminars in Tennessee; (6) collaborating with physicians practicing in Tennessee on papers on relevant subjects that are published in professional journals; (7) participating in credentialing or licensing of Tennessee physicians or medical facilities; or (8) consulting on cases with Tennessee physicians.

In addition to the activities described in the preceding paragraph an expert retained to give an opinion in a medical malpractice case in Tennessee may (1) obtain information regarding the medical facilities and professionals practicing in the relevant area, (2) consult with physicians practicing in Tennessee regarding the relevant standard of care, (3) review the relevant articles and literature prepared by physicians practicing in Tennessee, or (4) tour the relevant facilities in the area.

B.

Applying the standards traditionally employed in cases of this sort, there is little question that the affidavit and deposition testimony of both Drs. Rerych and Shaw fails to demonstrate that they are sufficiently familiar with the standards of practice of general surgeons in Nashville or in a community similar to Nashville to be permitted to testify against Dr. Williams. Dr. Rerych conceded that most of his visits to the Nashville area were recreational. He could not remember the name of the community hospital he “toured” or anything specific about the hospital. While he testified that he had previously testified in one or two cases in Nashville and one case in the tri-city area, he provided little information regarding the nature of the cases, whether his qualifications to testify were challenged in any of these cases, or whether his testimony in these cases related to the standard of care for general surgeons.

Dr. Shaw’s knowledge of the standard of care of general surgeons in Nashville and the basis for his belief that the medical community in Montgomery, Alabama is similar to the medical community in Nashville is even weaker than Dr. Rerych’s. Dr. Shaw displayed no direct familiarity with the medical community in Nashville. He stated that he had never consulted on a case with a Nashville physician, and that while he had “interacted with a physician from Nashville,” he had “not done so on a frequent or permanent basis.” The basis for Dr. Shaw’s conclusion that the medical community in Montgomery, Alabama was similar to the medical community in Nashville was based on his belief (1) that “the medical diseases and conditions that we treat are similar,” (2) that “we’re in a similar part of the country,” (3) that “the case mix is similar,” and (4) that Montgomery and Nashville have “similar geography, similar natural history of disease, [and] similar patient populations.”

In addition, Dr. Shaw failed to explain how his emergency room practice enabled him to testify regarding the standard of care of a general surgeon with regard to scheduling appointments for patients recovering from thoracic surgery. In fact, Dr. Shaw stated in his deposition on several occasions that he was not giving an opinion regarding a general surgeon’s standard of care.

Based on my review of the testimony of Drs. Rerych and Shaw, I find no basis to conclude that either the trial court or the Court of Appeals abused their discretion by determining that these witnesses had failed to demonstrate that they satisfy requirements of Tenn.Code Ann. § 29-26-115(a)(1). I would also find that the Court of Appeals erred by reversing the trial court solely because Dr. Williams did not *573present evidence establishing that her treatment of Ms. Shipley was consistent with the standard of care of general surgeons practicing in the Nashville area. Accordingly, I would affirm the trial court’s decision to grant Dr. Williams’s motion for summary judgment.

STEELE, Chief Justice.

On December 28, 2006, Michael Dish-mon filed suit against nursing home staff members, Pasquale Fucci, M.D. and Bernie Schneider, PA-C alleging that both defendants had committed medical negligence that resulted in his father’s death. *341Before trial, a Superior Court judge dismissed the suit, stating that the plaintiffs Affidavit of Merit failed to comply with 18 Del. C. § 6853. The submitted affidavit sufficiently stated the expert’s qualification to proffer an opinion, as well as his opinion that the defendants breached their respective standards of care and that the breaches caused the injury. However, the plaintiff failed to adhere to the procedural step of enclosing a copy of the testifying expert’s curriculum vitae. Since this error was procedural, a proper exercise of the trial judge’s discretion would have permitted the later submission of the curriculum vitae. The Superior Court judge erroneously dismissed the complaint. Accordingly, we REVERSE.

I. FACTS AND PROCEDURAL HISTORY

The decedent, James L. Dishmon, was admitted to the Hockessin Hills nursing home on December 27, 2004. He suffered from various medical conditions, including heart problems, renal failure, diabetes, and a urinary tract infection. The following Friday, December 31, 2004, James Dish-mon died of acute coronary ischemia and coronary artery disease. At that time, Dr. Fucci served as James’ primary care physician and Schneider served as Dr. Fucci’s physician’s assistant.

Later, Michael Dishmon (“Dishmon”), brought an action under 10 Del. C. § 3701 et seq.1 seeking compensation for his father’s death on the theory that Dr. Fucci and Schneider committed medical negligence. Dishmon claimed that, despite his instructions, Fucci and Schneider put a “Do Not Resuscitate” order in place, and as consequence, the staff at Hockessin Hills made no effort to resuscitate James before his death.

On December 28, 2006, Dishmon filed his complaint in the Superior Court. At the same time, he also filed a Motion for Extension of Time to File an Affidavit of Merit, which a judge granted. Thereafter, Dishmon’s attorney timely filed an Affidavit of Merit, executed by Herbert Lee Muncie, Jr., M.D. Defendants Fucci and Schneider then filed a Motion to Review the affidavit in camera. On April 25, 2007, a Superior Court judge determined that Dr. Muncie’s Affidavit of Merit failed to comply with the requirements of 18 Del. C. § 6853, because: (1) the filing did not include a copy of Dr. Muncie’s curriculum vitae; (2) the affidavit failed to demonstrate that Dr. Muncie was sufficiently acquainted with the standard of care applicable to a physician’s assistant; and, (3) Dr. Muncie failed to articulate with adequate detail, his opinion that both defendants breached their respective standards of care, and that those breaches proximately caused the decedent’s death. The Superi- or Court judge, therefore, dismissed the case.

In response, Dishmon filed a Motion for Relief from Judgment on May 5, 2007, attaching the missing curriculum vitae. For reasons not apparent to this Court, the Superior Court failed to rule on the Motion until September 16, 2010, at which point the Court denied the motion for relief without providing reasons. Dishmon now appeals.

II. STANDARD OF REVIEW

The focus of our inquiry is whether the Superior Court judge erred by granting a motion to dismiss for failure to comply with the Delaware medical negligence statute. Questions of statutory interpreta*342tion are questions of law that this Court reviews de novo.2 We must, thus, determine whether the Superior Court erred as a matter of law in formulating or applying the legal principles of 18 Del. C. § 6853.

III. DISCUSSION

Dishmon challenges all grounds on which the Superior Court judge based its dismissal of the case. First, Dishmon contends that he satisfied all statutory requirements under 18 Del. C. § 6853. He argues that the affidavit sufficiently established Dr. Muncie’s familiarity with the standards of medical care applicable to each defendant. Dishmon additionally asserts that the affidavit adequately articulated Dr. Muncie’s expert opinion that both defendants breached their respective standards of care, and that in having done so, proximately caused Jones’ death. Secondly, Dishmon contends that the Superior Court judge erred by refusing to allow him time in which to submit Dr. Muncie’s curriculum vitae after the judge determined that the document did not accompany the Affidavit of Merit.

A. The Delaware medical negligence statute sets forth minimal procedural requirements.

The purpose of 18 Del. C. § 68533 is to “require that expert medical testimony be presented to allege a deviation from the applicable standard of care.”4 The General Assembly enacted this provision to reduce the filing of merit-less medical negligence claims.5 The statute operates as a prophylactic measure to ensure the efficient administration of judicial resources. By requiring an Affidavit of Merit in addition to the typical filing requirements, Section 6853 simply obliges a plaintiff to make a prima facie showing that there are reasonable grounds to believe that negligence occurred and caused an injury.6 Accordingly, while the requirements of Section 6853 play an important role in preventing frivolous claims, they are purposefully minimal.7

In order to satisfy the prima facie burden, an Affidavit of Merit must only contain an expert’s sworn statement that medical negligence occurred, along with confirmation that he or she is qualified to proffer a medical opinion. By signing an affidavit, an affiant is under the penalty of perjury for any false assertion.8 Owing to the risk involved, courts in the initial review should assume that statements in affidavits of merit are reliable without additional evidentiary support. Thus, an expert may comply with Section 6853 by providing an affidavit of merit that *343tracks the statutory language. The General Assembly did not intend a minitrial at this stage of the litigation. Dr. Muncie, therefore, did not need to supplement his affidavit testimony regarding his qualifications as an expert and his medical opinion with additional evidentiary support.

On the issue of Dr. Muncie’s qualifications, the defendants argue that his Affidavit of Merit failed to comply with 18 Del. C. § 6853 because it did not demonstrate that the expert was sufficiently acquainted with the standard of care applicable to a physician’s assistant.9 We disagree.

It is well established in Delaware that a physician may offer an opinion on the standard of care of a non-physician, such as a physician’s assistant, nurse-midwife, or nurse.10 A physician need only establish his or her familiarity with the degree of skill ordinarily employed by a practitioner of the type about which he or she will be offering an opinion, in order for the opinion to be judicially acceptable.11 Section 6854 reiterates this standard.12 Qualifying as an expert for the purposes of the statute does not require meticulous validation of the proffered expert’s proficiency in a specific medical field. In this case, the expert needed only to establish his familiarity with the standard of care applicable to the area of medicine practiced by both defendants in order to present a valid opinion capable of passing Affidavit of Merit review.

In his Affidavit of Merit, Dr. Muncie affirmed that he is board certified in family practice and that “in the 29 years immediately preceding the alleged negligent act, [he] was engaged in the treatment of patients and/or in the teaching/academic side of medicine or similar field of medicine as the defendants.” Although his statement deviated slightly from the wording of Section 6853, it is the functional equivalent of the statutory language. In accordance with the minimal requirements of Section 6853, Dr. Muncie did not need to supplement his statement with evidentiary support. Thus, we agree with Dishmon that the Affidavit of Merit sufficiently establishes that Dishmon’s expert was qualified to testify as an expert on the standard of care applicable to both defendants.

Regarding the substance of Dr. Muncie’s opinion, the defendants contend that his Affidavit fails to comply with the requirements of Section 6853 because it does not distinguish between the standards of care applicable to the defendants, and further, because it does not demonstrate how those applicable standards were breached. We agree with Dishmon that the plain language of the statute requires neither.

*344Section 6853 requires the Affidavit of Merit to “set forth the expert’s opinion that there are reasonable grounds to believe that the applicable standard of care was breached by the named defendants) and that the breach was a proximate cause of injury(ies) claimed in the complaint.” 13 This Section requires that a qualified medical professional review a plaintiffs claim, to determine and then to state that there are reasonable grounds to believe that the health care provider breached the applicable standard of care that caused the injuries claimed in the complaint.14 Medical experts need not couch their opinions in legal terms, state the facts that underly their determination, or to articulate the standard of care with a high degree of legal precision or “magic words.” 15

After reviewing Dr. Muncie’s Affidavit, we find that the requirements of Section 6853 have been met. His Affidavit reads:

[T]here are reasonable grounds to believe that medical negligence was committed by Pasquale Fucci, M.D. and Bernie Schneider, PA-C in the treatment and care of James Dishmon and that breach was the proximate cause of the injuries sustained and Mr. Dish-mon’s death.

It is clear that upon his review of the facts, Dr. Muncie concluded there was a causal connection between the defendants’ breach and the decedent’s death. Again, we acknowledge that although the expert’s statement does not mirror Section 6853 exactly, his statement is the functional equivalent of the statutory language, and thus, satisfies the requisite proximate cause standard. No additional evidentiary support is needed to supplement Dr. Mun-cie’s opinion at this stage of the litigation.

Upon review of these issues, we find that the Superior Court judge erred by holding that Dr. Muncie’s opinion did not comport with the prima facie evidentiary requirements of Section 6853.

B. The Superior Court has discretion to excuse procedural deficiencies in appropriate circumstances where Delaware public policy outweighs dismissal.

Dishmon’s final claim is that the Superior Court judge erred by dismissing the suit because Dishmon failed to include his expert’s cumculum vitae with the Affidavit of Merit. We agree that Section 6853 requires a plaintiff to supplement his or her expert’s affidavit of merit with a cumculum vitae, and that failure to do so constitutes non-compliance. We are unconvinced, however, that the trial judge would have ordered dismissal had he initially recognized the sufficiency of the Affidavit on its merits. In light of our holding that the Affidavit was sufficient on its merits, we conclude, as a matter of law, that trial courts must give weight to Delaware’s well known public policy that favors permitting a litigant to have his day in court. In these circumstances, the absent curriculum vitae should have been viewed as a procedural deficiency, but not an independent basis for dismissal.

In applicable part, Section 6853 requires a plaintiff to supplement an affidavit of merit with the purported expert’s cumcu-lum vitas.16 From the plain language of Section 6853 it is clear that where a party fails to file an Affidavit of Merit with the Superior Court, the Court will not enter*345tain the case.17 The statute does not, however, contemplate that affidavits that are initially incomplete are automatically subject to outright dismissal. No language in Section 6853 or in any court rule so provides or even addresses the situation in which a party files an affidavit without the expert’s curriculum vitae.

In the absence of a contrary statute or court rule, the Superior Court judge has discretion to choose the appropriate sanction for noncompliance with Section 6853. In Drejka, we recently cautioned that judges should be reluctant to dismiss cases for procedural mistakes by counsel except as a last resort.18 A motion to dismiss should be granted if no other sanction would be more appropriate under the circumstances.19 The following factors bear importantly on whether or not a trial judge’s dismissal of a complaint constitutes an abuse of discretion:

(1) the extent of the party’s personal responsibility;

(2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery;

(3) a history of dilatoriness;

(4) whether the conduct of the party or the attorney was willful or in bad faith;

(5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and

(6)the meritoriousness of the claim or defense.20

Those factors, applied here, lead us to conclude that a failure to enclose the curriculum vitae in a sealed envelope does not, by itself, justify dismissal. No facts suggest that Dishmon was personally responsible for his attorney’s failure to include Dr. Muncie’s curriculum vitae with the Affidavit of Merit. An Affidavit of Merit is not discoverable under the statute; therefore, the defense would not be prejudiced by a tardy filing.21 Although Dishmon did request a 60-day extension in which to file an affidavit, there is no evidence of any history of dilatoriness. No evidence suggests that Dishmon’s attorney acted in bad faith. The trial judge never previously imposed any other or lesser sanctions during the course of the proceedings, so there is no reasonable indication that a lesser sanction would have been ineffective. Lastly, on the merits, Dr. Muncie’s Affidavit of Merit established the necessary prima facie showing of medical negligence. Therefore the claim, at the very least, is not meritless, and is suitable for litigation. Accordingly, we find that the Superior Court judge should have exercised discretion to allow the plaintiff a reasonable time to file his expert’s curriculum vitae to avoid a dismissal of the complaint.22

*346To reiterate, Delaware has a strong public policy that favors permitting a litigant a right to a day in court.23 Courts should apply rules with “liberal construction because of the underlying public policy that favors a trial on the merits, as distinguished from a judgment based on a default.”24

Even if this appeal were focused on the Superior Court’s denial of Dishmon’s Super. Ct. Civ. R. 60(b) motion, rather than on the initial dismissal of the case, we would arrive at the same conclusion. Rulings on Rule 60(b) motions are reviewed under a three-pronged test, although only the first prong — whether the moving party’s conduct, which resulted in dismissal, was the product of excusable neglect25 — is relevant here.26 Under Rule 60(b) “excusable neglect exists if the moving party has valid reasons for the neglect — reasons showing that the neglect may have been the act of a reasonably prudent person under the circumstances.”27 “In determining whether the moving party’s neglect was ‘excusable,’ all suirounding circumstances may be considered.” 28 However, we also recognize that a “mere showing of negligence or carelessness without a valid reason may be deemed insufficient.”29

Dishmon’s attorney argues that under the circumstances, his failure to timely file Dr. Muncie’s cumculum vitae falls within the purview of excusable neglect. Therefore, the Superior Court judge should have granted him an extension in which to become fully compliant with the requirements of the statute. We agree.

Under 18 Del. C. § 6853(a)(1), an expert’s affidavit and an attached curriculum vitae must be filed with the court in a sealed envelope labeled “CONFIDENTIAL” and is subject to review only by a Superior Court judge.30 The logical inference is that once the envelope is sealed, a prudent person would refrain from breaking the seal to review the envelope’s contents where he or she believes all the necessary documents are enclosed. It is reasonable to infer that Dishmon’s attorney did not open the sealed envelope containing Dr. Muncie’s Affidavit of Merit because the attorney reasonably believed that the expert’s cumculum vitae was also enclosed. In drawing that inference, we cannot ignore the reality of how work *347is often delegated in a law office. Ministerial tasks, such as gathering and preparing materials to be filed in anticipation of litigation, are not uncommonly reserved for administrative staff. In that environment, an attorney who fails to file all required documents is not necessarily careless, but rather may have mistakenly relied on someone else to properly prepare and seal within the envelope all materials required by Section 6853. Therefore, in this case counsel’s error should have been construed as excusable neglect.

In summary, considerations of sound Delaware public policy lead us to conclude that the missing curriculum vitae, standing alone, was an insufficient basis to dismiss the plaintiffs complaint.

C. An additional matter.

At the periphery of this case is the highly regrettable fact that we are now being asked, in 2011, to rule on a judgment dismissing a complaint that was filed in 2006. Clearly, judicial processes are what delayed the Superior Court’s final judgment. Inexplicably, however, the unconscionably delayed final judgment contained no reasoning. It is well settled that the legal requirement of supplying reasons for a judicial decision is a matter of judicial ethics and of law.31 Thus, we urge trial judges to supply a full explanation supporting their denials of litigants’ motions for relief.

IV. CONCLUSION

The Superior Court erred by dismissing Dishmon’s complaint. The Delaware medical negligence statute sets forth minimal requirements that do not oblige experts to bolster their sworn statements with supplemental evidence. Furthermore, although submission of an expert’s curriculum vitae is mandatory under 18 Del. C. § 6853(c), a trial judge may, in the exercise of sound discretion grant relief allowing compliance "with this requirement. In light of Delaware public policy and the surrounding circumstances, we find that the dismissal of the initial complaint was too harsh a sanction. The judgment of Superior Court is reversed and remanded for proceedings consistent with this Opinion. Jurisdiction is not retained.

The opinion of the Court was delivered by

POLLOCK, J.

This appeal presents the question whether the doctrine of informed consent requires a physician to obtain the patient’s consent before implementing a nonsurgical course of treatment. It questions also whether a physician, in addition to discussing with the patient treatment alternatives that the physician recommends, should discuss medically reasonable alternative courses of *29 treatment that the physician does not recommend. We hold that to obtain a patient’s informed consent to one of several alternative courses of treatment, the physician should explain medically reasonable invasive and noninvasive alternatives, including the risks and likely outcomes of those alternatives, even when the chosen course is noninvasive.

The Law Division concluded that plaintiff, Jean Matthies, could not assert a cause of action for breach of the duty of informed consent against defendant, Dr. Edward D. Mastromonaco. According to the court, a physician must secure a patient’s informed consent only to invasive procedures, not to those that are noninvasive. Consequently, the court prevented Matthies from presenting evidence that Dr. Mastromonaco had not obtained her informed consent to use bed-rest treatment, which is noninvasive, instead of surgery. On the issue whether Dr. Mastromonaco had committed malpractice by failing to perform surgery on Matthies, the jury returned a verdict of no cause for action. The Appellate Division reversed, holding that the doctrine of informed consent applies even when the course of treatment implemented by the physician is noninvasive. 310 N.J.Super. 572, 709 A.2d 238 (App.Div.1998) We granted Dr. Mastromonaco’s petition for certification, 156 N.J. 406, 719 A.2d 638 (1998), and now affirm.

I.

In 1990, Matthies was eighty-one years old and living alone in the Bella Vista Apartments, a twenty-three-story senior citizen residence in Union City. On August 26, 1990, she fell in her apartment and fractured her right hip. For two days, she remained undiscovered. When found, she was suffering the consequences of a lack of prompt medical attention, including dehydration, distended bowels, and confusion. An emergency service transported her to Christ Hospital in Jersey City. She was treated in the emergency room and admitted to the intensive care unit.

*30 One day after Matthies’s admission, her initial treating physician called Dr. Mastromonaco, an osteopath and board-certified orthopedic surgeon, as a consultant. Dr. Mastromonaco reviewed Matthies’s medical history, condition, and x-rays. He decided against pinning her hip, a procedure that would have involved the insertion of four steel screws, each approximately one-quarter inch thick and four inches long.

Dr. Mastromonaco reached that decision for several reasons. First, Matthies was elderly, frail, and in a weakened condition. Surgery involving the installation of screws would be risky. Second, Matthies suffered from osteoporosis, which led Dr. Mastro-monaco to conclude that her bones were too porous to hold the screws. He anticipated that the screws probably would loosen, causing severe pain and necessitating a partial or total hip replacement. Third, forty years earlier, Matthies had suffered a stroke from a mismatched blood transfusion during surgery. The stroke had left her partially paralyzed on her right side. Consequently she had worn a brace and essentially used her right leg as a post while propelling herself forward with her left leg. After considering these factors, Dr. Mastromonaco decided that with bed rest, a course of treatment that he recognized as “controversial,” Mat-thies’s fracture could heal sufficiently to restore her right leg to its limited function. He prescribed a “bed-rest treatment,” which consisted of complete restriction to bed for several days, followed by increasingly extended periods spent sitting in a chair and walking about the room.

Before her fall, Matthies had maintained an independent lifestyle. She had done her own grocery shopping, cooking, housework, and laundry. Her dentist of many years, Dr. Arthur Massarsky, testified that he often had observed Matthies climbing unassisted the two flights of stairs to his office. Matthies is now confined to a nursing home.

Matthies’s expert, Dr. Hervey Sicherman, a board-certified orthopedic surgeon, testified that under the circumstances, bed rest was an inappropriate treatment. He maintained that bed rest *31 alone is not advisable for a hip fracture unless the patient does not expect to regain the ability to walk. Essentially, he rejected bed rest except when the patient is terminally ill or in a vegetative state. Dr. Sicherman explained that unless accompanied by traction, the danger of treating a hip fracture with bed rest is that the fracture could dislocate. In fact, shortly after Matthies began her bed-rest treatment, the head of her right femur displaced. Her right leg shortened, and she has never regained the ability to walk. According to Dr. Sicherman, the weakness and porosity of Matthies’s bones increased the likelihood of this bad outcome. Even defendant’s expert, Dr. Ira Rochelle, another board-certified orthopedic surgeon, admitted that pinning Matthies’s hip would have decreased the risk of displacement. He nonetheless agreed with Dr. Mastromonaco that Matthies’s bones were probably too brittle to withstand the insertion of pins.

Dr. Mastromonaco’s goal in conservatively treating Matthies was to help her “get through this with the least complication as possible and to maintain a lifestyle conducive to her disability.” He believed that rather than continue living on her own, Matthies should live in a long-term care facility. He explained, “I’m not going to give her that leg she wanted. She wanted to live alone, but she couldn’t live alone---- I wanted her to be at peace with herself in the confines of professional care, somebody to care for her. She could not live alone.”

Matthies asserts that she would not have consented to bed rest if Dr. Mastromonaco had told her of the probable effect of the treatment on the quality of her life. She claims that Dr. Mastro-monaco knew that without surgery, she never would walk again. He did not provide her, however, with the opportunity to choose between bed rest and the riskier, but potentially more successful, alternative of surgery. Dr. Mastromonaco maintained that bed rest did not foreclose surgery at a later date.

A jury question existed whether Dr. Mastromonaco consulted either with plaintiff or her family about the possibility of surgery. The trial court permitted Dr. Mastromonaco to testify that he had *32 discussed surgical alternatives with Matthies, but that she had refused them because of her concern about the risks of a blood transfusion. Matthies’s daughter, Jean Kurzrok, who also spoke with Dr. Mastromonaco, testified that he had said that her mother did not need or want surgery. Kurzrok said that she told Dr. Mastromonaco, “Well, if she doesn’t need it, she doesn’t want it.” According to Ms. Kurzrok, Dr. Mastromonaco never discussed the treatment alternatives or their probable outcomes. Instead, he minimized the fracture, describing it as “just a little crack” that was “going to heal itself.”

Matthies remained at Christ Hospital until October 1990. She was then discharged to the Andover Intermediate Care Center, a residential nursing home in which she received physical therapy. While at Andover, Matthies was attended by several physicians, including orthopedic surgeons. Those doctors continued the conservative treatment begun by Dr. Mastromonaco. Matthies also saw psychiatrists and was treated at Andover for depression because she grew increasingly despondent over her continued inability to walk.

In January 1993, Matthies was transferred to the Castle Hill Health Care Center, another residential care facility. Except for hospital stays, she has remained at Castle Hill.

In June 1995, Matthies was admitted to Orange Hospital for knee surgery. She spent September to October 1995 at St. Francis Hospital following a hip replacement. Her hip replacement, five years after her fall, resulted in life-threatening complications, including serious blood clots and infections. Although she recovered, the bone density in her right femur could not support the hip implant. Consequently, her right femur broke below the implant, and she underwent a second hip replacement. Even after that procedure, however, the unequal lengths of Matthies’s legs have prevented her from walking. She is confined to a bed or chair and is completely dependent on others.

Matthies sued Dr. Mastromonaco on two theories. First, she claimed that he had deviated from standard medical care by failing *33 to pin her hip at the time of her injury. Second, she asserted that he negligently had failed to obtain her informed consent to bed rest as a treatment alternative. Specifically, Matthies contended that Mastromonaco had failed to disclose the alternative of surgery.

Dr. Mastromonaeo’s counsel argued that informed consent was irrelevant in a case in which the treatment administered was noninvasive. Accepting that argument, the trial court refused to charge the jury on the issue of lack of informed consent. It reasoned that the malpractice claim subsumed the claim for lack of informed consent. The court nevertheless permitted Dr. Mastro-monaco to testify that he had explained the surgical alternative to Matthies. As Dr. Mastromonaco explained, Matthies had said that she “did not want” surgery, because she was afraid of a blood transfusion. The trial court, however, prevented Matthies’s counsel from cross-examining Dr. Mastromonaco on that point.

The jury concluded that Dr. Mastromonaco, in deciding not to perform immediate surgery, had not deviated from the accepted standard of medical care. Accordingly, it returned a verdict of no cause for action on Matthies’s medical malpractice claim.

The Appellate Division reversed. 310 N.J.Super. at 572, 709 A.2d 238. Observing that New Jersey’s doctrine of informed consent is based not on battery, but on negligence, the court concluded that the doctrine applies to noninvasive, as well as invasive, procedures. Id. at 589-94, 709 A.2d 238. A physician has a duty to disclose information that will enable a patient “to consider and weigh knowledgeably the options available and the risk attendant to each.” Id. at 593, 709 A.2d 238 (citation omitted). At a minimum, Dr. Mastromonaco should have explained to Matthies the risks of bed rest and his reasons for recommending it as a course of treatment. Id. at 596, 709 A.2d 238. The court observed: “Defendant’s own testimony suggests that he made the decision to treat plaintiff conservatively after assessing her physical condition and determining that plaintiff would be better off in the care of others, i.e. that she could not live alone. As we have *34 held, this was not defendant’s decision to make.” Id. at 595, 709 A.2d 238.

In sum, the Appellate Division concluded that the trial court’s restriction on the presentation of evidence on Matthies’s informed consent claim also affected her medical malpractice claim. Id. at 599, 709 A.2d 238. Consequently, the court remanded for a new trial on both issues.

II.

Choosing among medically reasonable treatment alternatives is a shared responsibility of physicians and patients. To discharge their responsibilities, patients should provide their physicians with the information necessary for them to make diagnoses and determine courses of treatment. Physicians, in turn, have a duty to evaluate the relevant information and disclose all courses of treatment that are medically reasonable under the circumstances. Generally, a physician will recommend a course of treatment. As a practical matter, a patient often decides to adopt the physician’s recommendation. Still, the ultimate decision is for the patient.

We reject defendant’s contention that informed consent applies only to invasive procedures. Historically, the failure to obtain a patient’s informed consent to an invasive procedure, such as surgery, was treated as a battery. The physician’s need to obtain the consent of the patient to surgery derived from the patient’s right to reject a nonconsensual touching. Eventually, courts recognized that the need for the patient’s consent is better understood as deriving from the right of self-determination. Canesi v. Wilson, 158 N.J. 490, 503-04, 730 A.2d 805 (1999); Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914). A shrinking minority of jurisdictions persist in limiting informed consent actions to invasive procedures. In those jurisdictions, battery survives as the appropriate cause of action. See, e.g., Karlsons v. Guerinot, 57 A.D.2d 73, 394 N.Y.S.2d 933, 939 (1977) (limiting application of informed consent to “those situations *35 where the harm suffered arose from some affirmative violation of the patient’s physical integrity such as surgical procedures, injections or invasive diagnostic tests”); Morgan v. MacPhail, 550 Pa. 202, 704 A.2d 617, 619 (1997) (stating that informed consent in Pennsylvania “has not been required in cases involving nonsurgical procedures”). Most jurisdictions view the failure to obtain a patient’s informed consent as an act of negligence or malpractice, not battery. See, e.g., Joan P. Dailey, The Two Schools of Thought and Informed Consent Doctrines in Pennsylvania: A Model For Integration, 98 Dick. L.Rev. 713, 727-28 & n. 101 (stating battery basis recognized in only minority of jurisdictions, for example, Georgia, Pennsylvania, and Virginia); Paula Walter, The Doctrine of Informed Consent: To Inform or Not To Inform?, 71 St. John’s L.Rev. 543, 543, 558-59 (1997) (noting that two 1980 cases moved informed consent doctrine of New York, one of few remaining battery jurisdictions, toward theory of negligence).

The rationale for basing an informed consent action on negligence rather than battery principles is that the physician’s failure is better viewed as a breach of professional responsibility than as a nonconsensual touching. Baird v. American Med. Optics, 155 N.J. 54, 70-71, 713 A.2d 1019 (1998); Largey v. Rothman, 110 N.J. 204, 207-08, 540 A.2d 504 (1988). As we have stated, “Informed consent is a negligence concept predicated on the duty of a physician to disclose to a patient information that will enable him to ‘evaluate knowledgeably the options available and the risks attendant upon each’ before subjecting that patient to a course of treatment.” Perna v. Pirozzi, 92 N.J. 446, 459, 457 A.2d 431 (1983); see also Kaplan v. Haines, 96 N.J.Super. 242, 257, 232 A.2d 840 (App.Div.1967), aff'd o.b., 51 N.J. 404, 241 A.2d 235 (1968) (sanctioning negligence-view, lack-of-informed-consent tort twenty years prior to Largey). Analysis based on the principle of battery is generally restricted to cases in which a physician has not obtained any consent or has exceeded the scope of consent. 3 David W. Louisell & Harold Williams, Medical Malpractice §§ 22.02, 22.03 (1999). The essential difference in analyzing in *36 formed consent claims under negligence, rather than battery-principles, is that the analysis focuses not on an unauthorized touching or invasion of the patient’s body, but on the physician’s deviation from a standard of care.

In informed consent analysis, the decisive factor is not whether a treatment alternative is invasive or noninvasive, but whether the physician adequately presents the material facts so that the patient can make an informed decision. That conclusion does not imply that a physician must explain in detail all treatment options in every case. For example, a physician need not recite all the risks and benefits of each potential appropriate antibiotic when writing a prescription for treatment of an upper respiratory infection. Conversely, a physician could be obligated, depending on the circumstances, to discuss a variety of treatment alternatives, such as chemotherapy, radiation, or surgery, with a patient diagnosed with cancer. Distinguishing the two situations are the limitations of the reasonable patient standard, which need not unduly burden the physician-patient relationship. The standard obligates the physician to disclose only that information material to a reasonable patient’s informed decision, Largey, supra, 110 N.J. at 211-12; , 540 A.2d 504 3 Louisell & Williams, supra, § 22.03(2). Physicians thus remain obligated to inform patients of medically reasonable treatment alternatives and their attendant probable risks and outcomes. Otherwise, the patient, in selecting one alternative rather than another, cannot make a decision that is informed.

To the extent that Parris v. Sands, 21 Cal.App.4th 187, 25 Cal.Rptr.2d 800 (Ct.App.1993), on which Dr. Mastromonaco relies, would not require a physician to inform a patient of alternative treatments, we disagree with that decision. Parris, however, is distinguishable. It involved not the failure of a physician to inform a patient of a nonrecommended treatment alternative, but the alleged negligence of the physician in diagnosing the patient’s pneumonia as viral rather than bacterial. See 3 Louisell & Williams, supra, § 22.04(3)(c) & n. 18. The extent to which the *37 reasonable patient standard obligates physicians to disclose the details of alternative diagnoses, as distinguished from treatment alternatives, is not before us. In sum, physicians do not adequately discharge their responsibility by disclosing only treatment alternatives that they recommend.

To assure that the patient’s consent is informed, the physician should describe, among other things, the material risks inherent in a procedure or course of treatment. Largey, supra, 110 N.J. at 210-13, 540 A.2d 504. The test for measuring the materiality of a risk is whether a reasonable patient in the patient’s position would have considered the risk material. Id. at 211-12, 540 A.2d 504. Although the test of materiality is objective, a “patient obviously has no complaint if he would have submitted to the therapy notwithstanding awareness that the risk was one of its perils.” Canterbury v. Spence, 464 F.2d 772, 790 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972) (citation omitted). As the court stated in Canterbury:

We think a technique which ties the factual conclusion on causation simply to the assessment of the patient’s credibility is unsatisfactory____ [W]hen causality is explored at a postinjury trial with a professedly uninformed patient, the question whether he actually would have turned the treatment down if he had known the risks is purely hypothetical____ And the answer which the patient supplies hardly represents more than a guess, perhaps tinged by the circumstance that the uncommunicated hazard has in fact materialized. In our view, this method of dealing with the issue on causation comes in second-best____ Better it is, we believe, to resolve the causality issue on an objective basis: in terms of what a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance. If adequate disclosure could reasonably be expected to have caused that person to decline the treatment because of the revelation of the kind of risk or danger that resulted in harm, causation is shown, but otherwise not. The patient’s testimony is relevant on that score of course but it would not threaten to dominate the findings. And since that testimony would probably be appraised congruently with the factfinder’s belief in its reasonableness, the case for a wholly objective standard for passing on causation is strengthened.

[ 7d at 790-91; see also Largey, supra, 110 N.J. at 215-16, 540 A.2d 504 (approving Canterbury’s adoption of objective test); Model Jury Charge 5.36G (1989) (“Although plaintiffs testimony may be considered on the question as to whether he/she would have consented, the issue to be resolved is not what this plaintiff would have done____”).]

*38 For consent to be informed, the patient must know not only of alternatives that the physician recommends, but of medically reasonable alternatives that the physician does not recommend. Otherwise, the physician, by not discussing these alternatives, effectively makes the choice for the patient. Accordingly, the physician should discuss the medically reasonable courses of treatment, including nontreatment. Largey, supra, 110 N.J. at 213, 540 A.2d 504. As we recently wrote: “The negligence lies in the physician’s failure to disclose sufficient information for the patient to make an informed decision about the comparative risks of various treatment options.” Baird, supra, 155 N.J. at 71, 713 A.2d 1019; In re Conroy, 98 N.J. 321, 347, 486 A.2d 1209 (1985) (“[T]he patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment. ...”); Battenfeld v. Gregory, 247 N.J.Super. 538, 550, 589 A.2d 1059 (App.Div.1991) (“We are convinced ... that a physician may be held liable for withholding information concerning the potential harm likely to result if the patient remains untreated.”). To the same effect, the Department of Health has declared:

Similar concerns animate our Administrative Code’s “patient rights,” which include a patient’s right “[t]o receive from the patient’s physieian[s] — in terms that the patient understands — an explanation of his or her complete medical condition, recommended treatment, riskfs] of the treatment, expected results and reasonable medical alternatives.”

[ N.J.A.C. 8:43G—4.1(a)(6).]

The medical profession likewise recognizes the physician’s obligation to explain all medically reasonable alternatives to the patient. The American Medical Association’s Code of Medical Ethics states:

The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. The patient should make his or her own determination on treatment. The physician’s obligation is to present the medical facts accurately to the patient or to the individual responsible for the patient’s care and to make recommendations for management in accordance with good medical practice____ Social policy does not accept the paternalistic view that the physician may remain silent because divulgence might prompt the patient to forego needed therapy. Rational, informed patients should not be expected to act uniformly, even under similar circumstances, in agreeing to or refusing treatment.

*39 [American Medical Association, Code of Medical Ethics: Current Opinions with Annotations, Opinion 8.08 (1981).]

Because the patient has a right to be fully informed about medically reasonable courses of treatment, we are unpersuaded that a cause of action predicated on the physician’s breach of a standard of care adequately protects the patient’s right to be informed of treatment alternatives. A physician may select a method of treatment that is medically reasonable, but not the one that the patient would have selected if informed of alternative methods. Like the deviation from a standard of care, the physician’s failure to obtain informed consent is a form of medical negligence. See Baird, supra, 155 N.J. at 70, 713 A.2d 1019; Teilhaber v. Greene, 320 N.J.Super. 453, 457, 727 A.2d 518 (App.Div.1999). Recognition of a separate duty emphasizes the physician’s obligation to inform, as well as treat, the patient. The physician’s selection of one of several medically reasonable alternatives may not violate a standard of care, but it may represent a choice that the patient would not make. Physicians may neither impose their values on their patients nor substitute their level of risk aversion for that of their patients. One patient may prefer to undergo a potentially risky procedure, such as surgery, to enjoy a better quality of life. Another patient may choose a more conservative course of treatment to secure reduced risk at the cost of a diminished lifestyle. The choice is not for the physician, but the patient in consultation with the physician. By not telling the patient of all medically reasonable alternatives, the physician breaches the patient’s right to make an informed choice.

The physician’s duty to inform the patient of alternatives is especially important when the alternatives are mutually exclusive. If, as a practical matter, the choice of one alternative precludes the choice of others, or even if it increases appreciably the risks attendant on the other alternatives, the patient’s need for relevant information is critical. That need intensifies when the choice turns not so much on purely medical considerations as on the choice of one lifestyle or set of values over another.

*40 It is not dispositive that the alternative that the physician recommends is more or less invasive than other alternatives. See Caputa v. Antiles, 296 N.J.Super. 123, 686 A.2d 356 (App.Div.1996) (holding doctor had duty to disclose alternative of “observation” as well as recommended alternative of surgery). The critical consideration is not the invasiveness of the procedure, but the patient’s need for information to make a reasonable decision about the appropriate course of medical treatment, whether invasive or noninvasive.

According to Dr. Mastromonaco’s testimony, he recognized that need. He testified that he discussed the alternative of surgery with Matthies. Whether that discussion ever took place and, if so, what the parties said, should have been an issue at trial.

The trial court, believing informed consent applied to invasive procedures only, precluded Matthies’s attorney from cross-examining Dr. Mastromonaco on that issue. Several times during the trial, Matthies’s counsel attempted to introduce testimony to refute Dr. Mastromonaco’s assertion that he had discussed surgery as an option. Each time, the trial court barred the testimony. At the conclusion of the case, therefore, Dr. Mastromonaco had presented his side of the story on the issue of informed consent, but Matthies had been prevented from presenting her side. The trial court, moreover, refused to charge the jury on the issue of informed consent. Hence, the only issue submitted to the jury was whether Dr. Mastromonaco had breached a standard of care in selecting bed rest as a treatment alternative. Consequently, the jury did not have the opportunity to consider the issue that forms the basis of this appeal, whether Dr. Mastromonaco had obtained Matthies’s informed consent to the treatment he recommended.

The issue of informed consent often intertwines with that of medical malpractice. Baird, supra, 155 N.J. at 70-71, 713 A.2d 1019. Because of the interrelationship between the malpractice *41 and informed consent issues in the present case, the jury should consider both issues at the retrial.

The judgment of the Appellate Division is affirmed.

For affirmance — Chief Justice PORITZ and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI, STEIN and COLEMAN — 7.

Opposed — None.

JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Geraldine Gragg, individually, and as special administrator of the estate of Ann Guintola, deceased, appeals the order of the trial court of Du Page County that dismissed the first count of her third amended complaint in favor of defendant Hinsdale Hospital (Hinsdale) and counts II through IV in favor of defendants Hinsdale and physicians David Calandra and Rabindra Malhotra (collectively defendants). Plaintiff alleged that defendants administered unwanted *642medical procedures to her father, Florian Quintóla, including open heart surgery and the continuation of life support. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Plaintiff alleged the following. Hinsdale owned and operated a hospital emergency room and medical care facility, including the Rooney Heart Institute. Hinsdale employed various physicians and other health care providers to see and treat patients. Hinsdale held itself out to the public as a medical facility providing emergency, specialized cardiac care, and inpatient care by qualified and competent physicians. Hinsdale represented to the public that it provided equipment and staff, including a cardiac catheterization laboratory, “to make the most of the golden hour after a heart attack.”

On December 28, 1992, plaintiff and her mother went with Florian to the emergency room at Hinsdale where he was seen and examined by defendant doctors, who were apparent agents of Hinsdale and who led plaintiff and her mother to believe that they were agents of the hospital. Florian was examined by a physician who asked Ann to sign a consent for certain cardiac tests, including an angiogram. Plaintiff and her mother relied upon Hinsdale to provide heart catheterization equipment and staff, including reasonably qualified and competent heart specialists and physicians who would exercise due care and skill in the treatment of Florian. Plaintiff and her mother consented to catheterization by defendants as a result of such reliance. During the catheterization, performed by defendant Malhotra, Florian suffered a cardiac arrest and became unconscious and nonresponsive.

Following this, there was no reasonable likelihood that Florian would survive. Defendant Calandra and defendant J. Houck (who is not a party to this appeal) nevertheless proceeded to perform open heart bypass surgery on Florian.

Plaintiff alleged that defendants performed open heart surgery on Florian without first obtaining consent. Plaintiff also alleged that Hinsdale had a duty to Florian to permit only authorized treatment and surgical procedures with informed consent and was under a duty to obtain consent to surgery.

Florian sustained irreversible brain damage, remained nonresponsive, and could not survive without life support. Florian had a living will that stated that in the absence of his ability to give directions regarding extraordinary measures to sustain life, his family should honor his wishes to withhold such measures. Plaintiff and Ann repeatedly asked defendants to remove Florian from life support to honor his wishes. After requests were made by Florian’s regular physician to *643discontinue life support, a meeting was held with plaintiff, Ann, and others, including a nurse for defendant Calandra and an attorney for Hinsdale, to discuss Florian’s living will. Following the meeting, Dr. Glassford, the medical staff director of Hinsdale, informed plaintiff and her mother that the hospital and doctors would not honor the living will. Florian never regained consciousness and died on January 5, 1993.

Plaintiff, in her capacity as administrator of Ann’s estate and individually, brought count I of the third amended complaint against defendants under section 15 of the Rights of Married Persons Act (herein called the Family Expense Act) (750 ILCS 65/15 (West 1996)). Count II, brought by the estate, alleges that defendants violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1996)). Counts III, brought by plaintiff individually, and IX brought by the estate, are based on intentional infliction of emotional distress. Defendants filed separate motions to dismiss. The trial court dismissed counts I through IV of the complaint against Hinsdale with prejudice. The trial court also dismissed counts II through IV against the other defendants with prejudice, finding that there was no just cause for delay of enforcement or appeal under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). Count I against defendant physicians remains pending in the trial court. Plaintiff timely appeals.

We note that defendants’ motions to dismiss were made pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 615, 2 — 619 (West 1996)). The legal theories for proceeding on a motion to dismiss under sections 2 — 615 and 2 — 619 differ. A section 2 — 615 attacks the legal sufficiency of the complaint by asserting that it fails to state a cause of action upon which relief can be granted. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1083 (1994). Under section 2 — 619, a party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter which avoids or defeats the claim. T&S Signs, Inc., 261 Ill. App. 3d at 1083. Similar to a motion brought under section 2 — 615, a motion to dismiss under section 2 — 619 admits all well-pleaded facts. Geick v. Kay, 236 Ill. App. 3d 868, 874 (1992). A reviewing court is not required to defer to the trial court’s judgment on a motion to dismiss, and we will review the matter de novo. T&S Signs, Inc., 261 Ill. App 3d at 1084.

Plaintiff first contends that the trial court improperly dismissed count I against Hinsdale. In count I, plaintiff seeks recovery individually and as special administrator of Ann’s estate for hospital expenses incurred by Florian under the Family Expense Act.

*644Initially, we note that plaintiff individually lacks standing to bring a claim under the Family Expense Act. Expenses of the family are those for which the husband and wife are liable. 750 ILCS 65/15 (West 1996). Thus, only a spouse may maintain an action against a tortfeasor under the statute for family expenses incurred due to injuries the victim’s spouse sustained. See Brown v. Metzger, 118 Ill. App. 3d 855, 860 (1983). Just as parents cannot maintain an action for expenses incurred by their adult children, adult children may not maintain an action for their parents’ medical bills. See Rodgers v. Consolidated R.R. Corp., 136 Ill. App. 3d 191, 196 (1985). Here, plaintiff does not plead that she is obligated individually to pay Florian’s medical expenses and therefore cannot bring an individual claim under the Family Expense Act. The trial court properly dismissed count I as to plaintiff individually.

Plaintiff as special administrator of Ann’s estate alleged two separate injuries under count I. The first injury is based on the open heart bypass surgery performed without consent. The second injury arose from placing Florian on life support without consent. Plaintiff alleged that had she or Ann been informed of the proposed open heart surgery and Florian’s condition, they would have withheld their consent for the surgery and life support measures. Plaintiff alleges that, as a direct and proximate result of defendants’ actions of performing surgery without consent and refusing to discontinue life support, Ann became obligated for medical expenses. Hinsdale counters that the cause of action under the Family Expense Act does not survive the death of Ann. Hinsdale contends that, if a cause of action is created by statute and neither that statute nor any other provides for its survival, the action abates upon the death of the party, citing Shapiro v. Chernoff, 3 Ill. App. 3d 396 (1972). Hinsdale argues that, because neither the Family Expense Act nor the Survival Act (755 ILCS 5/27 — 6 (West 1996)) provides a remedy for survival, the action abated on the death of Ann. We disagree.

The law determining the abatement or survival of actions is governed by common-law rules and statutory provisions changing the common law. Shapiro, 3 Ill. App. 3d at 401. Application of the correct rule depends upon the nature of the action to which it is applied. Therefore, we must characterize the theory of recovery that plaintiff alleges in count I.

Here, plaintiff alleges that Hinsdale wrongfully caused medical expenses to be incurred. Plaintiff is not seeking recovery for Florian’s injuries but, rather, plaintiff seeks a property right to recover expenses based on the hospital’s liability. The Family Expense Act did not create the liability; it merely provides a mechanism for recovery. Where *645recovery does not rest on the statute but upon a property right, it survives. See, e.g., McDaniel v. Bullard, 34 Ill. 2d 487, 491-92 (1966). Thus, we find that the action is not dependent upon Ann’s survival. We now proceed with our review of the trial court’s dismissal of count I against Hinsdale.

Hinsdale argues that the trial court correctly found that count I was grounded on healing art malpractice, for which a section 2 — 622 health professional report (735 ILCS 5/2 — 622 (West 1996)) must be attached. Hinsdale contends that the physician’s report submitted by plaintiff insufficiently complied with the proper standards. Plaintiff argues that the underlying action sounds in battery because the open heart surgery and life support were given without consent and, therefore, a section 2 — 622 report is unnecessary. We agree.

Liability for battery emphasizes the plaintiffs lack of consent to a touching. Cohen v. Smith, 269 Ill. App. 3d 1087, 1090 (1995). A defendant may be liable not only for contacts that do actual physical harm, but also for those relatively trivial ones that are merely offensive and insulting. Cohen, 269 Ill. App. 3d at 1091. “[A] plaintiff is entitled to demand that the defendant refrain from the offensive touching, although the contact results in no visible injury.” W. Keeton, Prosser & Keeton on Torts § 9, at 41 (5th ed. 1984).

We held in Kus v. Sherman Hospital, 268 Ill. App. 3d 771, 779 (1995), that the plaintiffs medical battery claim was viable under Illinois law. We recognized that in Illinois two causes of action exist for lack of consent to medical procedures. One action is based on negligence and the other is based on battery. Kus, 268 Ill. App. 3d at 779. In Guebard v. Jabaay, 117 Ill. App. 3d 1, 7 (1983), the court held that where an unauthorized surgeon operates, he commits a technical trespass to the patient resulting in the intentional tort of battery. It is not the hostile intent of the defendant but rather the absence of consent by the plaintiff that is at the core of an action for battery. Gaskin v. Goldwasser, 166 Ill. App. 3d 996, 1012 (1988).

Plaintiffs complaint alleges that Hinsdale operated on Florian without consent and maintained Florian on life support against the wishes expressed in his living will and his family’s wishes. Here, the violation of a plaintiffs right to bodily and personal integrity by an unconsented-to touching is the essence of the claim for battery. By stating that surgery and treatment were performed without consent, plaintiff has stated a claim for medical battery. See Grant v. Petroff, 291 Ill. App. 3d 795, 804-05 (1997); Cohen, 269 Ill. App. 3d at 1090-93; Kus, 268 Ill. App. 3d at 779.

Moreover, it is clear that plaintiff does not allege any deviation from the appropriate medical standards. Plaintiffs claim under count *646I against the hospital is not based upon medical malpractice. Consequently, it is unnecessary to provide a section 2 — 622 report.

Hinsdale contends that it did not have the duty to obtain consent to perform the surgery and therefore cannot be liable. Under ordinary negligence principles, it generally is the duty of the physician, not the hospital, to obtain consent. Pickle v. Curns, 106 Ill. App. 3d 734, 738 (1982). In this instance, the alleged liability arises from an unconsented-to touching.

Furthermore, under the doctrine of apparent authority, a hospital can be held vicariously liable for the negligent acts of a physician providing care at a hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 524 (1993). In Gilbert, the decedent’s estate brought a medical malpractice and wrongful death action against the doctor who treated the decedent and the hospital. The hospital contended that it was not vicariously liable for the doctor’s alleged negligence because he was not the hospital’s agent or employee. In so holding, the supreme court, concerned with the realities of modern hospital care, held:

“ ‘[Hjospitals increasingly hold themselves out to the public in expensive advertising campaigns as offering and rendering quality health services ***. Modern hospitals have spent billions of dollars marketing themselves, nurturing the image with the consuming public that they are full-care modern health facilities. All of these expenditures have but one purpose: to persuade those in need of medical services to obtain those services at a specific hospital.’ ” Gilbert, 156 Ill. 2d at 520, quoting Kashishian v. Port, 167 Wis. 2d 24, 38, 481 N.W.2d 277, 282 (1992).

The court further observed that modern hospital care involves the reasonable expectations of the public:

“ ‘[Generally people who seek medical help through the emergency room facilities of modern-day hospitals are unaware of the status of the various professionals working there. Absent a situation where the patient is directed by his own physician or where the patient makes an independent selection as to which physicians he will use while there, it is the reputation of the hospital itself upon which he would rely. Also, unless the patient is in some manner put on notice of the independent status of the professionals with whom it might be expected to come into contact, it would be natural for him to assume that these people are employees of the hospital.’ ” Gilbert, 156 Ill. 2d at 521, quoting Arthur v. St. Peters Hospital, 169 N.J. Super. 575, 583, 405 A.2d 443, 447 (1979).

Under the doctrine of apparent authority, a hospital can be held *647vicariously liable for the negligent acts of a physician providing care at the hospital. We see no reason why this reasoning should not apply to an intentional tort, as in this case, where, under the guise of apparent authority, an agent commits an intentional tort while furthering the business of the principal. See Bonnem v. Harrison, 17 Ill. App. 2d 292, 298-99 (1958).

Hinsdale next argues that it cannot be liable for the acts of the defendant physicians because plaintiff failed to properly plead a principal-agent relationship. Hinsdale argues that, other than alleging that the hospital represented to the public that it provided equipment, staff, and emergency care by the physicians, plaintiff made no specific allegations about how the hospital held out the physicians as its agents.

The supreme court in Gilbert also rejected a similar argument. There, the plaintiff simply alleged that the physician was an agent or employee of the hospital. Gilbert, 156 Ill. 2d at 527. Here, plaintiff alleges that the physician defendants were apparent agents of Hinsdale, did not advise plaintiff otherwise, and led plaintiff to believe that they were agents of Hinsdale. We find plaintiff adequately pleaded apparent agency. Accordingly, we reverse the trial court’s dismissal of count I against Hinsdale brought by plaintiff in her capacity as administrator of Ann’s estate. We reiterate that the trial court properly dismissed count I as to plaintiff individually. In all other respects, count I against defendant physicians remains.

Plaintiff next argues that the trial court improperly dismissed count II against all defendants for a violation of section 2 of the Consumer Fraud Act (815 ILCS 505/2 (West 1996)). Defendants counter that any action under the Consumer Fraud Act abated at Florian’s death; that, even if the claim survives, the condüct arising out of the practice of medicine is not a “trade or commerce” within the meaning of the Act; and that the allegations fail to state a claim for such relief because they allege medical malpractice and only tangentially relate to the business aspects of the medical profession.

•10 In order to state a cause of action under the Consumer Fraud Act, a complaint must set forth specific facts that show a deceptive act or misrepresentation of a material fact by the defendant, the defendant’s intention that the plaintiff rely on the deception or misrepresentation, and that the deception or misrepresentation occur in the course of business. Connick v. Suzuki Motor Co., 174 111. 2d 482, 501 (1996); People ex rel. Hartigan v. E&E Hauling, Inc., 153 111. 2d 473, 492 (1992). The complaint must set forth specific facts that establish each element of the claim. E&E Hauling, 153 111. 2d at 492. The representations can only be material if some connection is shown be*648tween those representations and the injury. E&E Hauling, 153 Ill. 2d at 492. The deceptive statements must proximately cause the alleged injury. Connick v. Suzuki Motor Co., 275 Ill. App. 3d 705, 722 (1995).

We find that plaintiff fails to state a claim for relief under the Consumer Fraud Act. Plaintiff alleges that Hinsdale and defendants represented to the public that patients for cardiology services would promptly receive care for cardiac patients who would be in surgery within an hour. Plaintiff further alleges that defendants had a complete cardiovascular center with a catheterization lab and would help patients choose the right doctor. However, plaintiff does not specify how the advertisements were false or deceptive or how the advertisements caused any damages. Plaintiff fails to show a connection between those representations and the injury that surgery was performed without consent and that Florian was placed on life support against his permission. In short, plaintiff simply does not allege a deceptive act or misrepresentation by defendants that was made with the intent that plaintiff rely upon them. Accordingly, we find that the trial court properly dismissed count II, as there are no allegations supporting the conclusion that the misrepresentations made by defendants were fraudulent or that the injury resulted from them.

Plaintiff next contends that the trial court improperly dismissed the intentional infliction of emotional distress claims set forth in counts III and IV of her complaint. Count III was brought in plaintiffs individual capacity, and count IV was brought in plaintiffs capacity as special administrator of her mother’s estate.

To state a claim for intentional infliction of emotional distress, the plaintiff must allege that the defendant engaged in extreme and outrageous conduct; that the defendant acted with the intent or knowledge that there was at least a high probability that his or her conduct would inflict severe emotional distress and with the reckless disregard of that probability; and that the plaintiff experienced severe emotional distress. Public Finance Corp. v. Davis, 66 Ill. 2d 85, 89-90 (1976). These factors must be applied on a case-by-case basis, and the determination of whether the conduct is actionable is to be made pursuant to an objective standard. Miller v. Linden, 172 Ill. App. 3d 594, 596-97 (1988). The distress inflicted must be so severe that no reasonable man could be expected to endure it. McGrath v. Fahey, 126 Ill. 2d 78, 86 (1988).

Plaintiff alleged that defendants “verbally abused” and “repeatedly insult[ed] and injure[d]” and “wilfully and wantonly inflict[edj” severe emotional distress on her and her mother by repeatedly accusing them in a public area in the presence of others of trying to kill Florian; by continuing life support without good cause, knowing *649that plaintiff and her mother were under emotional distress; by refusing to honor Florian’s living will and family requests, knowing that their refusals were themselves causing plaintiff and her mother great emotional distress; and by refusing to perform an EEG test or to report the results of such a test, knowing that the test would likely confirm that there was no brain activity.

Plaintiff relies on Wall v. Pecaro, 204 Ill. App. 3d 362 (1990). In that case, the plaintiff sought medical treatment from the defendant regarding a tumorous growth in the roof of her mouth. The defendant knew that the plaintiff did not have cancer but recommended that the plaintiff submit to unnecessary surgery that would have resulted in the removal of half of the plaintiffs face and the loss of her fetus. The defendant repeatedly told her that if she failed to undergo the procedures, her cancer would spread rapidly. After the plaintiff told the defendant that he was discharged, the defendant continued to insist that she allow him to perform the procedures, and he even called her at home. The court found the defendant’s conduct outrageous because the defendant knew or had reason to know that the plaintiff was peculiarly susceptible to emotional distress due to her pregnancy, especially in light of the fact that the procedures he recommended would have resulted not only in the loss of her viable fetus but also the loss of half her face. Wall, 204 Ill. App. 3d at 368-69.

Plaintiff also relies on Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1 (1992), and Cohen, 269 Ill. App. 3d 1087. The defendant in Kolegas knew that the plaintiffs wife and child were afflicted with “Elephant Man’s” disease and that the plaintiffs were promoting a festival to promote public awareness of the disease, yet he made statements during a radio program implying, among other things, that the plaintiffs wife was so hideous no one would marry her except under duress. Similarly, the defendant in Cohen knew that, because of the restrictions placed on the plaintiff by her religion, the plaintiff would be particularly susceptible to emotional distress if the defendant did not abide by those restrictions, yet the defendant allowed a male nurse to view and touch the plaintiff. Cohen, 269 Ill. App. 3d at 1095-96.

Plaintiff alleges that she and her mother were in such an emotional state because of Florian’s condition that they were more susceptible to emotional distress and that defendants’ conduct adversely affected their emotional state. Like the defendants in Wall, Kolegas, and Cohen, defendants in this case knew or had reason to know that plaintiff and Ann were extremely distraught because of Florian’s condition, yet defendants repeatedly accused plaintiff and her mother of trying to kill Florian. Under the circumstances, there was a high probability that severe emotional distress would follow, but *650defendants consciously disregarded it. We agree with plaintiff that this conduct could be deemed outrageous by a jury.

Defendants argue that they had a legitimate objective in sustaining Florian’s life. Although a defendant may reasonably believe that his objective is legitimate, it does not provide him with carte blanche to pursue that objective by outrageous means. McGrath, 126 Ill. 2d at 88. In the present context, considering the emotional state of plaintiff and her mother and that defendants knew or should have known of their emotional state, defendants’ actions of accusing plaintiff and her mother of trying to kill Florian could be considered so mortifying and callous as to amount to outrageous conduct. We find that plaintiff adequately alleged an extreme and outrageous course of action. Accordingly, the trial court erred in dismissing counts III and IV against defendants for intentional infliction of emotional distress.

In closing, we note that, because counts III and IV are based on an intentional tort, the doctrine of transferred negligence is inapplicable and there is no need to file a section 2 — 622 report. However, punitive damages may not be assessed as an additional recovery where the conduct arises from intentional infliction of emotional distress. Knierim v. Izzo, 22 Ill. 2d 73, 87-88 (1961); Morrison v. Sandell, 112 Ill. App. 3d 1057, 1060 (1983).

For the foregoing reasons, that part of the judgment of the circuit court of Du Page County that dismissed count I brought by plaintiff as administrator of Ann’s estate against Hinsdale is reversed, and the cause is remanded for further proceedings consistent with this order. That part of the judgment of the circuit court of Du Page County that dismissed count II against defendants is affirmed. That part of the judgment of the circuit court of Du Page County that dismissed counts III and IV is reversed, and the cause is remanded with directions to strike those portions of counts III and IV asking for punitive damages.

Affirmed in part and reversed in part; cause remanded with directions.

COLWELL and HUTCHINSON, JJ., concur.

BRAY, J.

The accident out of which this action arose was apparently the result of the effervescence and ebullition of San Franciscans in their exuberance of joy on V-J Day, August 14, 1945. Plaintiff (who is not included in the above description), while walking on the sidewalk on Post Street adjoining the St. Francis Hotel, just after stepping out from under the marquee, was struck on the head by a heavy, overstuffed armchair, knocked unconscious, and received injuries for which she is asking damages from the owners of the hotel. Although there were a number of persons in the immediate vicinity, no one appears to have seen from whence the chair came nor to have seen it before it was within a few feet of plaintiff’s head, nor was there any identification of the chair as belonging to the hotel. However, it is a reasonable inference that the chair came from some portion of the hotel. For the purposes of this opinion, we will so assume, in view of the rule on nonsuit cases that every favorable *212inference fairly deducible from the evidence must be drawn in favor of plaintiff, and that all the evidence must be construed most strongly against the defendants. (9 Cal. Jur. p. 551.)

At the trial, plaintiff, after proving the foregoing facts and the extent of her injuries, rested, relying upon the doctrine of res ipsa loquitur. On motion of defendant the court granted a nonsuit. The main question to be determined is whether under the circumstances shown, the doctrine applies. The trial court correctly held that it did not.

In Gerhart v. Southern Cal. Gas Co., 56 Cal.App.2d 425 [132 P.2d 874], cited by plaintiff, the court sets forth the test for the applicability of the doctrine. “. . . for a plaintiff to make out a case entitling him to the benefit of the doctrine, he must prove (1) that there was an accident; (2) that the thing or instrumentality which caused the accident was at the time and prior thereto under the exclusive control and management of the defendant; (3) that the accident was such that in the ordinary course of events, the defendant using ordinary care, the accident would not have happened. . . . The doctrine of res ipsa loquitur applies only where the cause of the injury is shown to be under the exclusive control and management of the defendant and can have no application ... to a case having a divided responsibility where an unexplained accident may have been attributable to one of several causes, for some of which the defendant is not responsible, and when it appears that the injury was caused by one of two causes for one of which defendant is responsible but not for the other, plaintiff must fail, if the evidence does not show that the injury was the result of the former cause, or leaves it as probable that it was caused by one or the other.” (Emphasis added.)

Applying the rule to the facts of this case, it is obvious that the doctrine does not apply. While, as pointed out by plaintiff, the rule of exclusive control “is not limited to the actual physical control but applies to the right of control of the instrumentality which causes the injury” it is not clear to us how this helps plaintiff’s case. A hotel does not have exclusive control, either actual or potential, of its furniture. Guests have, at least, partial control. Moreover, it cannot be said that with the hotel using ordinary care “the accident was such that in the ordinary course of events . . . would not have happened.” On the contrary, the mishap would quite as likely be due to the fault of a guest or other person *213as to that of defendants. The most logical inference from the circumstances shown is that the chair was thrown by some such person from a window. It thus appears that this occurrence is not such as ordinarily does not happen without the negligence of the party charged, but, rather, one in which the accident ordinarily might happen despite the fact that the defendants used reasonable care and were totally free from negligence. To keep guests and visitors from throwing furniture out windows would require a guard to be placed in every room in the hotel, and no one would contend that there is any rule of law requiring a hotel to do that.

The cases cited by plaintiff as authority for the application of the doctrine of res ipsa loquitur are easily distinguishable from this case. In Gerhart v. Southern Cal. Gas Co., supra, which involved an explosion from leaking gas, the court found (p. 427) that defendant was in the exclusive ownership, control and management of the supply, flow and existence of the gas which exploded. In Helms v. Pacific Gas & Electric Co., 21 Cal.App.2d 711 [70 P.2d 247], a glass portion of an electrolier fell and injured the plaintiff, who was standing on the sidewalk beneath it. The parties stipulated that the electrolier was owned and maintained by the defendant. There, not only was the instrumentality which caused the accident in the exclusive control and management of the defendant, but the falling of the glass portion was something that in the ordinary course of events would not occur if the defendant used ordinary care in maintaining it.

In Michener v. Hutton, 203 Cal. 604 [265 P. 238, 59 A.L.R. 480], the length of pipe which fell and caused the injury was “unquestionably under the management of the appellants at the time of the accident.” (P. 609.) While the court holds that (p. 608) “The doctrine has also found frequent application in actions for damages for injuries incurred by reason of being struck by falling objects,” it is limited to situations in which the thing is shown to be under the exclusive management or control of the defendant or his servants, or in which it must necessarily follow that the injury would not have occurred had the defendant used ordinary care.

In Mintzer v. Wilson, 21 Cal.App.2d 85 [68 P.2d 370], a paid guest in defendant’s hotel was injured while in bed by the falling of a huge piece of plaster from the ceiling. It was held by the court that the ceiling was in the exclusive *214control of the hotel, and that plaster does not ordinarily fall from properly constructed ceilings.

Hubbert v. Aztec Brewing Co., 26 Cal.App.2d 664 [80 P.2d 185, 1016], holds (p. 688) : “The mere fact that an accident has occurred does not of itself result in any inference of negligence as against a defendant. ... To justify the invocation of the rule res ipsa loquitur the instrumentality which caused the injury must have been under the exclusive management of the defendant” and quotes from Biddlecomb v. Haydon, 4 Cal.App.2d 361, 364 [40 P.2d 873], as follows: “Neither does it apply where the cause of the accident is unexplained and might have been due to one of several causes for some of which the defendant is not responsible.” See, also, Hilson v. Pacific G. & E. Co., 131 Cal.App. 427, 434 [21 P.2d 662], which held that in a situation as last above quoted, the doctrine “can in no event apply.”

Plaintiff quotes 9 California Jurisprudence, page 548 to the effect “that a motion for a nonsuit must point the attention of the court and counsel to the precise grounds upon which it is made” and contends that the motion for nonsuit in the trial court did not do this. The motion was made on the ground that “there is no evidence from which it might be inferred that the hotel was guilty of any negligence which caused the chair” to hit plaintiff. It further points out that the only evidence attempting to connect the hotel with the accident is the fact that it occurred in the proximity of the hotel, and that such proof is not sufficient to establish liability. The motion was sufficient.

In her complaint plaintiff alleged in paragraph III that the defendant was engaged in the hotel business on all the premises described therein and had the right of control and management thereof. In its answer defendants denied all of the allegations of paragraph III and then stated: “Further answering paragraph III, these defendants admit that they operated the St. Francis Hotel at said time as co-partners.” Plaintiff contends that in some way this is an admission that defendants had exclusive control and management of the furniture of the hotel so as to warrant the application of the doctrine of res ipsa loquitur. It is obvious that such contention is without merit.

The judgment appealed from is affirmed.

Peters, P. J., and Ward, J., concurred.

Murphy, Justice.

Action by Marcella A. Connolly against The Nicollet Hotel, a copartnership, and Alice Shmikler, as trustee of Joseph Shmikler, and others, doing business as The Nicollet Hotel, for the loss of the sight of her left eye alleged to have been caused by defendants’ negligence.

The accident occurred about midnight June 12, 1953, during the course of the 1953 National Junior Chamber of Commerce Convention which had its headquarters at The Nicollet Hotel in Minneapolis. It was occasioned when plaintiff was struck in her left eye by a substance falling from above her as she walked on a public sidewalk on Nicollet Avenue adjacent to the hotel.

The 1953 National Junior Chamber of Commerce Convention, Inc., was joined as a defendant in the action, but at the close of the testimony a verdict was directed in its favor. The jury returned a verdict against The Nicollet Hotel copartnership, which will hereinafter be designated defendants, in the sum of $30,000. This is an appeal from an order of the trial court granting judgment for such defendants notwithstanding the verdict. On appeal plaintiff contends that defendants were negligent in failing to maintain order and control the conduct of their guests with respect to persons using the sidewalk adjacent to the hotel building and that hence the court erred in granting judgment notwithstanding the verdict.

The evidence, presented entirely by plaintiff inasmuch as defendants rested at the conclusion of plaintiff’s case, established the following: The easterly side of The Nicollet Hotel is adjacent to Nicollet Avenue. The hotel lies between Washington Avenue to the north and Third Street to the south. It is a 12-story building, but on the Nicollet Avenue side it *377is limited to eight stories in height. It has a capacity of approximately 490 sleeping rooms on the upper eleven floors. There are no other high buildings in its vicinity. Just south of the hotel on Nicollet Avenue is The Nicollet Hotel garage also operated by defendants. On the east side of Nicollet Avenue opposite the hotel were two 4-story buildings. To the south of these is a parking lot.

Nicollet Avenue in this block is about 50 feet in width. The sidewalks adjacent to it on each side are about 10 feet in width from curb line to building line. At the time of the accident that half of the west sidewalk nearest to the hotel was blocked off by a barricade from the Nicollet Avenue hotel entrance south for about 95 feet, leaving an area about 5 feet in width for pedestrian traffic for such distance. The hotel entrance on Nicollet Avenue is about midway between Washington Avenue and the entrance to the hotel garage.

At the time of the accident there was nothing unusual about the weather. Plaintiff, in company with one Margaret Hansen, had just left the hotel via its Nicollet Avenue entrance and was walking southerly toward Third Street on the west side of Nicollet Avenue. When she had traveled approximately six to ten steps from the canopy extending over such entrance, she observed two people walking toward her. She then heard a noise which sounded like a small explosion and saw something strike the walk in front of her. She observed that one of the persons approaching her was struck on the left shoulder by some substance. She then exclaimed, “We better get off this sidewalk, or somebody is going to get hit.” Immediately thereafter she glanced upward and was struck in the left eye by a substance she described as a mud-like substance or a “handful of dirt.” Margaret Hansen testified that she also saw the substance falling from eye level to the sidewalk a step or two in front of her. She described the sound made by the striking object as explosive and accompanied by a splattering. The only place from which the article might have fallen from above was the hotel building.

The blow which struck plaintiff caused her to lose her balance but not to fall. Her knees buckled and she was caught by Margaret Hansen and held on her feet. Following the blow, she stated that she could not open her left eye and the left side of her face and head became numb, *378and her shoulders, hair, and the left side of her face were covered with dirt. A dark substance which looked like mud was found imbedded in her left eye. After the accident the assistant manager of the hotel attempted to remove a “mud like substance” from plaintiff’s eye by using a cotton applicator. As a result of the foregoing accident, plaintiff lost the sight of the injured eye.

As stated above, the 1953 National Junior Chamber of Commerce Convention occupied a substantial portion of the hotel at the time of the accident. In connection therewith various delegates and firms maintained hospitality centers there where intoxicants, beer, and milk were served to guests and visitors. Two of such centers were located on the Nicollet Avenue side of the building.

The assistant manager of the hotel on duty at the time of the accident and in charge of maintaining order had received notice that water bags had been thrown from the hotel during the previous days of the convention. The night engineer testified that on the Hennepin Avenue side of the hotel he had observed liquor and beer bottles and cans on the sidewalk and described the accumulation in this area as greater than he had ever witnessed during the 18-month period he had been employed at the hotel. He also testified that he had found cans and beer bottles upon the fire escape at the third-floor level during the convention.

Arthur Reinhold, an employee of the garage, had been informed that objects had fallen or been thrown from the hotel and that a window screen had fallen from the building, first striking the barricade covering the sidewalk next to the garage, and then falling upon a pedestrian. He also was advised that ice cubes had been thrown from the hotel and that a bottle had been thrown or had fallen therefrom during the course of the convention-

Since in reviewing an order upon a motion granting judgment notwithstanding the verdict we are required to view the evidence in the light most favorable to the verdict, it is material to point out these additional facts: A floral shop was maintained on the premises where potted plants were sold. During the course of the convention a mule was stabled in the lobby of the hotel, and a small alligator was kept on the fourth floor. There was firing of guns in the lobby. Broken bottles and broken glass *379were found on the sidewalk near the garage adjacent to the building so that it was necessary to clean the sidewalk near the garage as frequently as twice a day during the course of the convention. The doorman at the hotel was equipped with a shovel and broom which he used for this sidewalk maintenance. Property of the hotel was damaged on the third, fourth, fifth, sixth, eighth, ninth, tenth, and eleventh floors. The window of the office of the credit manager was broken. From the testimony of the executive housekeeper of the hotel the damage consisted of wet carpets, broken chairs, broken screens, molding torn loose from connecting doors, and walls spotted with liquor and water. The inspection of the building made after the accident indicated that there were three missing window screens, mirrors pulled off the walls in bathrooms, light fixtures were broken, signs were broken, hall lights were broken, exit lights were broken, the bowl in the men’s washroom was tom off the wall, holes were drilled through door panels, and 150 face towels had to be removed from service. Broken glass and bottles were found on landings and stair wells, a condition which existed almost every night at all floor levels. It became apparent to the general manager of the hotel on June 11, 1953, the day prior to the happening of the accident to the plaintiff, that the disorderly behavior of the hotel guests created a hazard to the defendant’s property. He issued the following memorandum to his staff:

“WE HAVE ALMOST ARRIVED AT THE END OF THE MOST HARROWING EXPERIENCE WE HAVE HAD IN THE WAY OF CONVENTIONS, AT LEAST IN MY EXPERIENCE! WHEN WE BECAME INVOLVED AND SAW WHAT THE SITUATION WAS, WE HAD NO ALTERNATIVE BUT TO PROCEED AND 'TURN THE OTHER CHEEK.’ HOWEVER, IT INVOLVES CERTAIN EXPENSES THAT I DO NOT PROPOSE TO FOREGO WITHOUT AT LEAST AN ARGUMENT — AND MAYBE LEGAL SUIT.

* * * * *

“I, OF COURSE, AM SPEAKING OF ANY DAMAGE, WHICH FOR THE MOST PART WILL BE REPORTED BY THE HOUSEKEEPING DEPARTMENT. HOWEVER, THAT I MAY DRAW UP A COMPREHENSIVE CASE, PLEASE HAVE THE INFORMATION IN MY OFFICE NOT LATER THAN NOON, FRIDAY. WE WILL, *380INCIDENTALLY, START TO TAKE DOWN ALL SIGNS, ETC., AT 9:00 AM, FRIDAY MORNING.”

In granting the defendants’ motion for judgment notwithstanding the verdict, the trial court was of the view that there was no evidence which would support a finding that the defendants had knowledge of the particular risk of injury to a member of the public and that by the exercise of ordinary care they could not know that a guest’s conduct would naturally result in injury to others. The trial court apparently agreed with the defendants’ contention that prior to the plaintiff’s injury there was no time to ascertain the location of the room from which the object fell or from which it was thrown and to evict therefrom the person or persons responsible therefor. Bruner v. Seelbach Hotel Co. 133 Ky. 41, 117 S. W. 373, 19 Ann. Cas. 217.

It is generally agreed that a hotel owner or innkeeper owes a duty to the public to protect it against foreseeable risk of danger attendant upon the maintenance and operation of his property (Wolk v. Pittsburgh Hotels Co. 284 Pa. 545, 131 A. 537, 42 A. L. R. 1081; Kapphahn v. Martin Hotel Co. 230 Iowa 739, 298 N. W. 901); and to keep it in such condition that it will not be of danger to pedestrians using streets adjacent thereto. Gore v. Whitmore Hotel Co. 229 Mo. App. 910, 83 S. W. (2d) 114.

The failure of a hotel owner and operator to take reasonable precautions to eliminate or prevent conditions of which he is or should be aware and which might reasonably be expected to be dangerous to the public may constitute negligence. Wolk v. Pittsburgh Hotels Co. supra. In Holly v. Meyers Hotel & Tavern, Inc. 9 N. J. 493, 495, 89 A. (2d) 6, 7, the Supreme Court of New Jersey has stated the rule this way:

“We accept the general doctrine that if the defendant hotel knew, or had reason to know, of the danger of injury to passers-by from the acts of its transient guests within the hotel, then it was under the duty to take reasonable steps to avoid such injury. See Wolk v. Pittsburgh Hotels Co., 284 Pa. 545, 131 A. 537, 42 A. L. R. 1081 (Sup. Ct. 1925); Gore v. Whitmore Hotel Co., 229 Mo. App. 910, 83 S. W. 2d 114 (Ct. App. 1935); Bruner v. Seelbach Hotel Co., 133 Ky. 41, 117 S. W. 373, 376 (Ct. App. 1909); 43 C. J. S., p. 1176 (1945); 28 Am. Jur., p. 636 *381(1940).”

The plaintiff contends that the act which caused the injury was foreseeable and that the defendants failed in their duty to exercise reasonable care to restrain their guests or to prevent the injury.

There are certain controlling principles of law which must be kept in mind in considering the merits of the plaintiff’s claims as they are established by the record. It is recognized that one who assembles a large number of people upon his premises for the purpose of financial gain to himself assumes the responsibility for using all reasonable care to protect others from injury from causes reasonably to be anticipated.1 In the exercise of this duty it is necessary for him to furnish a sufficient number of guards or attendants and to take other precautions to control the actions of the crowd.2 Whether the guards furnished or the precautions taken are sufficient is ordinarily a question for the jury to determine under all of the circumstances.

The common-law test of duty is the probability or foreseeability of injury to the plaintiff. As expressed by Chief Judge Cardozo, “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.” Palsgraf v. Long Island R. Co. 248 N. Y. 339, 344, 162 N. E. 99, 100, 59 A. L. R. 1253, 1256; 13 Dunnell, Dig. (3 ed.) § 6973, note 25. In Restatement, Torts, § 348, the same rule is expressed with respect to liability of one who holds out his property for use of the public. It is said that in the exercise of reasonable care the owner of a public place has a “duty to police the premises” and to furnish a sufficient number of servants to afford reasonable protection “if the place is one or the character of the business is such that the utility or other possessor should expect careless or criminal third persons to be thereon either generally or at some particular time.” Schubart v. Hotel Astor, Inc. 168 Misc. 431, 438, 5 N. Y. S. (2d) 203, 210.

For the risk of injury to be within the defendants’ “range of apprehension,” it is not necessary that the defendants should have had *382notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the person of ordinary prudence.3

It should further be emphasized that, while the standard of care remains constant, the degree of care varies with the facts and circumstances surrounding each particular case. And, in considering the degree of care to be exercised by the defendants under the circumstances in the case before us, it is relevant to consider authorities dealing with the liability of hotelkeepers and bar operators.4

Since the defendants are not only hotel operators but are engaged as well in the sale of intoxicating liquor, it is material to point out that they are under the duty to use reasonable care to protect guests and patrons from injury at the hands of irresponsible persons whom they knowingly permit to be in and about the premises on which their business is conducted. In Mastad v. Swedish Brethren, 83 Minn. 40, 42, 85 N. W. 913, 914, 53 L. R. A. 803, 805, 85 A. S. R. 446, 448, we said:

“All who engage in a public business of that nature are bound to protect their guests, both in person and property, from acts and misconduct of wrongdoers permitted to remain upon the premises; and the rules of law applicable to the common carrier are applicable alike to them.”

See, also, Windorski v. Doyle, 219 Minn. 402, 18 N. W. (2d) 142; Priewe v. Bartz, 249 Minn. 488, 83 N. W. (2d) 116. Although it appears from the record that the defendants doubted the wisdom of permitting free liquor and beer to be served upon the premises, they nevertheless permitted it.

It is the policy of the law, both statutory and decisional, to protect the public from social consequences of intoxicating liquor. There is perhaps no field of business activity more hedged about with state and municipal laws and regulations designed to protect the public. When a *383person engaged in that business permits crowds to gather upon his premises for profit, he must recognize the risks which flow from the nature of the business.

In the light of the foregoing observations we may examine the record for the purpose of determining whether or not the act causing the injury was within the range of foreseeability and, if so, whether the defendants exercised the required degree of care to protect the public from the consequences of such an act. Since the act causing the injury must be considered in the light of the circumstances and conditions under which it is alleged to have occurred, it should be observed that the defendants not only furnished room accommodations for from 350 to 400 delegates but also provided their rooms and facilities as headquarters for a convention attended by more than 4,000 young men. This use differed from the ordinary commercial business of the hotel in that its rooms and facilities were turned over to the convention for meetings, caucuses, and social purposes. An officer of the convention described the delegates as a group of young men who “work hard and play hard.” It may be expected that in the light of human experience the defendants were aware of the fact that among this number, as in any group of young men, would be a certain number not concerned with the serious work of the convention. It must have been apparent to the defendants that the ready availability of free intoxicants would not tend to repress the urges of this element. After the convention had been in session for several days, it came to the attention of the management of the hotel that the premises, both inside and out, had been littered with the debris of broken glasses and bottles. They became aware of the considerable damage to their property and received complaints from a pedestrian and policemen that water bags were being thrown from the hotel upon the sidewalk. The accumulated effect of these happenings was to the executive director of the hotel a “harrowing experience.” This was all before the accident to the plaintiff occurred. That the dropping of objects from the hotel windows by certain of those occupying the premises was within the range of foreseeability is evidenced by the fact that the hotel company, prior to the convention, took the precaution of cutting the comers out of hotel laundry bags so as to *384prevent their use as water containers. Moreover, it seems to us that in light of what had happened prior to the accident the management of the hotel must have been aware of the fact that in the indiscriminate throwing of glasses, bottles, and other objects in and about the hotel they might expect as part of that course of conduct that objects might he thrown from the windows to the sidewalk below. It is our view that these facts and circumstances presented a question for the jury to determine as to whether the negligent act which caused the plaintiff’s injuries was within the defendants’ range of foreseeability.

We turn next to inquire as to what precautions were taken by the defendants to protect the plaintiff as a member of the public from such foreseeable risk. It appears from the record that, after the hotel manager received the report that water bags had been dropped to the street, he said they patrolled the house and in rooms where they found “they were doing entertaining we told them to he careful about throwing out anything.” He said that it wouldn’t have done any good to try to find out the room from which the water bags were thrown, apparently for the reason that the convention was “out of control.” He said the loss of control occurred every night “Any time after seven o’clock in the evening, from seven on.” There is this testimony:

“Q. Would you say yes or no that it was the most harrowing experience you had as a hotel operator of that hotel?

“A. Well, I would say yes.

“Q. And isn’t it true that you and the other officers of the hotel were all of that view even before the convention was over?

“A. Well, I would say, yes.

“Q. Now, is it true at the conclusion of this convention that you and the other members of the hotel management were shocked by the damage done to your premises during the course of this convention?

“A. Yes, we were.”

The manager of the hotel was asked if, when Miss Connolly was injured, he did not say, “Well, here is another of those incidents. I will be glad when this convention is over.” He did not deny making *385that statement and admitted that he might have made it because that was the way he felt at the time it happened. There is this testimony from the housekeeper:

“Q. But when you have in combination in a matter of a couple days time mirrors broken, recessed lights in the hallway broken, permanent quiet signs attached to the wall tom off, when you have the exit lights damaged, when you have the hall fixtures damaged, when you have the screens damaged, as you described, when you have wash bowls tom off of the wall in the men’s room, when you have doors kicked in, when you have mouldings torn off, when you have seven holes drilled into a door of the hotel, wouldn’t you say that is a shocking experience over a two day period of time?

“A. Yes, I think it is.

“Q. The like of which you had never seen before in that interval of time with any convention in that hotel.

“A. That’s right. It really is true.”

The record establishes that the defendants made no complaint as to the conduct of the guests and invitees to any responsible official of the Junior Chamber of Commerce. Had one been made, it may be assumed that the officers of the convention could have controlled their own members. Neither did the management of the hotel complain to the authorities or ask for additional police protection. On the record we are satisfied that it was plainly a question for the jury to say whether under these unusual circumstances the defendants should have anticipated an accident such as happened and whether they should have taken some precautions by way of securing additional police or watchmen to supervise the conduct of their patrons. It is apparent from the record that, after the hotel management became aware of the disorderly character of the convention, it took no further affirmative action to protect the interests of the public. We are of the view that, once it became apparent to the defendants that the preliminary precautions which had been taken were not sufficient to protect the public from foreseeable risks which might arise from the disorderly character of the convention, the hotel had an affirmative duty to take further pre*386cautions to protect the public. Without undertaking to state precisely what precautions should have been taken by the defendants under the circumstances, we think that evidence of the defendants’ failure to hire additional guards, to secure additional police protection, or to appeal to responsible officers of the convention presented a fact question as to whether the defendants exercised due care commensurate with the circumstances. The argument may well be advanced that by “turning the other cheek,” to use an expression of the hotel’s managing director, the defendants acquiesced in the misuse of their property and became for all practical purposes participants in such misuse.

The defendants further contend that there can be no liability to the plaintiff for the reason that she was neither an invitee nor patron of their establishment. They argue that they cannot be held liable for the unauthorized acts of a third person who, while on their premises, causes injury to an occupant of a public sidewalk. It may be briefly said that, even though the plaintiff was not a patron or a guest of the defendants, a relationship existed between them at the time and place of the injury which gave rise to a legal duty on the part of the defendants. That relationship imposed an affirmative duty upon the defendants to guard the public from danger flowing from the use of their property by their guests and invitees, even though that use was not authorized by the defendants. There was a duty on the part of the defendants to members of the public at large to protect them from injury by forces set in motion as a result of the use which the defendants permitted to be made of their property. Here the plaintiff was a pedestrian within her rights as an occupant of the sidewalk on a street adjacent to the defendants’ hotel. There was evidence from which a jury could find that she was injured as a result of disorderly conduct upon the premises, the risk of which was foreseeable and in regard to which the defendants after notice failed to take measures to protect her as a member of the public. In Priewe v. Bartz, 249 Minn. 488, 491, 83 N. W. (2d) 116, 119, in discussing the rights of a patron of a 3.2 beer establishment we said that such a person “has a right to rely on the belief that he is in an orderly house and that its operator, personally or by his delegated employee, will exercise reasonable care ‘to the end that the doings in *387the house shall be orderly.’ ” By the same token it may be said that a pedestrian using a sidewalk adjacent to a hotel where intoxicating liquor is sold and dispensed may assume that the owner will exercise reasonable care to the end that the acts and conduct permitted upon the property will not expose a member of the public to the risk of bodily harm.

The conclusions we reach are supported by respected authority. In Gore v. Whitmore Hotel Co. 229 Mo. App. 910, 83 S. W. (2d) 114, a pedestrian was injured in an accident resulting from the throwing of a paper bag containing water from an upper floor of the defendant hotel while a convention of the Veterans of Foreign Wars was in progress. The manager of the hotel admitted that objects had been thrown from the hotel on every night of the convention. It was the contention of the defendant that in order to impose liability it was necessary to establish that the proprietor of the hotel had reason to foresee that the object would be dropped or thrown so that the proprietor would have notice and an opportunity to exercise reasonable care to prevent the occurrence; that the guests to whom the defendant had assigned rooms were entitled to courteous treatment; and that the defendant had no right of access to the rooms of guests. The court held, however, that the guests were under a duty to refrain from unlawful and disorderly conduct which endangered the safety of others; that a willful violation of that duty forfeited the right of the guest to possession of the room; and that when the defendant became aware of the existence of the disorderly conduct of the guest it was its duty to exercise reasonable care to abate the condition. There, as here, there was no evidence to identify the particular room from which the object was thrown. Nevertheless, the court held that it was the duty of the defendant in the exercise of reasonable care to identify the offenders and the rooms used by them in the perpetration of the wrong. In that case the house officer had checked various rooms occupied by the guests and made inquiry as to whether or not they had thrown water into the streets. The night manager also went across the street and watched windows of the hotel but could not identify any of the rooms from which the objects were thrown. The court there said (229 Mo. App. 916, 83 S. W. [2d] 118):

*388“The mere failure of defendant to exercise ordinary care to identify the rioters was not sufficient to fix liability upon it. The defendant was not liable unless it could by the exercise of ordinary care have abated the condition in time to have prevented the injury to plaintiff. The evidence was sufficient to allow the jury to find that the defendant, though it had the right to evict the wrongdoers, negligently failed to identify them and, hence, never attempted to exercise such right. Having the legal right to evict the offenders, this court cannot say as a matter of law that the defendant could not by the exercise of reasonable care have enforced this right prior to the time plaintiff was injured. The question was one for the jury.”

See, also, Weihert v. Piccione, 273 Wis. 448, 78 N. W. (2d) 757; Pfeifer v. Standard Gateway Theater, Inc. 259 Wis. 333, 48 N. W. (2d) 505; Fortier v. Hibernian Bldg. Assn. 315 Mass. 446, 53 N. E. (2d) 110; Southern Enterprises, Inc. v. Marek (Tex. Civ. App.) 68 S. W. (2d) 384. Admittedly under the facts in the Gore case there were more frequent incidents of objects having been thrown from the hotel by its occupants. But it does not seem to us that the duration or frequency of the disorderly acts is determinative. The issue is whether the proprietors of the hotel had notice of the disorderly behavior of their guests and, after having had such notice, whether they took such steps as a person of ordinary prudence would take to protect others from foreseeable hazards resulting from the disorderly conduct of their guests.

We think the authorities relied upon by the defendants may be distinguished. Wolk v. Pittsburgh Hotels Co. 284 Pa. 545, 131 A. 537, 42 A. L. R. 1081, where it was held that an innkeeper is not liable for injuries caused by a transient guest’s placing of objects on a window sill, which objects fell to the street injuring a person in an automobile, and Larson v. St. Francis Hotel, 83 Cal. App. (2d) 210, 211, 188 P. (2d) 513, 514, where a pedestrian was injured when a guest of the defendant hotel as “the result of the effervescence and ebullition of San Franciscans in their exuberance of joy on V-J Day” tossed an armchair out of a hotel window, may be distinguished in that they deal with instances of sporadic or isolated acts of which the owner did not have notice and in regard to which he had no opportunity to take steps to *389remove the danger. We think that Holly v. Meyers Hotel & Tavern, Inc. 9 N. J. 493, 89 A. (2d) 6, may also be distinguished. Under the facts in that case the court concluded (9 N. J. 496, 89 A. [2d] 7): “there was no occasion for any affirmative action” during the 2-hour period between the time the guests of the hotel who were responsible for the accident were warned by the hotel management and the time the accident occurred. These cases do not deal with facts establishing a course of disorderly conduct continuing over a period of days and under circumstances where the defendants admitted that they had lost control of the orderly management of their property and failed to do anything about it.

The defendants contend that the proof is circumstantial and that there is no evidence that the object which struck the plaintiff came from the hotel. The plaintiff was struck in the eye by a mass of moist dirt or earth. The jury could find that this object was not an accumulation of dirt which fell from the structure. The record indicates that periodic inspections were made of the exterior of the building so that there would be no sizeable collection of dirt on it. Nor was it likely that the mass of dirt or earth came from some other building. From the physical location of the place where the accident occurred and the surrounding structures, there was ample evidence from which the jury could find that the place from which the mass of dirt or earth came would be the Nicollet Hotel property. The record before us indicates that the Nicollet Hotel is a 12-story structure. The accident occurred approximately 100 feet from Washington Avenue and 100 feet from the garage entrance south of the hotel. Across the street from the hotel on Nicollet Avenue are two 4-story buildings. Nicollet Avenue is 50 feet in width. There was nothing unusual about the weather conditions and no evidence of a wind which might carry a mass of mud from a distant source. There is no evidence to indicate that the mass of mud came from a vehicle or other pedestrian. We think that under the facts in this case the evidence presents inferences which make the question of where the mass of mud came from one for the jury.

We have said many times that the law does not require every fact and circumstance which make up a case of negligence to be proved by *390direct and positive evidence or by the testimony of eyewitnesses, and that circumstantial evidence alone may authorize a finding of negligence. Negligence may be inferred from all the facts and surrounding circumstances, and where the evidence of such facts and circumstances is such as to take the case out of the realm of conjecture and into the field of legitimate inference from established facts, a prima facie case is made. Standafer v. First Nat. Bank, 243 Minn. 442, 448, 68 N. W. (2d) 362, 366; 38 Am. Jur., Negligence, § 333; Westling v. Holm, 239 Minn. 191, 58 N. W. (2d) 252.

Reversed.

Thomas Gallagher, Justice

(dissenting).

1. The question presented is whether defendant should have reasonably anticipated that someone would throw or drop some substance from a window on the Nicollet Avenue side of the hotel shortly after midnight the last day of the convention and whether it had taken reasonable precautions to prevent such conduct.

It is well settled that an innkeeper is liable to third persons for the act of a guest only where he knew, or by the exercise of ordinary care could have known, that the guest was likely to do some act that would result in injury to such third person. 28 Am. Jur., Innkeepers, § 138; Annotation, 42 A. L. R. 1088. The duty rests upon him to protect such persons from foreseeable risks attendant upon the maintenance and operation of the property and to exercise reasonable care to keep it in such condition so as not to endanger them. He is not required to guard against every conceivable or possible danger, but only against those which appear reasonably probable. Kapphahn v. Martin Hotel Co. 230 Iowa 739, 298 N. W. 901; Gore v. Whitmore Hotel Co. 229 Mo. App. 910, 83 S. W. (2d) 114; Wolk v. Pittsburgh Hotels Co. 284 Pa. 545, 131 A. 537, 42 A. L. R. 1081; Holly v. Meyers Hotel & Tavern, Inc. 9 N. J. 493, 89 A. (2d) 6.

2. When plaintiff was injured shortly after midnight, the convention had been in progress for 3 days and had reached its final stages. It had been quite disorderly. There is testimony that on previous days some of the guests had thrown or dropped ice cubes and in one instance a screen from the upper windows of the hotel. There is no evidence that *391acts of this kind had been a continuous practice during the convention, or that they had been engaged in at all on the day of plaintiff’s injury. There is no evidence that defendant knew that any such misconduct was taking place just prior to the time of the occurrence involved. Defendant had retained two men regularly employed at the hotel and had six more men to patrol its corridors and prevent disorders during the convention. In addition the convention corporation had employed two men for this purpose, and the police of the city continued to maintain a regular 24-hour beat on the sidewalks adjacent to the hotel. During previous days of the convention, when defendant’s manager had been notified that objects had been thrown from hotel windows, he had promptly checked the rooms in which he suspected such misconduct was occurring, but in each instance their occupants had denied that anyone therein had been guilty of the offenses described.

3. It is difficult to speculate as to what further precautions should reasonably have been required of defendant without making it an absolute insurer. Obviously, it could not direct its employees to enter guest rooms at random or to remain therein to prevent possible misconduct when it lacked evidence that any misconduct was occurring or was contemplated by room occupants. Not only would such procedure deprive guests of room privileges for which they had paid, but, if carried to its logical conclusion, it would require that defendant, to be exonerated from any claim of negligence, employ and station a guard in every convention guest room of the hotel during the entire convention. As stated in Larson v. St. Francis Hotel, 83 Cal. App. (2d) 210, 213, 188 P. (2d) 513, 515:

“* * * The most logical inference * * * is that the chair was thrown * * * from a window. * * * this occurrence is not such as ordinarily does not happen without the negligence of the party charged, but, rather, one in which the accident ordinarily might happen despite the fact that the defendants used reasonable care and were totally free from negligence. To keep guests and visitors from throwing furniture out windows would require a guard to be placed in every room in the hotel, and no one would contend that there is any rule of law requiring a hotel to do that.”

*3924. The situation here is distinguishable from that in Gore v. Whitmore Hotel Co. 229 Mo. App. 910, 83 S. W. (2d) 114, where convention guests had thrown placards,. feathers, telephone books, pillows, water-filled sacks, laundry bags, and like items from hotel windows for 3 days in a “regular deluge”; and from that in Pfeifer v. Standard Gateway Theater, Inc. 259 Wis. 333, 48 N. W. (2d) 505, where, for some time prior to plaintiff’s injury, objects were being thrown about a theater and the theater owner had done nothing to stop such misconduct.

5. The majority opinion recites a number of acts of misconduct on the part of the convention guests which seem to be entirely irrelevant to the issue to be determined. The fact that on a previous day, following the convention parade, beer bottles and beer cans had been left on the sidewalk adjacent to the Hennepin Avenue side of the hotel is not evidence that such articles had been thrown or dropped from the hotel windows. The same is true as to beer bottles and beer cans placed upon the third-floor fire escape on the day prior to the accident. Evidence of objects being dropped or thrown from the hotel on two or three isolated occasions is far from evidence of a deluge which might require prompt and positive preventative measures by a hotel proprietor as in Gore v. Whitmore Hotel Co. 229 Mo. App. 910, 915, 83 S. W. (2d) 114, 117. An animal mascot in the hotel lobby and others on an upper floor of the hotel; broken glass on the sidewalk near the garage; and the firing of guns in the hotel lobby bear no relationship to defendant’s obligation to use reasonable care to prevent articles from being thrown from its upper windows. Evidence of wet carpets, broken chairs, broken screens, and soiled walls inside the hotel, all resulting from misconduct on the part of convention guests, is likewise totally unrelated to the issue to be determined here.

6. It is suggested that all such factors might support a finding of negligence based upon defendant’s failure to “properly police the premises” or to “furnish a sufficient number of servants to afford reasonable protection.” As pointed out above, to satisfy such a requirement would impose upon a hotel owner the obligation of stationing a guard in each room in which a convention guest was quartered so that its occupants might be kept under constant surveillance day and night. *393Such is not the obligation which has been imposed upon innkeepers or hotel owners by any decision on this subject. As stated in Bruner v. Seelbach Hotel Co. 133 Ky. 41, 49, 117 S. W. 373, 376, where a hotel owner was absolved from liability for the action of a guest in throwing a beer bottle into the street:

“* * * It is only when they [the hotel owners] know, or by the exercise of ordinary care could know, that the guest’s conduct is such that injury will naturally result to others, that they have the right to eject the guest, or take precautions to control his conduct.”

The rule of conduct prescribed by the majority opinion would seem to eliminate any possibility of an innkeeper or hotel owner escaping the charge of negligence in connection with any injuries which might occur during a hotel convention regardless of any reasonable care or precautions taken by them.

Matson, Justice

(dissenting).

I concur in the dissent of Mr. Justice Thomas Gallagher.

Knutson, Justice

(dissenting).

I concur in the dissent of Mr. Justice Thomas Gallagher.

Cardozo, J.

The action is one to recover damages for injuries resulting in death.

Plaintiff and her husband, while driving toward Tarry-town 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 *167 that 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 óf 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.

*168 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, 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 *169 safeguard 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 *170 under 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. Jf 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 *171 it 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 *172 to 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 *173 twenty-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 *174 ant) 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.”

*175 The 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 *176 close 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,” *177 two 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 *178 defendant 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 *179 did 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 *180 lessly 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 *181 request 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 *182 infer 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.

His cock, Ch. J., Pound, McLaughlin, Andrews and Elkus, JJ., concur with Cardozo, J.; Hogan, J., reads dissenting opinion.

Order affirmed.

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, *126 on 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 *127 defendants 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 erf 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 *128 pedestrian 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 *129 the 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 *130 measure 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 *131 guards 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 *132 danger 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 *133 statute 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 acci dents 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., Htjbbs, Loughran and Bsppey, JJ., concur; O’Brien and Finch, JJ., dissent on the authority of Martin v. Herzog (228 N. Y. 164).

Judgments affirmed.

Cardozo, Ch. J.

A radiator placed about ten or twelve inches from the edge of an unprotected hoistway and parallel thereto fell down the shaft and killed a man below.

In this action to recover damages for his death, the defendant Rockwood Sprinkler Company has been held liable on the ground that its servants negligently struck the radiator and thus brought about the fall; the defendant LeBeau has been held liable on the ground that his servants negligently placed the radiator in dangerous proximity to the. shaft; and the defendant Turner Construction Company has been held hable on the ground of an omission to fence the shaft in the manner called for by statute.

The liability of the Rockwood Sprinkler Company is hardly doubtful. The negligence of its servants in dislodging the radiator was plainly a contributing cause.

The liability of LeBeau, though not so certain, may *353 fairly be upheld. The inference is a permissible one that it was by the act of his servants, and not by the act of others, that the radiator was left in the place from which it fell. Reasonable men might not unreasonably say that there was warning of peril when a thing so easily dislodged was placed in close proximity to an open and unguarded hoistway. Liability is not defeated by the fact that the thing could not be. moved without the co-operative negligence of others (Sweet v. Perkins, 196 N. Y. 482). One may not place an engine of destruction in a position where a heedless touch by some one else will awaken its destructive power (cf. Teasdale v. Beacon Oil Co., 266 Mass. 25, 28; Pastene v. Adams, 49 Cal. 87; Lane v. Atlantic Works, 111 Mass. 136). At least a jury may so find (O’Neill v. City of Port Jervis, 253 N. Y. 423, 433).

A question even closer arises with reference to the liability of the Turner Construction Company, the general contractor.

Section 241, subdivision 5, of the Labor Law (Cons. Laws, ch. 31) (as it stood at the time of the accident) contained the following provisions: " If elevators, elevating machines or hod-hoisting apparatus are used within a building in the course of construction, for the purpose of lifting materials to be used, the shafts or openings in each floor shall be inclosed or fenced in on all sides by a barrier of suitable height, except on two sides which may be used for taking off and putting on materials, and those sides shall be guarded by an adjustable barrier not less than three nor more than four feet from the floor and not less than two feet from the edges of such shafts or openings.”

The violation of a statute calling for a prescribed Safeguard-in the construction of a building does not establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury (Am. Law Inst., Restatement of Torts [No. 4], § 176; Lang v. N. Y. C. R. R. Co., 227 N. Y. *354 507; 255 U. S. 455; Boronkay v. Robinson & Carpenter, 247 N. Y. 365; DiCaprio v. N. Y. C. R. R. Co., 231 N. Y. 94).

The chief object of this statute is to protect workmen from the hazard of falling into a shaft. ' We cannot say, however, that no other hazard was within the zone of apprehension. On two sides of the shaft there must be a solid or comparatively solid fence. Only on the other sides where material is taken on or off may there be a single bar. If there was no thought to give protection against falling missiles or debris, the lawmakers might well have stopped with a requirement that there be a single bar on every side. The fact that they did not stop there is evidence of a broader purpose. True, indeed, it is that on two of the four sides the security is only partial and imperfect. A barrier set in place at a height of four feet will often be of little avail in holding back material or rubbish collected on the floor. Even so, security against the hazard of falling objects will not be lacking altogether. One of the requirements of the statute is that the guard shall be placed at least two feet from the edge. In a barrier so fixed there is warning,- if no more. Workmen, who may otherwise be tempted to store material in dangerous proximity to the edge of an open shaft will be reminded of the danger and will tend to stand afar. The thoughtless will be checked, though the recklessly indifferent will be free to go their way.

The potencies of protection that reside in such a barrier have illustration in the case before us. If the hoistway had been guarded, it is unlikely that the radiators thirty-eight inches high would have been placed as they were within falling distance of the edge. It is still less likely that a worker would heedlessly have brushed against them and so brought about the fall. We do not mean to say that these considerations are decisive. Liability is not established by a showing that as chance would have it a statutory safeguard might have avoided the particular *355 hazard out of which an accident ensued. The hazard out of which the accident ensued must have been the particular hazard or class of hazards that the statutory-safeguard in the thought and purpose of the Legislature was intended to correct (Lang v. N. Y. C. R. R. Co., supra; DiCaprio v. N. Y. C. R. R. Co., supra). None the less, the sequence of events may help to fix the Units of a purpose that would be obscure if viewed alone. A safeguard has been commanded, but without distinct enumeration of the hazards to be avoided. In the revealing Ught of experience the hazards to be avoided are disclosed to us as the hazards that ensued.

The judgment should be affirmed with costs.

Pound, Crane, Lehman, O’Brien and Hubbs, JJ., concur; Kellogg, J., not sitting.

Judgment affirmed.

TROUT, Justice.

Frank and Leslie O’Guin, acting as individuals and as legal guardians of Frank O’Guin Jr. (the O’Guins), appeal the district court’s grant of summary judgment in favor of Bingham County, Bingham County Commissioners and Bingham County Public Works, (collectively the County). Because the district court erred in its determinations regarding the negligence per se claim, we reverse the grant of summary judgment.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On July 7, 1999, Shaun and Alex O’Guin were killed while playing at the Bingham County landfill. Apparently, a section of the pit wall collapsed and crushed the children. Their older brother, Frank Jr., initially discovered them bodies at the bottom of the pit. Earlier that day, the children had been eating lunch at Ridgecrest Elementary School as part of a summer lunch program. As they started walking home, the children went through an unlocked gate at the back of the schoolyard and through a privately owned empty field. The empty field is situated between the landfill and the schoolyard. The border between the empty field and the landfill was unobstructed. At the time of the children’s death, the landfill was open to the public one day a week. It was closed on the day the children were killed and no landfill employees were present on the site.

The O’Guins filed an action alleging the landfill was an attractive nuisance and that the County breached certain legal duties to control access to the landfill. The County filed a motion for summary judgment. In ruling on the motion, the district court dismissed the attractive nuisance claim for failure to assert facts that prove an essential element of the claim but denied the motion as to the common law negligence claim and the negligence per se claim. The County requested permission to appeal and in response to the County’s request, the district court sua sponte reconsidered its original decision on the motion for summary judgment and issued a substitute decision. In its substitute decision, the district court granted summary judgment to the County on all claims. On appeal to this Court, we affirmed summary judgment on the attractive nuisance and common law negligence claims. Because the district court’s substitute decision did not address the negligence per se claim, we remanded the case to the district court for further consideration. See O’Guin v. Bingham County, 139 Idaho 9, 72 P.3d 849 (2003). Upon remand, the County renewed its motion for summary judgment on the negligence per se claim and the district court granted the motion. The O’Guins again appealed.

II.

STANDARD OF REVIEW

“Generally, the question of whether a duty exists is a question of law, over which we exercise free review.” Udy v. Custer County, 136 Idaho 386, 389, 34 P.3d 1069, 1072 (2001). Negligence per se, which results from the violation of a specific requirement of law or ordinance, is a question of law, over which this Court exercises free review. Ahles v. Tabor, 136 Idaho 393, 395, 34 P.3d 1076, 1078 (2001).

III.

ANALYSIS

A. Negligence Per Se Claim

The dispute in this case focuses on the duty or standard of care the County owed to the O’Guin children. The parties disagree on how the common law duty of a landowner to a trespasser affects the statutory duty of a landfill owner. The O’Guins argue that once the district court determined the regulations established a duty and the County had breached that duty, there was no need to apply the common law willful or wanton stan*52dard. The County argues that because the O’Guin children were trespassers, even if the requirements of negligence per se are met, the O’Guins must still prove that the County’s conduct was willful or wanton, and the O’Guins have failed to allege that in their complaint. The County also argues that negligence per se does not apply here.

“The elements of a common law negligence action are (1) a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual loss or damage.” Black Canyon Racquetball Club, Inc. v. Idaho First Nat’l Bank, N.A., 119 Idaho 171, 175-76, 804 P.2d 900, 904-05 (1991). The distinction between trespassers, licensees and invitees is the controlling test in determining the scope and extent of the duty of care owed by landowners to entrants. See Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980). “A landowner’s duty to a trespasser is to refrain from willful or wanton acts which might cause injury.” Peterson v. Romine, 131 Idaho 537, 540, 960 P.2d 1266, 1269 (1998) (citing Huyck, 101 Idaho at 301, 612 P.2d at 144). In the first appeal in this case, this Court held “the facts before the district court support the court’s conclusion that the boys were trespassing at the time of the accident.” O’Guin v. Bingham County, 139 Idaho 9, 13, 72 P.3d 849, 853 (2003). This Court also affirmed the summary judgment entered against the O’Guins on the common law negligence claim because the complaint “[did] not allege any willful or wanton conduct by the County [nor a] breach of the duty owed to a trespasser.” Id. at 15, 72 P.3d at 855.

Negligence Per se

“[I]n Idaho, it is well established that statutes and administrative regulations may define the applicable standard of care owed, and that violations of such statutes and regulations may constitute negligence per se.” Sanchez v. Galey, 112 Idaho 609, 617, 733 P.2d 1234, 1242 (1986). “A court may adopt ‘as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation Brizendine v. Nampa Meridian Irr. District, 97 Idaho 580, 586, 548 P.2d 80, 86 (1976) (quoting Restatement (Second) of Torts § 286 (1965)). “The effect of establishing negligence per se through violation of a statute is to conclusively establish the first two elements of a cause of action in negligence____” Slade v. Smith’s Management Corp., 119 Idaho 482, 489, 808 P.2d 401, 408 (1991). “Negligence per se lessens the plaintiffs burden only on the issue of the ‘actor’s departure from the standard of conduct required of a reasonable man.’ ” Ahles v. Tabor, 136 Idaho 393, 395, 34 P.3d 1076, 1078 (2001) (quoting Restatement (Second) of Torts § 288B cmt. B (1965)). “Thus, the elements of duty and breach are ‘taken away from the jury.’ ” Ahles, 136 Idaho at 395, 34 P.3d at 1078 (quoting Prosser and Keeton on Torts 230 (5th ed.1984)).

In order to replace a common law duty of care with a duty of care from a statute or regulation, the following elements must be met: (1) the statute or regulation must clearly define the required standard of conduct; (2) the statute or regulation must have been intended to prevent the type of harm the defendant’s act or omission caused; (3) the plaintiff must be a member of the class of persons the statute or regulation was designed to protect; and (4) the violation must have been the proximate cause of the injury. Ahles, 136 Idaho at 395, 34 P.3d at 1078 (citing Sanchez v. Galey, 112 Idaho 609, 617, 733 P.2d 1234, 1242 (1986)).

As to the first element, the district court found, and we agree, that the statute and regulations in this case clearly define the County’s standard of conduct. Idaho Code Title 39, Chapters 1 and 74 grant authority to the Board of Environmental Quality to adopt solid waste management rules and standards. Those rules require municipal solid waste landfill units to block access by unauthorized persons. The rule in effect at the time of the boys’ deaths provided in pertinent part:

Solid waste management sites shall comply with the following:

*53e. Access to the site shall be limited to those times when an attendant is on duty.

i. Hours of operation and other limitations shall be prominently displayed at the entrance.

ii. The site shall be fenced or otherwise blocked to access when an attendant is not on duty.

iii. Unauthorized vehicles and persons shall be prohibited access to the site.

IDAPA 58.01.06.005.02. In addition, Idaho Code § 39-7412(6) states that owners or operators of all municipal solid waste landfill units shall “[pjrovide and control access as provided in 40 CFR 258.25.” That section of the Code of Federal Regulations states:

Owners or operators of all municipal solid waste landfill units must control public access and prevent unauthorized vehicular traffic and illegal dumping of wastes by using artificial barriers, natural barriers, or both, as appropriate to protect human health and the environment.

40 C.F.R. § 258.25. These regulations require the County to fence or otherwise block access to the landfill when an attendant is not on duty. The Legislature has specifically declared it to be “unlawful” to fail to comply with the landfill rules. I.C. § 39-7402(1). In this case, the record reveals that on July 7, 1999, some of the landfill boundaries were not fenced or blocked. There is also evidence that the landfill was closed and no attendant was on duty on July 7, 1999. Therefore, the district court was correct that the regulations clearly define the County’s required standard of conduct, and the County failed to meet that standard.

The second element asks whether the death of the O’Guin children is the type of harm the statute and regulations were intended to prevent. Idaho Code Section 39-7401(2) states:

[I]t is the intent of the legislature to establish a program of solid waste management which complies with 40 CFR 258 and facilitates the incorporation of flexible standards in facility design and operation. The legislature hereby establishes the solid waste disposal standards and procedures outlined herein and a facility approval process for the state of Idaho, the political subdivisions thereof, and any private solid waste disposal site owner in order to facilitate the development and operation of solid waste disposal sites, to effect timely and responsible completion of statutory duties and to ensure protection of human health and the environment, to protect the air, land and waters of the state of Idaho.

I.C. § 39-7401(2). This section demonstrates the legislature’s desire to ensure the “protection of human health” in the “development and operation of solid waste disposal sites.” It also makes specific reference to 40 C.F.R. § 258. As quoted previously, Section 258.25 of the Code of Federal Regulations states “[ojwners or operators of all municipal solid waste landfill units must control public access ... by using artificial barriers, natural barriers, or both, as appropriate to protect human health____” Further indication of the intent of this section can be found in the Technical Manual on Solid Waste Disposal Facility Criteria (Manual) promulgated by the United States Environmental Protection Agency. The Manual contains a disclaimer that the policies set forth in the Manual are not intended to create any enforceable rights in litigation and are simply for guidance. However, the Manual can serve to give further insight into the interpretation of the provisions in the CFR. Specifically, Section 3.7.3 entitled “Technical Considerations” relates to the access requirements of 40 CFR

§ 258.25 and provides in part

Frequently, unauthorized persons are unfamiliar with the hazards associated with landfill facilities, and consequences of uncontrolled access may include injury and even death. Potential hazards are related to inability of equipment operators to see unauthorized individuals during operation of equipment and haul vehicles; direct exposure to waste (e.g., sharp objects and pathogens); inadvertent or deliberate fires; and earth-moving activities.

This provision indicates a broad definition of what is intended by “protection of human health” and certainly includes possible injury or death to people on the facility grounds. Operators of a landfill have a duty not only to *54prevent illegal dumping and unauthorized vehicular traffic, but to control public access as well.

The County argues that the intent of these provisions is merely to prevent unauthorized vehicular traffic and illegal dumping. However, the inclusion of physical injury to “unauthorized individuals” by equipment or earth-moving activities, as potential landfill hazards, would indicate otherwise. A similar hazard is presented by a dangerously sloping wall in the landfill. The O’Guin’s expert testified that the angle of the slope where the accident occurred “was extremely dangerous” and violative of EPA and OSHA regulations. These statutes and rules demonstrate that the Legislature intended to safeguard both human health and safety.1 The injury to the safety of the O’Guin children is the type of harm the Idaho statute and regulations were intended to prevent because the children’s deaths relate directly to control of public access and protection of human health and safety.

As to the third element, the O’Guin children are members of the class of persons the regulations were designed to protect. The regulations state “Unauthorized vehicles and persons shall be prohibited access to the site.” IDAPA 58.01.06.005.02. As trespassers, the O’Guin children were certainly “unauthorized persons” and the regulations do not differentiate between the unauthorized person who comes to the landfill to dump improper materials and the unauthorized person who comes to the landfill to play. Furthermore, the regulations require the landfill “be fenced or otherwise blocked to access when an attendant is not on duty.” IDAPA 58.01.06.005.02. This regulation demonstrates the connection between the requirement that the landfill perimeter be fenced or blocked and the protection of persons whose access is unauthorized. Therefore, the regulations controlling access were designed to protect the human health and safety of the unauthorized person who comes to a landfill when an attendant is not on duty and the O’Guin children fit within that category.

Finally, as to the fourth element, there is at least a disputed issue of fact created by an affidavit in the record, as to whether the County’s violation of the statute and regulations resulted in the O’Guin children’s deaths.

Statutory Duty

After concluding the regulations established a duty and that the County had breached that duty, the district court held “the O’Guins’ allegations of negligence per se do not change the duty owed by the County to trespassers.” This was error. There was no need for the district court to look to the common law duty owed to trespassers once it determined the statutory duty applied. “Liability may become established upon proof that the violation of the statute caused the injuries of the plaintiff and the plaintiffs subsequent damages.” Slade v. Smith’s Management Corp., 119 Idaho 482, 489, 808 P.2d 401, 408 (1991) (citing Leliefeld v. Johnson, 104 Idaho 357, 370, 659 P.2d 111, 124 (1983)). A statute that adequately defines the required standard of care “supplants the reasonable person standard encompassed in the concept of ordinary negligence.” Ahles, 136 Idaho at 395, 34 P.3d at 1078 (citing 57A Am.Jur.2d Negligence § 748 (1989)). If a breach of the County’s statutory duty requires willful or wanton conduct, imposition of the common law’s higher burden would be contrary to the express language of the statute and essentially remove the statutory command to fence or otherwise block access to unauthorized users.

Relying upon this Court’s decision in Petersen v. Parry, 92 Idaho 647, 448 P.2d 653 (1968), the district court held the O’Guins were required “to demonstrate that the County willfully and wantonly violated the IDEQ Rules and Standards governing access *55control.” In Petersen, two cars collided and all occupants were killed. The parents of a minor occupant brought an action for negligence. Prior to the collision, the cars were traveling in opposite directions, with one car driving on the right half of the roadway while the other car was driving substantially on the wrong half of the roadway. The parents sought to use the violation of a statute that required vehicles be driven on the right half of the roadway to establish negligence per se. This Court noted that under the facts of the case, violation of the statute constituted negligence per se but that a separate statute increased the burden of proof to require a showing of “gross negligence.” At the time, the other statute was known as I.C. § 49-1401. It stated:

Liability of motor owner to guest — No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause for damages against such owner or operator for injures, death or loss, in case of accident, unless such accident shall have been intentional on the part of the said owner or operator or caused by his intoxication or gross negligence.

This Court concluded that because the deceased minor was a guest within the purview of the statute and because there was no contention that the accident was intentional or caused by intoxication, liability had to be predicated upon evidence showing conduct that constituted gross negligence. Petersen, 92 Idaho at 654, 448 P.2d at 660. It was in that context that this Court held:

‘[Njegligence per se’ merely means ‘ordinary negligence per se.’ I have found no Idaho authority holding that the naked violation of a positive statute such as [the statute requiring vehicles be driven upon the right half of the roadway] constitutes gross negligence per se____

Id. at 653, 448 P.2d at 659. The O’Guins’ situation is distinguishable from the situation in Petersen. Although both cases involved the violation of a statute or regulation (the violation in Petersen was driving on the wrong side of the road; the violation in this case is the County not fencing or preventing unauthorized access), the plaintiffs in Petersen were required by an unrelated statute to show the defendant’s conduct constituted gross negligence. Unlike the situation in Petersen, there is no statute applicable to the O’Guins that raises them burden of proof. The district court in this case apparently thought the common law duty owed by a landowner to trespassers to refrain from wanton or willful conduct, was analogous to the statute in Petersen that raised the burden of proof. This is shown by the district court’s comparison of Petersen to the O’Guins. The district court stated:

[T]he plaintiffs [in Petersen ] were still required to demonstrate gross negligence despite the fact that the driver was guilty of “ordinary” negligence per se. Therefore, where, as in this case, a more onerous burden of proof is imposed upon a plaintiff, proof of a “naked” violation of a statutory duty of care by the defendant will not meet that more onerous burden of proof.

The analogy between the statute in Petersen and the common law duty of landowners in O’Guin is flawed. The guest statute in Petersen was an express mandate by the legislature specifically designed to raise the burden of proof to a level higher than that required in ordinary actions for damages against owners or operators of vehicles. On the other hand, the common law duty of landowners to trespassers merely defines the standard of conduct a reasonable landowner in a common law negligence action owes to trespassers. Standing alone, the regulations in this case are sufficient to satisfy the duty element for a negligence per se action. The O’Guins’ use of statutory obligations to establish the County’s duty under a negligence per se action replaces the common law duty of landowners to trespassers. Consequently, the district court erred in requiring the O’Guins to plead and prove a willful and wanton violation of the landfill owner regulations.

B. Attorney Fees On Appeal

The County requests attorney fees on appeal pursuant to I.C. § 6-918A, That section requires “a showing, by clear and convincing evidence, that the party against whom or which such award is sought was *56guilty of bad faith in the commencement, conduct, maintenance or defense of the action.” I.C. § 6-918A. Because there is no indication that the O’Guins were guilty of bad faith in the commencement, conduct, or maintenance of this action, and indeed, have prevailed twice now on appeal, there is no basis for an award of attorney fees.

IV.

CONCLUSION

The district court erred in determining that the County’s violations here were not negligence per se and by applying the common law willful or wanton standard to the O’Guins’ claim. The district court’s grant of summary judgment is vacated and the case remanded for further proceedings. We award costs on appeal to the O’Guins.

Justice EISMANN,

Dissenting.

I cannot concur in the majority opinion because the regulations cited therein as supporting a claim of negligence per se were clearly not intended to prevent the type of harm involved in this case.

I agree that the common law rule regarding the liability of a landowner to trespassers can be modified by legislation or an administrative regulation that modifies the applicable standard of care. To base a claim of negligence upon the violation of a statute or regulation, however, the statute or regulation must have been intended to prevent the type of harm the defendant’s act or omission caused. Munns v. Swift Transp. Co., Inc., 138 Idaho 108, 58 P.3d 92 (2002).

The majority opinion relies upon IDAPA 58.01.06.005.02 and 40 C.F.R. 258.25 as providing the applicable standard of care. Neither of those regulations is intended to prevent trespassers from injuring themselves through an accident at a landfill. They are intended to prevent trespassers from dumping or salvaging materials that may be harmful to health or the environment.

The purpose of the IDAPA rules is stated in IDAPA 58.01.06.004.01 and .02, which provide:

01. Solid Waste Management. All solid waste shall be managed, whether it be during storage, collection, transfer, transport, processing, separation, incineration, composting, treatment, reuse, recycling, or disposal, to prevent health hazards, public nuisances, or pollution of the environment.

02. Requirements. Solid wastes shall be managed such that they shall not:

a. Provide sustenance to rodents or insects which are capable of causing human disease or discomfort.

b. Cause or contribute to the pollution of the air.

c. Cause or contribute to the pollution of surface or underground waters.

d. Cause excessive abuse of land.

e. Cause or contribute to noise pollution.

f. Abuse the natural aesthetic quality of an area.

g. Physically impair the environment to the detriment of man and beneficial plant life, fish, and wildlife.

The regulations are intended to protect against health hazards from pollution and disease. They are not intended to protect against injury from accidents. The same holds for 40 C.F.R. 258.25, which states:

Owners or operators of all MSWLF [municipal solid waste landfill] units must control public access and prevent unauthorized vehicular traffic and illegal dumping of wastes by using artificial barriers, natural barriers, or both, as appropriate to protect human health and the environment.

The concern is illegal dumping of wastes that are dangerous to human health and the environment. The word “health” is not normally construed to include freedom from accidents. Rather, it simply means “freedom from disease or abnormality.”2 The majority can *57reach its conclusion only by redefining the word “health” to include “safety.” Such redefinition is not supported either by Idaho law or by the federal regulations.

Idaho Code § 39-7401(2) states that the legislature’s intent when it adopted the Idaho Solid Waste Facilities Act was “to establish a program of solid waste management which complies with 40 C.F.R. 258.” The purpose of Section 258 is to establish minimum national criteria for all municipal solid waste landfills which will “ensure the protection of human health and the environment.” 40 C.F.R. 258.1(a). Consistent with that purpose, Section 258.25 requires owners or operators of municipal solid waste landfill units to “control public access and prevent unauthorized vehicular traffic and illegal dumping of wastes by using artificial barriers, natural barriers, or both, as appropriate to protect human health and the environment.” 40 C.F.R. 258.25. The regulation only requires barriers to prevent “unauthorized vehicular traffic and illegal dumping of wastes.” The required barriers need not be able to keep out trespassing pedestrians who may accidentally injure themselves at the landfill.

The majority quotes a portion of § 3.7.3 from the Solid Waste Disposal Facility Criteria technical manual for its construction of 40 C.F.R. § 258.25 in order to arrive at the conclusion that Bingham County was required to fence out trespassing pedestrians from its landfill. Reading that entire subsection of the technical manual shows that the majority’s interpretation is wrong. The last paragraph of that subsection states:

Acceptable measures to limit access of unauthorized persons to the disposal facility include gates and fences, trees, hedges, berms, ditches, and embankments. Chain link, barbed wire added to chain link, and open farm-type fencing are examples of fencing that may be used. Access to facilities should be controlled through gates that can be locked when the site is unsupervised. Gates may be the only additional measure needed at remote facilities.

Obviously, barriers consisting of “trees, hedges, berms, ditches, and embankments” or “open farm-type fencing” are not designed to keep out trespassing pedestrians. They are only designed to keep out vehicles that may be transporting waste into the facility when it is closed. The fact that these types of barriers are expressly stated as being acceptable shows that the regulation was not intended to require municipal solid waste disposal facilities to fence out trespassing pedestrians.

The federal regulation dealing with the physical safety, as opposed to the health, of trespassers entering the landfill is 40 C.F.R. 257.3-8(d). That regulation, which is entitled “Safety,” states, “A facility or practice shall not allow uncontrolled public access so as to expose the public to potential health and safety hazards at the disposal site.” If the word “health” included “safety,” as the majority contends, then there would have been no reason to adopt 40 C.F.R. 257.3-8(d). It *58would merely be surplusage. Indeed, if the word health included safety then there would be no reason for 40 C.F.R. 257.3 — 8(d) to expressly mention both health and safety. Although 40 C.F.R. 257 requires prohibiting uncontrolled public access in order to protect against potential “safety hazards at the disposal site,” such regulation does not apply in this ease.3

Finally, the majority notes in footnote 1 of its opinion that years after the accident in this case IDAPA 58.01.06.011-013 was amended to require that landfills comply with 40 C.F.R. 257.1-.3 within two years after April 26, 2002. The majority contends that this amendment supports its position because “Sub-part 8 of that C.F.R. regulation, entitled ‘Safety,’ states in pertinent part, ‘A facility or practice shall not allow uncontrolled public access so as to expose the public to potential health and safety hazards at the disposal site.’ ”

I cannot see how this amendment supports the reasoning of the majority opinion. IDA-PA 58.01.06.004 already required that landfills be managed “to prevent health hazards,” and such management include limiting access to the site to those times when an attendant is on duty. If the word “health” was already intended to include “safety,” then there would have been no need to later amend IDAPA to incorporate the safety requirements set forth in 40 C.F.R. 257.3-8. Rather than supporting the majority’s argument, this amendment to IDAPA shows that at the time of the accident in this case, the meaning of the word “health” did not include “safety.” Rather, health should simply be given its usual, plain, and ordinary meaning. Although this was a tragic accident, it is not proper for this Court to retroactively amend the regulations to require municipalities to fence out trespassing pedestrians.

*581 OPINION OF THE COURT

Titone, J.

Injured by another customer’s runaway car while he was on the premises of a self-service filling station, plaintiff sued the premises owner on the theory that it had a duty to ensure that all of its customers abided by regulations requiring their vehicle engines to be turned off during the operation of the gas pumps. We conclude, however, that defendant filling station owner had no duty to protect its customers from the unforeseeable occurrence that led to plaintiff’s injury and that, accordingly, the complaint against that defendant was properly dismissed.

Defendant United Refining Co. (URC) owns and operates a self-service filling station in Rochester. According to the complaint allegations and summary judgment submissions, the injury-producing accident occurred on defendant’s premises on April 15,1991. At about 1:00 p.m. on that date, plaintiff Richard Di Ponzio drove into defendant’s gas station, exited his car and began to fill his tank with fuel. At approximately the same time, defendant Michael Riordan drove his car into the gas station, stopped opposite plaintiff’s vehicle and, without turning off his engine, began pumping gas into his vehicle. Riordan stated during his deposition testimony that the pavement was relatively level and that he placed his console gearshift in the park position.

Riordan took about five minutes to pump gas into his car and then went inside the gas station’s storefront enclosure to pay the attendant for his fuel. He left his vehicle running because he had been experiencing problems with the carburetor and was afraid that he would not be able to restart the vehicle if he turned its ignition off. When he exited the store and began walking toward the car, he noticed that it was moving backward toward the rear of plaintiff’s vehicle, where plaintiff was still pumping gas. Riordan moved toward the vehicle, but he was unable to reach it in time to stop it from striking plaintiff. Plaintiff, who was pinned between the two cars, suffered a fractured leg.

Plaintiff and his spouse subsequently commenced the present personal injury action against Riordan and URC. Plaintiffs’ theory against defendant URC was that it had been negligent in failing to properly train its attendants and that its attendants had been negligent in failing to comply with URC rules requiring that customers be warned to turn off their *582 engines while fueling their vehicles. In support of their claim, plaintiffs cited information obtained during discovery that URC attendants were not supposed to allow customers to pump gas while their engines were running and that the attendants had the ability to turn off a particular pump in the event that a customer refused to comply. They also relied on deposition testimony that on the day of the accident URC’s attendants had deliberately turned down the sound on an intercom system that would otherwise have enabled them both to hear the sound of Riordan’s engine and to admonish him to turn it off.

Following discovery, defendant URC moved for summary judgment dismissing the complaint on several grounds, including the lack of a cognizable legal duty, the lack of a proximate causal relationship between its alleged negligence, if any, and the accident and the unforeseeability of the accident. Supreme Court denied the motion, holding that URC, as the premises owner, had a duty to exercise reasonable care and that the questions of foreseeability and proximate cause should be resolved by the fact finder.

On URC’s appeal, the Appellate Division reversed and dismissed the complaint against URC. Two of the Justices concluded that URC should not be held liable because the accident was not foreseeable. A third Justice concurred on the separate ground that URC had no duty to protect its customers from "the unforeseeable risk that another patron’s car would suffer a mechanical malfunction or inexplicably jump into gear.” (224 AD2d 139, 147.) Additionally, the concurrer opined that any alleged negligence on URC’s part was not the proximate cause of the accident. The remaining two Appellate Division Justices dissented for the reasons set forth in the Supreme Court opinion. Plaintiffs then appealed to this Court pursuant to CPLR 5601 (a). 1

The threshold issue in this negligence action is whether defendant URC had a legally cognizable duty to prevent the accident in which plaintiff Di Ponzio was injured (see generally, Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 584-585). It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition (see, e.g., Kush v City of Buffalo, 59 NY2d 26; Basso v Miller, 40 NY2d 233). It is also clear that this duty may extend to controlling the conduct of third persons who *583 frequent or use the property, at least under some circumstances (see, Pulka v Edelman, 40 NY2d 781, 783). The duty of a landowner or other tort defendant, however, is not limitless. It is an elementary tenet of New York law that "[t]he risk reasonably to be perceived defines the duty to be obeyed” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 344).

The existence and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the court (see, Palka v Servicemaster Mgt. Servs. Corp., supra, at 585). In analyzing questions regarding the scope of an individual actor’s duty, the courts look to whether the relationship of the parties is such as to give rise to a duty of care (see, e.g., Waters v New York City Hous. Auth., 69 NY2d 225; Pulka v Edelman, supra, at 783), whether the plaintiff was within the zone of foreseeable harm (see, e.g., Palsgraf v Long Is. R. R. Co., supra) and whether the accident was within the reasonably foreseeable risks (see, e.g., Danielenko v Kinney Rent A Car, 57 NY2d 198). The nature of the inquiry depends, of course, on the particular facts and circumstances in which the duty question arises. The analysis is also driven by considerations of public policy. As we stated in Waters v New York City Hous. Auth. (supra, at 229), "[t]he common law of torts is, at its foundation, a means of apportioning risks and allocating the burden of loss.”

In this case, the focus of the inquiry is on the foreseeability of the risk. Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated (Prosser and Keeton, Torts § 31, at 169-170, and n 15 [5th ed]). Further, although virtually every untoward consequence can theoretically be foreseen "with the wisdom born of the event” (Greene v Sibley, Lindsay & Curr Co., 257 NY 190, 192), the law draws a line between remote possibilities and those that are reasonably foreseeable because "[n]o person can be expected to guard against harm from events which are * * * so unlikely to occur that the risk * * * would commonly be disregarded” (Prosser and Keeton, op. cit, § 31, at 170; see, e.g., Danielenko v Kinney Rent A Car, supra).

A related problem, also implicated here, is the need to analyze the relationship between the risk created by the actor’s conduct and the actual occurrence that caused the harm. It is often said that plaintiffs need not demonstrate the foreseeability of the precise manner in which the accident occurred or *584 the precise type of harm produced in order to establish the foreseeability component of their tort claims (e.g., Palsgraf v Long Is. R. R. Co., 248 NY 339, 344, supra; Bahan v Green Bus Lines, 96 AD2d 876, affd on opn below 61 NY2d 922; see also, Derdiarian v Felix Contr. Corp., 51 NY2d 308). This principle is sometimes mistakenly cited to support an argument that a careless act should lead to liability even though the injury-producing accident itself occurred in an unexpected manner. Such arguments, however, are misguided to the extent that they fail to recognize the analytically important distinction between the concept of risk or hazard and the concept of harm.

The Restatement (Second) of Torts is useful in clarifying this often misconstrued principle. As is explained in section 281, comment e, conduct is considered negligent when it tends to subject another to an unreasonable risk of harm arising from one or more particular foreseeable hazards (Restatement [Second], of Torts § 281, at 6). When the person is harmed by an occurrence resulting from one of those hazards, the negligent actor may be held liable. In contrast, where the harm was caused by an occurrence that was not part of the risk or recognized hazard involved in the actor’s conduct, the actor is not liable (see, id., comment f). The following example taken directly from the Restatement provides a useful illustration of the point:

"A gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol, wounding C. A is subject to liability to C, but not to D” (id., comment f, illustration 3, at 7).

As this hypothetical fact pattern makes clear, where an individual breaches a legal duty and thereby causes an occurrence that is within the class of foreseeable hazards that the duty exists to prevent, the individual may be held liable, even though the harm may have been brought about in an unexpected way. On the other hand, no liability will result when the occurrence is not one that is normally associated with such hazards. Significantly, the kind and number of hazards encompassed within a particular duty depend on the nature of the duty (see, id., comment e).

The gist of plaintiffs’ claim is that defendant URC’s servants were negligent in failing to monitor its customers’ conduct and, more specifically, in failing to require Riordan to turn off *585 his vehicle’s engine despite having had the means and obligation to do so. Assuming without deciding that URC had a duty to control its customer’s conduct in this manner (cf., Stone v Williams, 64 NY2d 639, 641, 642), the existence of such a duty would not aid plaintiff Di Ponzio’s case, since his injuries did not arise from the occurrence of any of the foreseeable hazards that the duty would exist to prevent.

When a vehicle’s engine is left running in an area where gasoline is being pumped, there is a natural and foreseeable risk of fire or explosion because of the highly flammable properties of the fuel. Indeed, the local ordinance plaintiffs cite as one source of support for the existence of a duty to direct gas station patrons to turn off their engines is, in fact, contained within the City of Rochester Fire Prevention Code, whose stated purpose is to safeguard against "the hazards of fire and explosions” {see, City of Rochester Fire Prevention Code § 54-l). 2 It is this class of foreseeable hazards that defines the scope of the URC’s purported duty.

The occurrence that led to plaintiff’s injury was clearly outside of this limited class of hazards. Plaintiff was injured because the parking gear of another customer’s car inexplicably failed and the unattended vehicle, which had rested stationary on a level surface for more than five minutes, suddenly began to. move backwards, pinning plaintiff between its rear bumper and the bumper of his own car. Because this type of accident was not among the hazards that are naturally associated with leaving a car engine running during the operation of a gas pump, the alleged misconduct of URC’s employees does not give rise to liability in tort. Indeed, plaintiff’s position in this case is analogous to that of the child whose foot was injured by the plummeting pistol in the Restatement hypothetical. Moreover, while plaintiff’s accident may have been an indirect consequence of the station attendant’s failure to direct Riordan to turn off his engine, the accident was, at most, a remote possibility at the time the conduct in question occurred and thus was not a foreseeable consequence of the attendant’s inaction, *586 even though the risk may now readily be perceived through hindsight (see, Prosser and Keeton, op. cit, § 31, at 170 ["It is not enough that everyone can see now that the risk was great, if it was not apparent when the conduct occurred”]). Accordingly, as a matter of law defendant URC had no cognizable legal duty to protect against the injury-producing occurrence and plaintiff’s cause of action based on URC’s own alleged negligence was properly dismissed.

We note our rejection of plaintiffs’ alternative argument that URC may be held vicariously liable for any negligence on the part of defendant Riordan. There was no master-servant or other similar relationship between URC and Riordan that would serve under existing law as a basis for holding the former responsible for the misconduct of the latter without regard to fault. Further, the element that is most often associated with the imposition of vicarious liability — i.e., legal or actual authority over the negligent actor — was absent and there is thus no persuasive reason to extend the doctrine of vicarious liability to these circumstances (see, Kavanaugh v Nussbaum, 71 NY2d 535). Hence, plaintiffs have no legal ground for asserting a claim against defendant URC.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine and Ciparick concur; Judge Wesley taking no part.

Order affirmed, with costs.

OPINION

PAGE, Justice.

This case arises upon a reversal by the court of appeals of summary judgment in favor of the defendant. The court of appeals held that defendant, the owner and operator of a private boat on Lake Minne-tonka, had a duty to warn plaintiff, a guest on the boat, that water surrounding the boat was too shallow for diving. We reverse and reinstate judgment in favor of defendant.

The facts are undisputed for the purpose of this appeal. On Sunday, August 9,1986, Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s ("Herman”) 26-foot boat, sailing on Lake Minnetonka. Harper was invited on the boat outing by Cindy Alberg Palmer, another guest on Herman’s boat. Herman and Harper did not know each other prior to this boat outing. At the time Herman was 64 years old, and Harper was 20 years old. Herman was an experienced boat owner having spent hundreds of hours operating boats on Lake Minnetonka similar to the one involved in this action. As owner of the boat, Herman considered himself to be in charge of the boat and his passengers. Harper had some experience swimming in lakes and rivers, but had no formal training in diving.

After a few hours of boating, the group decided to go swimming and, at Herman’s suggestion, went to Big Island, a popular recreation spot. Herman was familiar with Big Island, and he was aware that the water remains shallow for a good distance away from its shore. Harper had been to Big Island on one previous occasion. Herman positioned the boat somewhere between 100 to 200 yards from the island with the bow facing away from the island in an area shallow enough for his guests to use the boat ladder to enter the water, but still deep enough so they could swim. 1 The bottom of the lake was not visible from the *474 boat. After positioning the boat Herman proceeded to set the anchor and lower the boat’s ladder which was at its stern.

While Herman was lowering the ladder, Harper asked him if he was “going in.” When Herman responded yes, Harper, without warning, stepped onto the side of the middle of the boat and dove into approximately two or three feet of water. As a result of the dive, Harper struck the bottom of the lake, severed his spinal cord, and was rendered a C6 quadriplegic.

Harper then brought suit, alleging that Herman owed him a duty of care to warn him that the water was too shallow for diving. On October 23, 1991, the trial court granted Herman’s motion for summary judgment, ruling that the law does not impose such a duty. In reversing the trial court, the court of appeals concluded that Herman voluntarily assumed a duty to exercise reasonable care when he allowed Harper onto his boat, and that the duty of care included warning Harper not to dive because he knew that the water was “dangerously shallow.” Harper v. Herman, 487 N.W.2d 908, 910 (Minn.App.1992).

The sole issue on appeal is whether a boat owner who is a social host owes a duty of care to warn a guest on the boat that the water is too shallow for diving.

Harper alleges that Herman owed him a duty to warn of the shallowness of the water because he was an inexperienced swimmer and diver, whereas Herman was a veteran boater. Under those circumstances, Harper argues, Herman should have realized that Harper needed his protection.

We have previously stated that an affirmative duty to act only arises when a special relationship exists between the parties. “The fact that an actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action * * * unless a special relationship exists * * * between the actor and the other which gives the other the right to protection.” Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn.1979), reh’g denied, Jan. 11, 1980 (citations omitted). Accepting, arguendo, that Herman should have realized that Harper needed protection, Harper must still prove that a special relationship existed between them that placed an affirmative duty to act on the part of Herman.

Harper argues that a special relationship requiring Herman to act for his protection was created when Herman, as a social host, allowed an inexperienced diver on his boat. Generally, a special relationship giving rise to a duty to warn is only found on the part of common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection. Restatement (Second) of Torts § 314A (1965). Under this rule, a special relationship could be found to exist between the parties only if Herman had custody of Harper under circumstances in which Harper was deprived of normal opportunities to protect himself. 2 These elements are not present here.

The record before this court does not establish that Harper was either particularly vulnerable or that he lacked the ability to protect himself. Further, the record does not establish that Herman held considerable power over Harper’s welfare, or that Herman was receiving a financial gain by hosting Harper on his boat. Finally, there is nothing in the record which would suggest that Harper expected any protec *475 tion from Herman; indeed, no such allegation has been made.

The court of appeals found that Herman owed Harper a duty to warn him of the shallowness of the water because Herman knew that it was “dangerously shallow.” We have previously stated that “[a]ctual knowledge of a dangerous condition tends to impose a special duty to do something about that condition.” Andrade v. Ellefson, 391 N.W.2d 836, 841 (Minn.1986) (holding that county was not immune to charge of improper supervision of day care center where children were abused when county knew about overcrowding at the center). However, superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence. Thus, Herman’s knowledge that the water was “dangerously shallow” without more does not create liability. An-drade involved a group of plaintiffs who had little opportunity to protect themselves, children in day care, and a defendant to whom the plaintiffs looked for protection. In this case, Harper was not deprived of opportunities to protect himself, and Herman was not expected to provide protection.

“There are many dangers, such as those of fire and water, * * * which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child * * *.” Restatement (Second) of Torts § 339 cmt. j (1965). If a child is expected to understand the inherent dangers of water, so should a 20-year-old adult. Harper had no reasonable expectation to look to Herman for protection, and we hold that Herman had no duty to warn Harper that the water was shallow.

Reversed and judgment in favor of defendant reinstated.

Levin, J.

There is ample evidence to support the jury determination that David Siegrist failed to exercise reasonable care after voluntarily coming to the aid of Richard Farwell and that his negligence was the proximate cause of Farwell’s death. We are also of the opinion that Siegrist, who was with Farwell the evening he was fatally injured and, as the jury found, knew or should have known of his peril, had an affirmative duty to come to Farwell’s aid. 1

*285 I

On the evening of August 26, 1966, Siegrist and Farwell drove to a trailer rental lot to return an automobile which Siegrist had borrowed from a friend who worked there. While waiting for the friend to finish work, Siegrist and Farwell consumed some beer.

Two girls walked by the entrance to the lot. Siegrist and Farwell attempted to engage them in conversation; they left Farwell’s car and followed the girls to a drive-in restaurant down the street.

The girls complained to their friends in the restaurant that they were being followed. Six boys chased Siegrist and Farwell back to the lot. Siegrist escaped unharmed, but Farwell was severely beaten. Siegrist found Farwell underneath his automobile in the lot. Ice was applied to Farwell’s head. Siegrist then drove Farwell around for approximately two hours, stopping at a number of drive-in restaurants. Farwell went to sleep in the back seat of his car. Around midnight Siegrist drove the car to the home of Farwell’s grandparents, parked it in the driveway, unsuccessfully attempted to rouse Farwell, and left. Farwell’s grandparents discovered him in the car the next morning and took him to the hospital. He died three days later of an epidural hematoma.

At trial, plaintiff contended that had Siegrist taken Farwell to the hospital, or had he notified someone of Farwell’s condition and whereabouts, Farwell would not have died. A neurosurgeon testified that if a person in Farwell’s condition is taken to a doctor before, or within half an hour after, consciousness is lost, there is an 85 to 88 per cent chance of survival. Plaintiff testified that Siegrist told him that he knew Farwell was badly injured and that he should have done something.

*286 The jury returned a verdict for plaintiff and awarded $15,000 in damages. The Court of Appeals reversed, finding that Siegrist had not assumed the duty of obtaining aid for Farwell and that he neither knew nor should have known of the need for medical treatment.

II

Two separate, but interrelated questions are presented:

A. Whether the existence of a duty in a particular case is always a matter of law to be determined solely by the Court?

B. Whether, on the facts of this case, the trial judge should have ruled, as a matter of law, that Siegrist owed no duty to Farwell?

A.

"A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Prosser, Torts (4th ed), § 53, p 324.

The existence of a duty is ordinarily a question of law. However, there are factual circumstances which give rise to a duty. The existence of those facts must be determined by a jury. 2 In Bonin v Gralewicz, 378 Mich 521, 526-527; 146 NW2d 647 (1966), this Court reversed a directed verdict of no cause of action where the trial court had deter *287 mined as a matter of law that the proofs were insufficient to establish a duty of care:

"Usually, in negligence cases, whether a duty is owed by the defendant to the plaintiff does not require resolution of fact issues. However, in some cases, as in this one, fact issues arise. When they do, they must be submitted to the jury, our traditional finders of fact, for ultimate resolution, and they must be accompanied by an appropriate conditional instruction regarding defendant’s duty, conditioned upon the jury’s resolution of the fact dispute.”

This same rule was stated more recently in Davis v Thornton, 384 Mich 138, 142; 180 NW2d 11 (1970). "The trial judge in this case determined the defendant owed the plaintiff no duty. We believe this conclusion could properly be made only by a jury.”

B.

Without regard to whether there is a general duty to aid a person in distress, there is a clearly recognized legal duty of every person to avoid any affirmative acts which may make a situation worse. "[I]f the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility. * * * Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff’s interests.” Prosser, supra, § 56, pp 343-344. "Where performance clearly has been begun, there is no doubt that there is a duty of care.” Id 346.

In a case such as the one at bar, the jury must determine, after considering all the evidence, whether the defendant attempted to aid the vie *288 tim. If he did, a duty arose which required defendant to act as a reasonable person.

"Before any duty, or any standard of conduct may be set, there must first be proof of facts which give rise to it”, Prosser, supra, § 37, p 205. Whether those facts have been proved is a question for the jury.

"Professor Green argues that it is impossible in the nature of things for the duty problem to be decided by the jury, for if the court sends the issue to the jury this 'necessarily operates as a ruling that there is a duty or else he would never have submitted the case to the jury at all.’ But that is not so. As in the case of any other issue, the judge will leave the question to the jury if it is a debatable one, but the jury may decide that (for example) plaintiff was beyond the apparent scope of danger from defendant’s conduct, and so beyond the scope of the duty to perform it carefully, even where they are quite ready to find defendant’s conduct clearly below the standard of reasonable care.” 2 Harper & James, The Law of Torts, p 1060.

There was ample evidence to show that Siegrist breached a legal duty owed Farwell. Siegrist knew that Farwell had been in a fight, and he attempted to relieve Farwell’s pain by applying an ice pack to his head. While Farwell and Siegrist were riding around, Farwell crawled into the back seat and laid down. The testimony showed that Siegrist attempted to rouse Farwell after driving him home but was unable to do so.

In addition, Farwell’s father testified to admissions made to him by Siegrist:

”Q: Witness, just before the jury was excused, I asked whether you had any conversation with Mr. Siegrist after this event occurred. You answered, 'Yes, the day *289 after in the living room of Mrs. Grenier’s [the deceased’s mother] home.’ Then, the jury was excused, and we made a special record, and now I would like to ask you some questions that I asked and that you answered out of the presence of the jury.

"A: Yes.

”Q: What did Mr. Siegrist say, how did the conversation go?

’A: I asked him why he left Ricky [the deceased] in the driveway of his grandfather’s home.

What did he say?

'A: He said, ’Ricky was hurt bad, I was scared.’ I said, ’Why didn’t you tell somebody, tell his grandparents?’ He said, ’I know I should have, I don’t know.’” (Emphasis added.)

The question at trial came down to whether Siegrist acted reasonably under all the circumstances. "The law of negligence is that an actor is held to the standard of a reasonable man. The determination of the facts upon which the judgment of reasonableness is based is admittedly for the jury.” Davis v Thornton, 384 Mich 138, 142-143; 180 NW2d 11 (1970).

The jury in this case found that Siegrist did not act reasonably, and that his negligence was the proximate cause of Farwell’s death.

"' "In considering the question whether defendant was entitled to a directed verdict, the testimony must be construed as strongly as possible in favor of the plaintiff. * * * The specific inquiry is whether this Court can say, as a matter of law, giving to plaintiff’s proofs the strongest probative force to which they are entitled, that the evidence was not sufficient to justify submitting to the jury the questions of defendant’s negligence and its knowledgé or notice of the situation.” ’ ” Clark v Dalman, 379 Mich 251, 263; 150 NW2d 755 (1967).

*290 III

Siegrist contends that he is not liable for failure to obtain medical assistance for Farwell because he had no duty to do so.

Courts have been slow to recognize a duty to render aid to a person in peril. 3 Where such a duty has been found, it has been predicated upon the existence of a special relationship between the parties; 4 5in such a case, if defendant knew or should have known of the other person’s peril, 5 he *291 is required to render reasonable care under all the circumstances. 6

In Depue v Flatau, 100 Minn 299; 111 NW 1 (1907), the Supreme Court of Minnesota reversed an order of the trial court dismissing the cause of action and said that if the defendants knew their dinner guest was ill, it was for the jury to decide whether they were negligent in refusing his request to spend the night and, propping him on his wagon with the reins thrown over his shoulder, sending him toward home.

The Sixth Circuit Court of Appeals, in Hutchinson v Dickie, 162 F2d 103, 106 (CA 6, 1947), said that a host had an affirmative duty to attempt to rescue a guest who had fallen off his yacht. The host controlled the only instrumentality of rescue. The Court declared that to ask of the host anything less than that he attempt to rescue his guest would be "so shocking to humanitarian considerations and the commonly accepted code of social conduct that the courts in similar situations have had no difficulty in pronouncing it to be a legal obligation”.

Farwell and Siegrist were companions on a social venture. Implicit in such a common undertaking is the understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself. Siegrist knew or should have known when he left Farwell, who was badly beaten and unconscious, in the back seat of his car that no one would find bim before morning. Under these circumstances, to say that Siegrist had no duty to obtain medical assistance or at least to notify someone of Farwell’s condition and whereabouts would be "shocking to humanitarian considerations” and fly in the face *292 of "the commonly accepted code of social conduct”. 7 "[C]ourts will find a duty where, in general, reasonable men would recognize it and agree that it exists.” 8

Farwell and Siegrist were companions engaged in a common undertaking; there was a special relationship between the parties. Because Siegrist knew or should have known of the peril Farwell was in and could render assistance without endangering himself he had an affirmative duty to come to Farwell’s aid.

The Court of Appeals is reversed and the verdict of the jury reinstated.

Fitzgerald, J.

The unfortunate death of Richard Farwell prompted this wrongful death action brought by his father against defendant, David Siegrist, a friend who had accompanied Farwell during the evening in which the decedent received injuries which ultimately caused his death three days later. The question before us is whether the defendant, considering his relationship with the decedent and the activity they jointly experienced on the evening of August 26-27, 1966, by his conduct voluntarily or otherwise assumed, or should have assumed, the duty of rendering medical or other assistance to the deceased. Wé find that defendant had no obligation to assume, nor did he assume, such a duty.

*293 The facts of the case are accurately set forth in the Court of Appeals opinion.

"Factually, it appears that, on August 26, 1966, Richard Murray Farwell, deceased 18-year-old son of the plaintiff, visited the home of his friend, David Siegrist, a 16-year-old; that evening they drove to a trailer rental lot, where Siegrist was returning an automobile he had borrowed from a friend who was employed by the rental agency.

"Siegrist and Farwell planned to wait in the car until the friend had finished work and then 'drive around,’ stopping at various restaurants and drive-ins. While they were waiting, Siegrist estimated that they consumed 'four or five’ beers each.

"Shortly before nine o’clock p.m., two teenage girls walked past the car. After an unsuccessful attempt to engage them in conversation, Farwell left the car and followed the girls; Siegrist got out of the car and followed Farwell.

"When the girls reached a restaurant a short distance down the street, they apparently complained to those present that they were being followed. Defendants Ingland, Brock, Donald Keaton, Daniel Keaton, and at least two others in the restaurant began to chase Far-well and Siegrist, both of whom ran back to the trailer lot.

"Siegrist escaped by ducking into the trailer rental office, where he requested those inside to assist Farwell. They stepped out of the office and were confronted by the group which had been chasing Siegrist and Farwell. The two groups faced each other, but no violence ensued, and the two groups scattered.

"It was then discovered for the first time that Farwell had been caught and beaten by those who had been pursuing him and Siegrist; Farwell was found underneath his automobile in the lot.

"Farwell was taken to the trailer rental office, where Siegrist gave him a plastic bag full of ice for his injuries. Shortly thereafter, Farwell and Siegrist left the rental office and, between ten o’clock p.m. and midnight, they visited four different drive-in restau *294 rants. While enroute from the third to the fourth restaurant, Farwell stated that he wanted to lie down, climbed into the back seat, and went to sleep. Around midnight, Siegrist drove the car to the home of Far-well’s grandparents, parked it in the driveway, and attempted to rouse Farwell. When the latter merely made a sound as if 'in a deep sleep’, Siegrist left with a friend who had followed him to the grandparents’ house. The next morning, Farwell was found by his grandparents, apparently taken to a hospital, and died of an epidural hematoma.

"At the close of plaintiffs proofs, defendant Siegrist moved for a directed verdict on the grounds that he had no duty to obtain medical assistance for Farwell as a matter of law. In the alternative, the motion was based upon the proposition that plaintiff failed to establish that any conduct on the part of Siegrist proximately caused Farwell’s death. The motion was denied.” 51 Mich App 585, 587-588.

Following the jury verdict of $15,000 in favor of the plaintiff, defendant, arguing that the verdict was inconsistent with the weight of the evidence, moved for and was denied a judgment notwithstanding the verdict. The decision of the trial court was reversed by the Court of Appeals which found that the defendant never assumed, voluntarily or otherwise, the duty of obtaining medical assistance for the deceased. The Court stated that the facts in no way indicated that defendant knew, or should have known, that immediate medical attention was required. Consequently, as a matter of law the Court determined that defendant was under no duty to obtain medical treatment for the decedent.

Plaintiff argues that once having voluntarily undertaken the duty of caring for decedent, defendant could not discontinue such assistance if, in so doing, he left the decedent in a worse position than when such duty was assumed. Defendant’s *295 knowledge of the seriousness of decedent’s injury and the failure to advise decedent’s grandparents, the close personal relationship that existed between defendant and the decedent, and the supposition that the decedent relied upon defendant for assistance leads plaintiif to conclude that defendant did not act "with the reasonable prudence and care of a reasonable man in the same or like circumstances”. Defendant’s position is that there was no volunteered assumption of duty to care for the safety of the decedent. He argues that the facts within his knowledge on the evening of August 26, 1966, and the evidence introduced at trial failed to establish that defendant should have seen that Richard Farwell had suffered a potentially fatal injury requiring immediate attention.

Defendant did not voluntarily assume the duty of caring for the decedent’s safety. Nor did the circumstances which existed on the evening of August 26, 1966, impose such a duty. Testimony revealed that only a qualified physician would have reason to suspect that Farwell had suffered an injury which required immediate medical attention. The decedent never complained of pain and, in fact, had expressed a desire to retaliate against his attackers. Defendant’s inability to arouse the decedent upon arriving at his grandparents’ home does not permit us to infer, as does plaintiff, that defendant knew or should have known that the deceased was seriously injured. 1 *296 While it might have been more prudent for the defendant to insure that the decedent was safely in the house prior to leaving, we cannot say that defendant acted unreasonably in permitting Far-well to spend the night asleep 2 in the back seat of his car.

The close relationship between defendant and the decedent is said to establish a legal duty upon defendant to obtain assistance for the decedent. No authority is cited for this proposition other than the public policy observation that the interest of society would be benefited if its members were required to assist one another. This is not the appropriate case to establish a standard of conduct requiring one to legally assume the duty of insuring the safety of another. Recognizing that legal commentaries have expressed moral outrage at those decisions 3 which permit one to refuse aid to another whose life may be in peril, we cannot say that, considering the relationship between these two parties and the existing circumstances, defendant acted in an unreasonable manner. 4

*297 Plaintiff believes that a legal duty to aid others should exist where such assistance greatly benefits society and only a reasonable burden is imposed upon those in a position to help. He contends further that the determination of the existence of a duty must rest with the jury where questions of foreseeability and the relationship of the parties are primary considerations.

It is clear that defendant’s nonfeasance, or the "passive inaction or a failure to take steps to protect [the decedent] from harm” 5 is urged as being the proximate cause of Farwell’s death. We must reject plaintiff’s proposition which elevates a moral obligation to the level of a legal duty where, as here, the facts within defendant’s knowledge in no way indicated that immediate medical attention was necessary and the relationship between the parties imposes no affirmative duty to render assistance. See Steckman v Silver Moon, Inc, 77 SD 206; 90 NW2d 170; 64 ALR2d 1171 (1958). The posture of this case does not permit us to create a legal duty upon one to render assistance to another injured or imperiled party where the initial injury was not caused by the person upon whom the duty is sought to be imposed.

The relationship of the parties and the question of foreseeability does not require that the jury, rather than the court, determine whether a legal duty exists. We are in agreement with the general principle advanced by plaintiff that the question of negligence is one of law for the court only when the facts are such that all reasonable men must draw the same conclusion. 6 However, this principle becomes operative only after the court establishes *298 that a legal duty is owed by one party to another. Prosser’s analysis of the role of the court and jury on questions of legal duty bears repeating:

"The existence of a duty. In other words, whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other— or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court. * * * A decision by the court that, upon any version of the facts, there is no duty, must necessarily result in judgment for the defendant.” Prosser, Torts (4th ed), § 37, p 206.

Michigan recognizes that the question of duty is to be resolved by the court rather than the jury. Fisher v Johnson Milk Co, Inc, 383 Mich 158; 174 NW2d 752 (1970).

The Court of Appeals properly decided as a matter of law that defendant owed no duty to the deceased.

We would affirm.

Opinion

CHIN, J.

In this case, we must decide under what circumstances courts may impose tort liability on employers who fail to use reasonable care in recommending former employees for employment without disclosing material information bearing on their fitness. Specifically, we are concerned with letters of recommendation that defendant school district officers allegedly wrote to a college placement service on behalf of Robert Gadams, an administrative employee they formerly employed. Plaintiff and appellant Randi W. claims that defendants unreservedly recommended Gadams for employment without disclosing to the placement service (and thus to prospective employers) facts defendants knew regarding prior charges or complaints of sexual misconduct and impropriety leveled against Gadams. Defendants’ letters allegedly induced another school district to hire Gadams, who later sexually assaulted plaintiff, a student in that district.

As will appear, consistent with the Court of Appeal judgment in this case, we conclude that defendants’ letters of recommendation, containing unreserved and unconditional praise for former employee Gadams despite defendants’ alleged knowledge of complaints or charges of his sexual misconduct with students, constituted misleading statements that could form the basis for tort liability for fraud or negligent misrepresentation. Although policy considerations dictate that ordinarily a recommending employer should not be held accountable to third persons for failing to disclose negative information regarding a former employee, nonetheless liability may be imposed if, as alleged here, the recommendation letter amounts to an affirmative misrepresentation presenting a foreseeable and substantial risk of physical harm to a third person.

We also conclude, contrary to the Court of Appeal judgment in this case, that defendants’ alleged failure to report the charges of Gadams’s improper activities to the appropriate authorities pursuant to state statutory law fails to afford an alternate basis for tort liability in this case, and that the trial court properly sustained defendants’ demurrers to the count in the complaint relying on this theory of liability.

We take the following uncontradicted statement of the procedural history of the case in large part from the Court of Appeal majority opinion.

*1071I. Procedural History

Plaintiff and appellant Randi W. (through her guardian ad litem, Marilyn E. W.) filed this lawsuit against Livingston Union School District, Muroc Joint Unified School District, Golden Plains Unified School District, Tranquility Elementary School, Mendota Unified School District, the State of California, Robert Gadams, Gilbert Rossette, Gary Rice, Richard Cole, Henry Escobar, Kathy Berkeley, and David Malcolm.

Defendants Livingston Union School District (Livingston), Robert Gadams, Henry Escobar, and Kathy Berkeley are not parties to this appeal. Accordingly, we use the term “defendants” to refer to all remaining defendants in the case.

A. The Complaint

Plaintiff’s first amended complaint (the complaint) alleged that she was a student at Livingston Middle School, where Gadams served as vice principal. On February 1, 1992, while plaintiff was in Gadams’s office, he “negligently and offensively touched, molested, and engaged in sexual touching of 13-year old [plaintiff] proximately causing injury to her.”

1. Count One: Negligence

The negligence count of the complaint alleges that all defendants knew or had reason to know that Gadams had previously engaged in various types of “sexual wrongdoing” with minors and students, but that defendants “negligently, carelessly, and/or with knowledge intentionally, maliciously, and/or fraudulently hired, retained, failed to report, failed to discipline, failed to supervise and/or affirmatively recommended defendant Robert Gadams to other positions of trust and positions whereby he would act as an authority figure to minors and students.”

The complaint makes specific negligence allegations as to each defendant. It alleges that Gadams worked in the Mendota Unified School District (Mendota) from 1985 to 1988. In May 1990, Gilbert Rossette, a Mendota official, provided to the placement office at Fresno Pacific College (where Gadams received his teaching credentials) a “detailed recommendation” regarding Gadams, knowing that it would be passed on to prospective employers, although Rossette allegedly knew of Gadams’s prior improper contacts with female students. These contacts included hugging some female junior high school students, giving them back massages, making “sexual remarks” to them, and being involved in “sexual situations” with them. *1072Rossette’s recommendation noted numerous positive aspects of Gadams’s tenure in Mendota, including his “genuine concern” for students and his “outstanding rapport” with everyone, and concluded, “I wouldn’t hesitate to recommend Mr. Gadams for any position!”

The complaint makes similar allegations regarding Richard Cole, an official of Tranquility High School District and Golden Plains Unified School District (Golden Plains), where Gadams was employed between 1986 or 1987 and 1990. The complaint alleges that in 1990, Cole provided Fresno Pacific College’s placement office with a “detailed recommendation” of Gadams, although he knew of Gadams’s prior inappropriate conduct while an employee of Golden Plains. Specifically, Cole knew that Gadams had been the subject of various parents’ complaints, including charges that he “led a panty raid, made sexual overtures to students, sexual remarks to students . . . .” These complaints had allegedly led to Gadams’s “resigning under pressure from Golden Plains due to sexual misconduct charges . . . .” Cole’s recommendation listed Gadams’s various favorable qualities as an instructor and administrator, and stated Cole “would recommend him for almost any administrative position he wishes to pursue.”

Gary Rice and David J. Malcolm, officials in the Muroc Joint Unified School District (Muroc), where Gadams was employed in or around 1990 or 1991, also allegedly provided a “detailed recommendation” to Fresno Pacific College’s placement office in 1991, despite their knowledge of disciplinary actions taken against Gadams regarding sexual harassment allegations made during his employment with Muroc. The allegations included charges of “sexual touching” of female students and induced Muroc to force Gadams to resign. The recommendation, signed by Malcolm, described Gadams as “an upbeat, enthusiastic administrator who relates well to the students” and who was “in a large part” responsible for making the campus of Boron Junior/ Senior High School “a safe, orderly and clean environment for students and staff.” Malcolm concluded by recommending Gadams “for an assistant principalship or equivalent position without reservation.”

Defendants made these recommendations on forms that Fresno Pacific College supplied, which clearly stated that the information provided “will be sent to prospective employers.”

Plaintiff contends that these recommendations, with their associated failures to disclose and to warn, were made “with actual malice, corruption and actual fraud since these defendants knew the true facts regarding Gadams and knew that an injury to a child by Gadams would probably result.” Plaintiff alleges that her injuries were a proximate result of defendants’ actions.

*10732. Count Two: Negligent Hiring

Plaintiff alleges that each defendant was negligent in hiring Gadams “without any significant investigation or knowledge that Gadams was fit to act in a position of trust with respect to children or with complete indifference” to Gadams’s history of sexual misconduct. She alleges that her injuries were a direct and proximate result of defendants’ failures to investigate Gadams.

3. Count Three: Negligent Misrepresentation

Plaintiff alleges that defendants “negligently and carelessly failed to warn and failed to disclose the true facts” as previously alleged; that their gratuitous recommendations of Gadams to Fresno Pacific College’s placement office were made with “actual fraud, corruption, and actual malice”; and that they knew those representations were false, and knew that “minor public school children generally and those at Livingston would probably suffer injury because of the representations and failure to warn.” Plaintiff alleges that defendants owed a duty “to those to whom the statements were made and to the children at public schools whose families rely upon said representations.”

4. Count Four: Fraud

Plaintiff alleges that defendants intentionally made those knowingly false representations about Gadams with knowledge that they were “likely to injure plaintiff,” and with the intent that they would be relied upon “by all other defendants and others, and in fact were relied upon by each other defendant and plaintiff.”

5. Count Five: Negligence Per Se

Plaintiff alleges that defendants had a mandatory duty under Penal Code section 11164 et seq. and other statutes to report the charges of Gadams’s prior sexual misconduct “to appropriate authorities and to prospective employers.” Defendants’ failure to do so afforded Gadams “the opportunity to maintain a position of trust and authority with regard to minor students thereby enabling his molest of plaintiff.”

6. Count Six: Title IX Violation

Finally, plaintiff alleges that she “has been the subject of sexual harassment by defendants,” a violation of federal law. (See 20 U.S.C. §§ 1681-1688.)

*1074B. The Demurrers

Defendants demurred, arguing that each cause of action failed as a matter of law because the facts alleged failed to establish defendants owed any duty to plaintiff. At the hearing, the trial court expressed doubt whether plaintiff could adequately plead any duty running from defendants to her. The court further noted that, but for sustaining the demurrer on that basis, it would have sustained the demurrer with leave to amend for failure adequately to plead causation and reliance.

The court’s later written order sustained defendants’ demurrers without leave to amend because “. . . the First Amended Complaint does not state facts sufficient to constitute a cause of action against the demurring defendants, on the basis that no duty exists to this plaintiff, from these demurring defendants.” The court entered judgment of dismissal with prejudice in favor of defendants, and this appeal followed.

C. The Court of Appeal Opinion

The Court of Appeal majority affirmed the trial court’s ruling as to the general negligence, negligent hiring, and title IX counts, but reversed as to the negligent misrepresentation, fraud, and negligence per se counts. On the affirmed counts, the court reasoned that (1) the absence of allegations indicating defendants had the ability to control Gadams, or had a “special relationship” with him, negated general negligence liability (count one); (2) the fact that defendants did not employ Gadams when he allegedly injured plaintiff precluded liability under a negligent hiring theory (count two); and (3) the lack of a direct relationship between plaintiff and defendants precluded liability for sexual harassment under title IX (count six). Plaintiff did not seek our review of those rulings, and we do not address them here.

As for the reversed counts, the Court of Appeal first ruled that plaintiff’s complaint adequately stated a cause of action for fraud and negligent misrepresentation. The majority relied primarily on sections 310 and 311 of the Restatement Second of Torts, imposing liability on one who intentionally or negligently gives false information to another person that results in physical injury to the recipient or a third person. The majority believed that defendants’ letters contained misleading representations or “half-truths” regarding Gadams’s qualifications. The Court of Appeal dissent concluded that because the letters contained no statements regarding Gadams’s sexual contacts with students, but referred only to “positive” aspects of his character and qualifications, the letters contained no actionable misrepresentations.

The Court of Appeal majority also ruled that the complaint stated a cause of action for negligence per se, because defendants allegedly breached their *1075statutory duty under the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.) (the Reporting Act) to report to the authorities the various charges of sexual misconduct involving Gadams. The majority concluded the complaint adequately alleged that defendants’ knowledge or suspicion that Gadams had committed sexual abuse invoked the provisions of the Reporting Act.

The Court of Appeal dissent disagreed, concluding that defendants had no duty under the Reporting Act to report gossip or hearsay regarding a school officer’s improper conduct.

II. Discussion

A. Fraud and Negligent Misrepresentation

Our task on reviewing an order sustaining a demurrer without leave to amend “is to determine whether the complaint states a cause of action. Accordingly, we assume that the complaint’s properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (Garcia v. Superior Court (1990) 50 Cal.3d 728, 732 [268 Cal.Rptr. 779, 789 P.2d 960] (Garcia).)

In finding plaintiff’s complaint stated a cause of action against defendants for fraud and negligent misrepresentation, the Court of Appeal majority relied primarily on sections 310 and 311 of the Restatement Second of Torts. Section 310 involves intentional conduct and provides that “[a]n actor who makes a misrepresentation is subject to liability to another for physical harm which results from an act done by the other or a third person in reliance upon the truth of the representation, if the actor [*][] (a) intends his statement to induce or should realize that it is likely to induce action by the other, or a third person, which involves an unreasonable risk of physical harm to the other, and [H (b) knows [<][] (i) that the statement is false, or [^Q (ii) that he has not the knowledge which he professes.” (Italics added.)

Section 311 of the Restatement Second of Torts, involving negligent conduct, provides that: “(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 [1 (a) to the other, or [<JQ (b) to such third persons as the actor should expect to be put in peril by the action taken. [*]0 (2) Such negligence may consist of failure to exercise reasonable care [H (a) in ascertaining the accuracy of the information, or [^ (b) in the manner in which it is communicated.” (Italics added.)

*1076Although ordinarily a duty of care analysis is unnecessary in determining liability for intentional misrepresentation or fraud (see 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778, and cases cited), here we consider liability to a third person injured as a result of the alleged fraud, an extension of ordinary tort liability based on fraud. (See Civ. Code, § 1709.) Accordingly, in deciding whether to adopt the two Restatement provisions in the circumstances of this case, we consider whether plaintiff has sufficiently pleaded that defendants owed her a duty of care, that they breached that duty by making misrepresentations or giving false information, and that Livingston’s reasonable reliance on their statements proximately caused plaintiff’s injury. (See Garcia, supra, 50 Cal.3d at pp. 734-738 [discussing these elements in context of Rest.2d Torts, §311].) We examine each element separately.

1. Duty to Plaintiff

Did defendants owe plaintiff a duty of care? In defendants’ view, absent some special relationship between the parties, or some specific and known threat of harm to plaintiff, defendants had no duty of care toward her, and no obligation to disclose in their letters any facts regarding the charges against Gadams. (See Rest.2d Torts, § 315 [generally no duty to warn those threatened by third person’s conduct]; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806 [205 Cal.Rptr. 842, 685 P.2d 1193] [same]; Thompson v. County of Alameda (1980) 27 Cal.3d 741, 758 [167 Cal.Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701] [duty to warn “readily identifiable” victim]; Tarasoffv. Regents of University of California (1976) 17 Cal.3d 425, 433-435 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166] [“special relationship” creates duty to warn or control another’s conduct]; cf. Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 692-693 [254 Cal.Rptr. 211, 765 P.2d 373] [declining to extend “special relationship” test to employer-employee relationship].)

Plaintiff does not argue that a special relationship existed between defendants and her or Gadams. Instead, she relies on Garcia, supra, 50 Cal.3d at pages 735-736, where we held that, under section 311 of the Restatement Second of Torts, a parole officer had a duty to exercise reasonable care in giving the victim information regarding the parolee who ultimately killed her. We noted that although the parole officer had no duty to volunteer information regarding the released criminals he supervised, “. . . the absence of a duty to speak does not entitle one to speak falsely.” (Garcia, supra, 50 Cal.3d at p. 736.) We concluded that the parole officer, “having chosen to communicate information about [the parolee] to [the victim], had a duty to use reasonable care in doing so,” and that the officer either knew or *1077should have known that the victim’s safety might depend on the accuracy of the information imparted. (Ibid., citing Rest.2d Torts, § 311, com. b, p. 106.)

Plaintiff acknowledges that Garcia is distinguishable, and that no California case has yet held that one who intentionally or negligently provides false information to another owes a duty of care to a third person who did not receive the information and who has no special relationship with the provider. Accordingly, the issue before us is one of first impression, and we apply the general analytical principles used to determine the existence of duty in particular cases.

In this state, the general rule is that all persons have a duty to use ordinary care to prevent others from being injured as the result of their conduct. (Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]; see Civ. Code, § 1714.) As we have observed, “Rowland enumerates a number of considerations . . . that have been taken into account by courts in various contexts to determine whether a departure from the general rule is appropriate: ‘the major [considerations] are the foreseeability of harm to the plaintiff, 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.’ (Italics added.) (69 Cal.2d at p. 113.) The foreseeability of a particular kind of harm plays a very significant role in this calculus [citation], but a court’s task—in determining ‘duty’—is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6 [224 Cal.Rptr. 664, 715 P.2d 624].)

a. Foreseeability and causality

Applying these factors here, we first examine whether plaintiff’s injuries were a foreseeable result of defendants’ representations regarding Gadams’s qualifications and character, coupled with their failure to disclose to the Fresno Pacific College placement office information regarding charges or complaints of Gadams’s sexual misconduct. Could defendants reasonably have foreseen that the representations and omissions in their reference letters would result in physical injury to someone? Although the chain of causation *1078leading from defendants’ statements and omissions to Gadams’s alleged assault on plaintiff is somewhat attenuated, we think the assault was reasonably foreseeable. Based on the facts alleged in the complaint, defendants could foresee that Livingston’s officers would read and rely on defendants’ letters in deciding to hire Gadams. Likewise, defendants could foresee that, had they not unqualifiedly recommended Gadams, Livingston would not have hired him. And, finally, defendants could foresee that Gadams, after being hired by Livingston, might molest or injure a Livingston student such as plaintiff. We must assume, for purposes of demurrer, that plaintiff was indeed injured in the manner she alleges, and that a causal connection exists between defendants’ conduct and the injury suffered. As plaintiff’s complaint alleges, her injury was a “direct and proximate result” of defendants’ fraud and misrepresentations.

b. Moral blame

Whether defendants were guilty of any moral blame would depend on the proof adduced at trial, although it is certainly arguable that their unreserved recommendations of Gadams, together with their failure to disclose facts reasonably necessary to avoid or minimize the risk of further child molestations or abuse, could be characterized as morally blameworthy.

c. Availability of insurance or alternative courses of conduct

Next, we may assume that standard business liability insurance is available to cover instances of negligent misrepresentation or nondisclosure as alleged in count three of the complaint, but is not available for the fraud or intentional misconduct alleged in count four. (See Ins. Code, § 533; Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 16-18 [44 Cal.Rptr.2d 370, 900 P.2d 619].) Perhaps more significantly, defendants had alternative courses of conduct to avoid tort liability, namely, (1) writing a “full disclosure” letter revealing all relevant facts regarding Gadams’s background, or (2) writing a “no comment” letter omitting any affirmative representations regarding Gadams’s qualifications, or merely verifying basic employment dates and details. The parties cite no case or Restatement provision suggesting that a former employer has an affirmative duty of disclosure that would preclude such a “no comment” letter. As we have previously indicated, liability may not be imposed for mere nondisclosure or other failure to act, at least in the absence of some special relationship not alleged here. (Garcia, supra, 50 Cal.3d at p. 734; see Rest.2d Torts, § 315.)

d. Public policy considerations

As for public policy, the law certainly recognizes a policy of preventing future harm of the kind alleged here. One of society’s highest *1079priorities is to protect children from sexual or physical abuse. (See, e.g., Barela v. Superior Court (1981) 30 Cal.3d 244, 254 [178 Cal.Rptr. 618, 636 P.2d 582] [duty of all citizens to protect children from sexual abuse]; Pen. Code, § 11166 [duty to report suspected child abuse].)

Defendants urge that competing social or economic policies may disfavor the imposition of liability for misrepresentation or nondisclosure in employment references. They observe that a rule imposing liability in these situations could greatly inhibit the preparation and distribution of reference letters, to the general detriment of employers and employees alike.

We have recently stated that “[w]hen deciding whether to expand a tort duty of care, courts must consider the potential social and economic consequences. [Citations.]” (Macias v. State of California (1995) 10 Cal.4th 844, 859-860 [42 Cal.Rptr.2d 592, 897 P.2d 530]; see Moore v. Regents of University of California (1990) 51 Cal.3d 120, 146 [271 Cal.Rptr. 146, 793 P.2d 479, 16 A.L.R.5th 903]; Dillon v. Legg (1968) 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316] [“duty” is expression of the total policy considerations leading to conclusion that plaintiff is entitled to protection].) Defendants argue that a rule imposing tort liability on writers of recommendation letters could have one very predictable consequence: employers would seldom write such letters, even in praise of exceptionally qualified employees.

In defendants’ view, rather than prepare a recommendation letter stating all “material” facts, positive and negative, an employer would be better advised to decline to write a reference letter or, at most, merely to confirm the former employee’s position, salary, and dates of employment. According to defendants, apart from the former employer’s difficulty in deciding how much “negative” information to divulge, an employer who disclosed more than minimal employment data would risk a defamation, breach of privacy, or wrongful interference suit from a rejected job seeker. (See, e.g., Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965 [18 Cal.Rptr.2d 83] [libel action may be based on false accusations in employee evaluation form of criminal conduct, dishonesty, incompetence, or reprehensible personal characteristics or behavior]; Marshall v. Brown (1983) 141 Cal.App.3d 408, 412 [190 Cal.Rptr. 392] [wrongful interference liability based on negative comments in former employer’s evaluation letter]; see also Nelson v. Upsala College (3d Cir. 1995) 51 F.3d 383, 387-388, and cases cited; Smolla, Law of Defamation (1995 ed.) § 15.01[2][a], p. 15-3, and cases cited [“Traditionally, defamation suits brought against former employers by disgruntled employees arise in the context of unfavorable reference letters or other communications to third parties concerning the employee’s job performance *1080. . . Lab. Code, §§ 1050 [misdemeanor to misrepresent facts regarding former employee to prevent employee’s further employment], 1054 [treble damages for misrepresenting employment facts].)

Defendants contend that the threat of potential tort liability will inhibit employers from freely providing reference information, restricting the flow of information prospective employers need and impeding job applicants in finding new employment. One writer recently explained that “[m]any employers have adopted policies, sometimes referred to as ‘no comment’ policies, under which they refuse to provide job references for former or departing employees .... [T]hese policies work to the detriment of both prospective employers and prospective employees.” (Saxton, Flaws in the Laws Governing Employment References: Problems of “Overdeterence” and a Proposal for Reform (1995) 13 Yale L. & Pol’y Rev. 45; see also id. at pp. 46-52 [citing evidence of increasing use of “no comment” letters, and deploring resultant restriction on flow of information]; Note, Negligent Referral: A Potential Theory for Employer Liability (1991) 64 So.Cal.L.Rev. 1645 [observing that “[m]ore and more employers ... are refusing to provide employee references”]; Note, Employer Defamation: Reasons and Remedies for Declining References and Chilled Communications in the Workplace (1989) 40 Hastings L.J. 687, 688-690; Note, Defamation in the Workplace: The Impact of Increasing Employer Liability (1989) 72 Marq. L.Rev. 264, 265 & fn. 9, 275-276, 300-301.)

In response, plaintiff asserts it is unlikely that employers will decline to write reference letters for fear of tort liability, at least in situations involving no foreseeable risks of physical injury to someone. Plaintiff observes that an employer would be protected from a defamation suit by the statutory qualified privilege for nonmalicious communications regarding a job applicant’s qualifications. (See Civ. Code, § 47, subd. (c).) This provision was amended in 1994 to provide that the qualified privilege available for communications to and by “interested” persons “applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, the prospective employer.” (Civ. Code, § 47, subd. (c).) As plaintiff suggests, the existence of this privilege may encourage more open disclosure of relevant information regarding former employees. (See also Jensen v. Hewlett-Packard Co., supra, 14 Cal.App.4th at pp. 964-965 [acknowledging public policy disfavoring libel suits based on comments in employee evaluation forms].)

We note that, although defendants have not argued the point, an amicus curiae has contended that the privilege under Civil Code section 47, subdivision (c), extends beyond defamation actions by former employees and *1081would provide a defense to plaintiff’s misrepresentation action. As we have previously acknowledged, a similar qualified privilege for communications made in judicial proceedings (Civ. Code, § 47, subd. (b)(2)) applies to “virtually all torts except malicious prosecution. [Citations.]” (Kimmel v. Goland (1990) 51 Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].) Legislative materials submitted by this amicus curiae, however, indicate that Civil Code section 47, subdivision (c), was primarily intended to provide employers with a defense to actions by former employees, rather than to insulate them from all tort liability arising from employment disclosures.

Assuming arguendo that Civil Code section 47, subdivision (c), would afford a defense in negligent or intentional misrepresentation actions brought by injured third persons, by its terms the new privilege pertains only to communications made “upon request of’ the prospective employer. Defendants do not claim that they wrote in response to Livingston" s request, and, accordingly, the privilege is inapplicable.

In light of these factors and policy considerations, we hold, consistent with Restatement Second of Torts sections 310 and 311, that the writer of a letter of recommendation owes to third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee, if making these misrepresentations would present a substantial, foreseeable risk of physical injury to the third persons. In the absence, however, of resulting physical injury, or some special relationship between the parties, the writer of a letter of recommendation should have no duty of care extending to third persons for misrepresentations made concerning former employees. In those cases, the policy favoring free and open communication with prospective employers should prevail.

Having concluded that defendants owed plaintiff a duty not to misrepresent Gadams’s qualifications or character in their letters of recommendation, we next must determine whether defendants’ letters indeed contained “misrepresentations” or “false information” within the meaning of Restatement Second of Torts section 310 or 311. If defendants made no misrepresentations, then as a matter of law they could not be found liable under those provisions.

2. Misleading Misrepresentation or Mere Nondisclosure?

The Court of Appeal majority determined that plaintiff adequately alleged defendants committed actual misrepresentation rather than mere nondisclosure, because their letters of recommendation amounted to “misleading half-truths,” containing incomplete information regarding Gadams’s character and reliability. According to the Court of Appeal, defendants’ unqualified *1082recommendation of Gadams, coupled with their failure to disclose that Gadams had been in “sexual situations” with female students and had made “sexual overtures” to them, or that defendants knew complaints regarding Gadams’s conduct had resulted in his resignation, amounted to affirmative misrepresentations.

Defendants join the Court of Appeal dissent in asserting that their letters of recommendation contained no misrepresentations that would invoke either Restatement Second of Torts section 310 or 311. As defendants observe, their letters neither discussed nor denied prior complaints of sexual misconduct or impropriety against Gadams.

Like the Court of Appeal majority, we view this case as a “misleading half-truths” situation in which defendants, having undertaken to provide some information regarding Gadams’s teaching credentials and character, were obliged to disclose all other facts which “materially qualify” the limited facts disclosed. (See, e.g., Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294 [85 Cal.Rptr. 444, 466 P.2d 996]; Rogers v. Warden (1942) 20 Cal.2d 286, 289 [125 P.2d 7]; Low v. Wheeler (1962) 207 Cal.App.2d 477, 484 [24 Cal.Rptr. 538]; Civ. Code, § 1710, subd. 3 [deceit is the suppression of a material fact by one who gives misleading information of other facts]; 5 Witkin, Summary of Cal. Law, supra, Torts, § 703, at p. 805, and cases cited.)

As the Court of Appeal observed, defendants’ letters offered general and unreserved praise for Gadams’s character and personality (e.g., “dependable [and] reliable,” “pleasant personality,” “high standards,” “relates well to the students”). According to the Court of Appeal, having volunteered this information, defendants were obliged to complete the picture by disclosing material facts regarding charges and complaints of Gadams’s sexual improprieties.

Defendants suggest that a letter noting only a candidate’s favorable qualities cannot reasonably be deemed misleading as to any unfavorable ones, and the recipient of such a letter cannot reasonably rely on any implication that the candidate lacks unfavorable qualities. (See Garcia, supra, 50 Cal.3d at p. 737 [stressing necessity of proving recipient of false information reasonably relied on it as a prerequisite to liability under Rest.2d Torts, § 311].) As one commentator observes, “. . . half of the truth may obviously amount to a lie, if it is understood to be the whole.” (Prosser & Keeton, The Law of Torts (5th ed. 1984) Misrepresentation and Nondisclosure, § 106, p. 738, italics added.) According to defendants, no reasonable person would assume a letter of recommendation purports to state the whole truth about a candidate’s background and character.

*1083In defendants’ view, we should characterize letters of recommendation stating only the favorable aspects of an applicant’s background or character as a permissible variety of “half-truth,” which misleads no one, and which, for that reason alone, should not form the basis for liability on a theory of negligent misrepresentation or fraud. (See Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 840-841, fn. 2 [10 Cal.Rptr.2d 748] [failure of church officers to disclose pastor’s history of pedophilia not actionable in absence of affirmative representation denying that history, because “[t]he tort of negligent misrepresentation requires a ‘positive assertion’ and does not apply to implied misrepresentations”]; Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 1082-1083 [274 Cal.Rptr. 342] [county officers’ failure to notify former district attorney of threats posed by vindictive probationer not actionable despite implied representation to warn]; Yanase v. Automobile Club of So. Cal. (1989) 212 Cal.App.3d 468, 473 [260 Cal.Rptr. 513, 2 A.L.R.5th 1084] [auto club tourbook endorsing motel’s accommodations contained no “positive assertion concerning neighborhood safety,” precluding negligent misrepresentation suit]; Cohen v. Wales (1987) 133 A.D.2d 94 [518 N.Y.S.2d 633, 634] [failure to disclose sexual misconduct charges against former employee/teacher not actionable because “[t]he mere recommendation of a person for potential employment is not a proper basis for asserting a claim of negligence where another party is responsible for the actual hiring”]; Moore v. St. Joseph Nursing Home, Inc. (1990) 184 Mich.App. 766 [459 N.W.2d 100, 103]; cf. Gutzan v. Altair Airlines, Inc. (3d Cir. 1985) 766 F.2d 135, 137 [liability of employment agency based on positive misrepresentation that job seeker’s innocent explanation for his rape conviction “had been verified by military officials”].)

But plaintiff argues convincingly that, under the facts pleaded in this case, defendants indeed made “positive assertion[s]” regarding Gadams’s character, assertions deceptively incomplete because defendants knowingly concealed material facts regarding Gadams’s sexual misconduct with students. Thus, defendant Mendota, through its officer Rossette, allegedly extolled Gadams’s “genuine concern” for and “outstanding rapport” with students, knowing that Gadams had engaged in inappropriate physical contact with them. Rossette declared in the letter that he “wouldn’t hesitate to recommend Mr. Gadams for any position!”

Defendant Golden Plains, through its officer Cole, stated it would recommend Gadams for “any administrative position,” despite its knowledge of Gadams’s prior inappropriate conduct while an employee of Golden Plains, conduct that had allegedly led to Gadams’s “resigning under pressure from Golden Plains due to sexual misconduct charges. . . .”

Finally, defendant Muroc, through its officers Rice and Malcolm, allegedly recommended Gadams “for an assistant principalship or equivalent *1084position without reservation,” describing Gadams as “an upbeat, enthusiastic administrator who relates well to the students,” despite its knowledge of disciplinary actions taken against him regarding sexual harassment allegations made during his employment with Muroc, allegations that induced Muroc to force Gadams to resign.

We conclude that these letters, essentially recommending Gadams for any position without reservation or qualification, constituted affirmative representations that strongly implied Gadams was fit to interact appropriately and safely with female students. These representations were false and misleading in light of defendants’ alleged knowledge of charges of Gadams’s repeated sexual improprieties. We also conclude that plaintiff’s complaint adequately alleged misleading half-truths that could invoke an exception to the general rule excluding liability for mere nondisclosure or other failure to act. (E.g., Garcia, supra, 50 Cal.3d at p. 734.)

3. Reliance

Did plaintiff adequately plead the requisite element of reliance? Her complaint alleges that Livingston relied on defendants’ letters in hiring Gadams, but the complaint is silent regarding plaintiff’s own reliance on those letters. The Court of Appeal majority ruled that, even though defendants made no misrepresentations directly to plaintiff, who probably neither knew of, nor relied on, their statements, she was nonetheless entitled to protection in accordance with the Restatement principles previously discussed.

With respect to section 310 of the Restatement Second of Torts, the Court of Appeal concluded that, despite some imprecision of language, “. . . it is clear that the authors of the Restatement intended [section 310] to apply to cases in which third persons are endangered by the misrepresentation.” This conclusion seems correct. Paraphrasing the section, here defendants allegedly made misrepresentations that resulted in physical harm to plaintiff by reason of an act done by Livingston (i.e., hiring Gadams) in reliance on the truth of the representations. Defendants intended or should have realized that their misrepresentations were likely to induce action by Livingston that involved an unreasonable risk of physical harm to plaintiff. (See Rest.2d Torts, §310, com. c, pp. 104-105 [“A misrepresentation may be negligent not only toward a person whose conduct it is intended to influence but also toward all others whom the maker should recognize as likely to be imperiled by action taken in reliance upon his misrepresentation.”].)

As for section 311 of the Restatement Second of Torts, the Court of Appeal observed that our court has already adopted and applied that section, *1085although in the different context of a misrepresentation made directly to the plaintiff, who relied on it and was physically harmed as a result. (See Garcia, supra, 50 Cal.3d at pp. 735-736.)

Defendants in this case had contended on appeal that plaintiff failed to plead her own reliance on their letters, as required by the case law. (E.g., Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088 [23 Cal.Rptr.2d 101, 858 P.2d 568] [“It is settled that a plaintiff, to state a cause of action for deceit based on a misrepresentation, must plead that he or she actually relied on the misrepresentation.”]; id. at p. 1089, fn. 2 and accompanying text; see Garcia, supra, 50 Cal.3d at p. 737.) The Court of Appeal rejected the argument, observing that “[t]hose cases all involved claims only for damages resulting from economic loss as opposed to damages based on physical injury. . . . [C]ases involving only economic loss are subject to a more restrictive rule. (Garcia v. Superior Court, supra, 50 Cal.3d at pp. 735-736 . . . .)”

The Court of Appeal thus concluded that it was unnecessary under section 311 of the Restatement Second of Torts for plaintiff to plead her own reliance on defendants’ misrepresentations, as long as the recipient of those misrepresentations (ultimately, Livingston) reasonably relied on them in hiring Gadams, as plaintiff alleged here. Citing a comment to section 311, the court observed that “The Restatement, however, makes it clear that the plaintiff need not rely on the misrepresentation and may, indeed, not even know that it was made. (See Rest.2d Torts, § 311, com. d, illus. 8, pp. 108-109.)” (See also Mirkin v. Wasserman, supra, 5 Cal.4th at pp. 1111-1114 (cone, and dis. opn. of Kennard, J. [citing the principle of indirect reliance]).)

We agree with the Court of Appeal’s reliance analysis. Under the Restatement provisions, plaintiff need only allege that her injury resulted from action that the recipient of defendants’ misrepresentations took in reliance on them. In a case involving false or fraudulent letters of recommendation sent to prospective employers regarding a potentially dangerous employee, it would be unusual for the person ultimately injured by the employee actually to “rely” on such letters, much less even be aware of them.

In any event, as the Court of Appeal observed, failure to plead reliance would not be a ground for sustaining a demurrer without leave to amend. We note that questions concerning the reasonableness of Livingston’s reliance on letters written well before Livingston allegedly received information regarding Gadams’s misconduct are not before us in reviewing the trial court’s ruling on demurrer.

*10864. Proximate Cause

As previously discussed, plaintiff’s complaint alleges that her injury was a “proximate” result of defendants’ fraud and misrepresentations. Defendants do not suggest that the complaint fails to state sufficient facts to establish proximate causation, assuming the remaining elements of duty, misrepresentation and reliance are sufficiently pleaded. Based on the facts alleged in the complaint, plaintiff’s injury foreseeably and proximately resulted from Livingston’s decision to hire Gadams in reliance on defendants’ unqualified recommendation of him.

Thus, we conclude, consistent with the Court of Appeal majority, that the trial court improperly sustained demurrers to counts three and four of plaintiff’s complaint without leave to amend.

B. The Negligence Per Se Count

As an alternative theory of liability, plaintiff charged defendants with negligence per se arising from breach of their statutory duty, as the Reporting Act requires, to report to the authorities the various incidents of sexual misconduct involving Gadams. Such a breach, if proved, would raise a presumption that defendants failed to exercise due care. (See Evid. Code, § 669, subd. (a); Landeros v. Flood (1976) 17 Cal.3d 399, 413-414 [131 Cal.Rptr. 69, 551 P.2d 389, 97 A.L.R.3d 324] [negligence per se liability arising from failure to comply with Reporting Act provision requiring reporting of child physical abuse].)

The Court of Appeal majority concluded that plaintiff’s complaint stated a cause of action for negligence per se, based on defendants’ alleged breach of their statutory duty. The Court of Appeal reasoned that the Reporting Act required defendants to report known or reasonably suspected incidents of “child abuse” to a “child protective agency” (which would include law enforcement agencies). (Pen. Code, § 11166, subd. (a).) The court believed plaintiff’s complaint adequately pleaded that defendants knew acts of child abuse had occurred within the meaning of the Reporting Act.

The dissenting justice in the Court of Appeal concluded that plaintiff’s complaint failed to state a cause of action for negligence per se because she alleged insufficient facts to show defendants violated Penal Code section 11166, the reporting provision. According to the dissent, plaintiff failed to allege that defendants knew or had observed any abused child, or that they knew of any actual physical or sexual assaults or exploitation, as defined in Penal Code section 11165.1.

*1087We need not decide whether the complaint’s allegations are sufficient to allege defendants knew or suspected reportable “child abuse,” because it is clear plaintiff was not a member of the class for whose protection the Reporting Act was enacted. Defendant school districts were never the “custodians” of plaintiff, a Livingston student and, accordingly, owed her no obligations under the act.

Evidence Code section 669 creates a presumption of negligence arising from violation of a statute, but only if “[t]he person suffering the . . . injury . . . was one of the class of persons for whose protection the statute . . . was adopted.” (Evid. Code, § 669, subd. (a)(4); see 6 Witkin, Summary of Cal. Law, supra, Torts, § 819, p. 172.) The duty to report under the Reporting Act (see Pen. Code, § 11166) applies to a “child care custodian” (which would include a school district) “who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her employment, whom he or she knows or reasonably suspects has been the victim of child abuse” (which includes sexual abuse). Reasonably construed, the act was intended to protect only those children in the custodial care of the person charged with reporting the abuse, and not all children who may at some future time be abused by the same offender. Plaintiff fails to allege that she was ever in defendants’ custodial care, or even that defendants were aware that Gadams had molested her.

To adopt plaintiff’s contrary argument would impose a broader reporting obligation than the Legislature intended. Under plaintiff’s interpretation of the Reporting Act, a child care custodian that fails to report suspected child abuse affecting one child in its care or custody could be held liable, perhaps years later, to any other children abused by the same person, whether or not those children were within its custodial protection. Neither legislative intent nor public policy would support such a broad extension of liability.

III. Conclusion

The judgment of the Court of Appeal is affirmed as to counts three and four (negligent misrepresentation and fraud), but reversed as to count five (negligence per se). The cause is remanded with directions to reverse the trial court’s order sustaining defendants’ general demurrers to counts three and four, and to affirm that order as to all remaining counts.

George, C. J., Mosk, J., and Brown, J., concurred.

KENNARD, J., Concurring and Dissenting.

I concur with and join in the majority opinion with the exception of part II.B. (The Negligence Per Se *1088Count) and that portion of part III. (Conclusion) reversing the Court of Appeal’s judgment as to count 5 (negligence per se) and directing the Court of Appeal to affirm the trial court’s order sustaining defendant’s general demurrer to count 5. Unlike the majority, I conclude that plaintiff has adequately pleaded a cause of action for negligence under the doctrine of negligence per se.

The theory of count 5 of plaintiff’s complaint is that the three defendant school districts that formerly employed Robert Gadams, the vice principal who sexually molested plaintiff, violated the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.; hereafter the Reporting Act) by failing to report to the proper authorities Gadams’s prior incidents of sexual misconduct with students, and that this statutory violation renders them liable under the doctrine of negligence per se for the damages she suffered as a result of her molestation by Gadams.

To plead a cause of action for negligence under the doctrine of negligence per se, a plaintiff must allege these elements: (1) the defendant violated a statute, ordinance, or regulation; (2) the violation proximately caused death or injury to the plaintiff; (3) the death or injury resulted from an occurrence of the kind that the statute, ordinance, or regulation was designed to prevent; and (4) the plaintiff belonged to the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Evid. Code, § 669, subd. (a).) Here, the majority concludes that count 5 of plaintiff’s complaint fails to satisfy the last of these requirements because, as a matter of law, plaintiff does not belong to the class of persons for whose protection the Reporting Act was adopted. I disagree.

The Reporting Act states its legislative purpose: “The intent and purpose of this article is to protect children from abuse.” (Pen. Code, § 11164, subd. (b).) The Reporting Act does not state that its purpose is to protect from abuse “some children” or only “children within the care and custody of the reporting party.” No such qualification appearing in the text of the statute, this court should not insert such a qualification under the guise of statutory construction. (Code Civ. Proc., § 1858.) Instead, this court should accept at face value the Legislature’s simple, unqualified statement that the Reporting Act is meant “to protect children from abuse,” and it should construe the intended protected class broadly to include all children who foreseeably could be protected from abuse by compliance with its provisions.

Assuming the allegations of plaintiff’s complaint are true, as we are required to do at this stage of the proceeding, plaintiff is within the protected class of children who foreseeably could have been protected from abuse had *1089defendants complied with the requirements of the Reporting Act. Had defendants reported Gadams’s prior acts of sexual misconduct with students, it is reasonably probable that Gadams would have been criminally prosecuted or that his teaching credential would have been suspended or revoked, as a result of which he would never have been employed in the position by means of which he was able to molest plaintiff.

In this regard, I agree with the analysis of the Court of Appeal, which stated: “In the instant case, there can be no doubt that appellant was ‘one of the class of persons for whose protection the [Reporting Act] was adopted.’ The act was intended to protect future as well as current child abuse victims, as is evidenced by the requirement that indexed reports be made available to local licensing agencies.”

The majority asserts that construing the class to be protected by the Reporting Act as including children, like plaintiff, who are later victimized by the same abuser “would impose a broader reporting obligation than the Legislature intended.” (Maj. opn., ante, at p. 1087.) This is just not so. The scope of the reporting obligation remains the same regardless of whether future abuse victims are considered to be within the protected class. The composition of the protected class affects the scope of a reporting party’s potential liability, but it has no effect on the scope of the reporting obligation.

Accordingly, I would permit plaintiff to proceed on the negligence per se theory embodied in count 5 of her complaint.

Baxter, J., and Werdegar, J., concurred.

On February 26, 1997, the opinion was modified to read as printed above.

Opinion

TOBRINER, J.

On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff.1 Plaintiffs, Tatiana’s parents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley. They allege that on Moore’s request, the campus police briefly detained Poddar, but released him when he appeared rational. They further claim that Dr. Harvey Powelson, Moore’s superior, then directed that no further action be taken to detain Poddar. No one warned plaintiffs of Tatiana’s peril.

Concluding that these facts set forth causes of action against neither therapists and policemen involved, nor against the Regents of the University of California as their employer, the superior court sustained defendants’ demurrers to plaintiffs’ second amended complaints without leave to amend.2 This appeal ensued.

*431Plaintiffs’ complaints predicate liability on two grounds: defendants’ failure to warn plaintiffs of the impending danger and their failure to bring about Poddar’s confinement pursuant to the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 ff.) Defendants, in turn, assert that they owed no duty of reasonable care to Tatiana and that they are immune from suit under the California Tort Claims Act of 1963 (Gov. Code, § 810 ff.).

We shall explain that defendant therapists cannot escape liability merely because Tatiana herself was npt their patient. (1) When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

In the case at bar, plaintiffs admit that defendant therapists notified the police, but argue on appeal that the therapists failed to exercise reasonable care to protect Tatiana in that they did not confine Poddar and did not warn Tatiana or others likely to apprise her of the danger. Defendant therapists, however, are public employees. Consequently, to the extent that plaintiffs seek to predicate liability upon the therapists’ failure to bring about Poddar’s confinement, the therapists can claim immunity under Government Code section 856. No specific statutory provision, however, shields them from liability based upon failure to warn Tatiana or others likely to apprise her of the danger, and Government Code section 820.2 does not protect such failure as an exercise of discretion.

Plaintiffs therefore can amend their complaints to allege that, regardless of the therapists’ unsuccessful attempt to confine Poddar, since they knew that Poddar was at large and dangerous, their failure to warn Tatiana or others likely to apprise her of the danger constituted a breach of the therapists’ duty to exercise reasonable care to protect Tatiana.

Plaintiffs, however, plead no relationship between Poddar and the police defendants which would impose upon them any duty to Tatiana, and plaintiffs suggest no other basis for such a duty. Plaintiffs have, *432therefore, failed to show that the trial court erred in sustaining the demurrer of the police defendants without leave to amend.

1. Plaintiffs’complaints

Plaintiffs, Tatiana’s mother and father, filed separate but virtually identical second amended complaints. The issue before us on this appeal is whether those complaints now state, or can be amended to state, causes of action against defendants. We therefore begin by setting forth the pertinent allegations of the complaints.3

Plaintiffs’ first cause of action, entitled “Failure to Detain a Dangerous Patient,” alleges that on August 20, 1969, Poddar was a voluntary outpatient receiving therapy at Cowell Memorial Hospital. Poddar informed Moore, his therapist, that he was going to kill an unnamed girl, readily identifiable as Tatiana, when she returned home from spending the summer in Brazil. Moore, with the concurrence of Dr. Gold, who had initially examined Poddar, and Dr. Yandell, assistant to the director of the department of psychiatry, decided that Poddar should be committed for observation in a mental hospital. Moore orally notified Officers Atkinson and Teel of the campus police that he would request commitment. He then sent a letter to Police Chief William Beall requesting the assistance of the police department in securing Poddar’s confinement.

Officers Atkinson, Brownrigg, and Halleran took Poddar into custody, but, satisfied that Poddar was rational, released him on his promise to stay away from Tatiana. Powelson, director of the department of psychiatry at Cowell Memorial Hospital, then asked the police to return Moore’s letter, directed that all copies of the letter and notes that Moore had taken as therapist be destroyed, and “ordered no action to place Prosenjit Poddar in 72-hour treatment and evaluation facility.”

*433Plaintiffs’ second cause of action, entitled “Failure to Warn On a Dangerous Patient,” incorporates the allegations of the first cause of action, but adds the assertion that defendants negligently permitted Poddar to be released from police custody without “notifying the parents of Tatiana Tarasoff that their daughter was in grave danger from Posenjit Poddar.” Poddar persuaded Tatiana’s brother to share an apartment with him near Tatiana’s residence; shortly after her return from Brazil, Poddar went to her residence and killed her.

Plaintiffs’ third cause of action, entitled “Abandonment of a Dangerous Patient,” seeks $10,000 punitive damages against defendant Powelson. Incorporating the crucial allegations of the first cause of action, plaintiffs charge that Powelson “did the things herein alleged with intent to abandon a dangerous patient, and said acts were done maliciously and oppressively.”

Plaintiffs’ fourth cause of action, for “Breach of Primary Duty to Patient and the Public,” states essentially the same allegations as the first cause of action, but seeks to characterize defendants’ conduct as a breach of duty to safeguard their patient and the public. Since such conclusory labels add nothing to the factual allegations of the complaint, the first and fourth causes of action are legally indistinguishable.

As we explain in part 4 of this opinion, plaintiffs’ first and fourth causes of action, which seek to predicate liability upon the defendants’ failure to bring about Poddar’s confinement, are barred by governmental immunity. Plaintiffs’ third cause of action succumbs to the decisions precluding exemplary damages in a wrongful death action. (See part 6 of this opinion.) We direct our attention, therefore, to the issue of whether plaintiffs’ second cause of action can be amended to state a basis for recovery.

2. Plaintiffs can state a cause of action against defendant therapists for negligent failure to protect Tatiana.

The second cause of action can be amended to allege that Tatiana’s death proximately resulted from defendants’ negligent failure to warn Tatiana or others likely to apprise her of her danger. Plaintiffs contend that as amended, such allegations of negligence and proximate causation, with resulting damages, establish a cause of action. Defendants, however, contend that in the circumstances of the present case they owed no duty of care to Tatiana or her parents and that, in the absence of such *434duty, they were free to act in careless disregard of Tatiana’s life and safety.

In analyzing this issue, we bear in mind that legal duties are not discoverable facts of nature, but merely conclusoiy expressions that, in cases of a particular type, liability should be imposed for damage done. As stated in Dillon v. Legg (1968) 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]: “The assertion that liability must ... be denied because defendant bears no ‘duty’ to plaintiff ‘begs the essential question—whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct... . [Duty] is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ (Prosser, Law of Torts [3d ed. 1964] at pp. 332-333.)”

In the landmark case of Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], Justice Peters recognized that liability should be imposed “for injury occasioned to another by his want of ordinary care or skill” as expressed in section 1714 of the Civil Code. Thus, Justice Peters, quoting from Heaven v. Pender (1883) 11 Q.B.D, 503, 509 stated: “ ‘whenever one person is by circumstances placed in such a position with regard to another . .. that if he did not use ordinary care and skill in his own conduct... he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.’ ”

We depart from “this fundamental principle” only upon the “balancing of a number of considerations”; major ones “are the foreseeability of harm to the plaintiff, 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.”4

The most important of these considerations in establishing duty is foreseeability. As a general principle, a “defendant owes a duty of *435care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399 [115 Cal.Rptr. 765, 525 P.2d 669]; Dillon v. Legg, supra, 68 Cal.2d 728, 739; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40 [123 Cal.Rptr. 468, 539 P.2d 36]; see Civ. Code, § 1714.) As we shall explain, however, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim. Since the relationship between a therapist and his patient satisfies this requirement, we need not here decide whether foreseeability alone is sufficient to create a duty to exercise reasonable care to protect a potential victim of another’s conduct.

Although, as we have stated above, under the common law, as a general rule, one person owed no duty to control the conduct of another5 (Richards v. Stanley (1954) 43 Cal.2d 60, 65 [271 P.2d 23]; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277 [40 Cal.Rptr. 812]; Rest.2d Torts (1965) § 315), nor to warn those endangered by such conduct (Rest.2d Torts, supra, § 314, com. c.; Prosser, Law of Torts (4th ed. 1971) § 56, p. 341), the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct (see Rest.2d Torts, supra, §§ 315-320). Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either “(a) a special relation . . . 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 . . . between the actor and the other which gives to the other a right of protection.”

*436Although plaintiffs’ pleadings assert no special relation between Tatiana and defendant therapists, they establish as between Poddar and defendant therapists the special relation that arises between a patient and his doctor or psychotherapist.6 Such a relationship may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable. care to control the behavior of a patient which may endanger other persons.7 A doctor must also warn a patient if the patient’s condition or medication renders certain conduct, such as driving a car, dangerous to others.8

Although the California decisions that recognize this duty have involved cases in which the defendant stood in a special relationship both to the victim and to the person whose conduct created the danger,9 we do not think that the duty should logically be constricted to such situations. Decisions, of other jurisdictions hold that the single relationship of a doctor to his patient is sufficient to support the duty to exercise reasonable care to protect others against dangers emanating from the patient’s illness. The courts hold that a doctor is liable to persons *437infected by his patient if he negligently fails to diagnose a contagious disease (Hofmann v. Blackmon (Fla.App. 1970) 241 So.2d 752), or, having diagnosed the illness, fails to warn members of the patient’s family (Wojcik v. Aluminum Co. of America (1959) 18 Misc.2d 740 [183 N.Y.S.2d 351, 357-358]; Davis v. Rodman (1921) 147 Ark. 385 [227 S.W. 612, 13 A.L.R. 1459]; Skillings v. Allen (1919) 143 Minn. 323 [173 N.W. 663, 5 A.L.R. 922]; see also Jones v. Stanko (1928) 118 Ohio St. 147 [6 Ohio L.Abs. 77, 160 N.E. 456]).

Since it involved a dangerous mental patient, the decision in Merchants Nat. Bank & Trust Co. of Fargo v. United States (D.N.D. 1967) 272 F.Supp. 409 comes closer to the issue. The Veterans Administration arranged for the patient to work on a local farm, but did not inform the farmer of the man’s background. The farmer consequently permitted the patient to come and go freely during nonworking hours; the patient borrowed a car, drove to his wife’s residence and killed her. Notwithstanding the lack of any “special relationship” between the Veterans Administration and the wife, the court found the Veterans Administration liable for the wrongful death of the wife.

In their summary of the relevant rulings Fleming and Maximov conclude that the “case law should dispel any notion that to impose on the therapists a duty to take precautions for the safety of persons threatened by a patient, where due care so requires, is in any way opposed to contemporary ground rules on the duty relationship. On the contrary, there now seems to be sufficient authority to support the conclusion that by entering into a doctor-patient relationship the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the patient.” (Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal.L. Rev. 1025, 1030.)

Defendants contend, however, that imposition of a duty to exercise reasonable care to protect third persons is unworkable because therapists cannot accurately predict whether or not a patient will resort to violence. In support of this argument amicus representing the American Psychiatric Association and other professional societies cites numerous articles which indicate that therapists, in the present state of the art, are unable reliably to predict violent acts; their forecasts, amicus claims, tend consistently to overpredict violence, and indeed are more often wrong *438than right.10 Since predictions of violence are often erroneous, amicus concludes, the courts should not render rulings that predicate the liability of therapists upon the validity of such predictions.

The role of the psychiatrist, who is indeed a practitioner of medicine, and that of the psychologist who performs an allied function, are like that of the physician who must conform to the standards of the profession and who must often make diagnoses and predictions based upon such evaluations. Thus the judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted rules of responsibility.

We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Obviously, we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional specialty] under similar circumstances.” (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [91 Cal.Rptr. 760, 478 P.2d 480, 45 A.L.R.3d 717]; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159-160 [41 Cal.Rptr. 577, 397 P.2d 161]; see 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 514 and cases cited.) Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence.

In the instant case, however, the pleadings do not raise any question as to failure of defendant therapists to predict that Poddar presented a serious danger of violence. On the contrary, the present complaints allege that defendant therapists did in fact predict that Poddar would kill, but were negligent in failing to warn.

*439Amicus contends, however, that even when a therapist does in fact predict that a patient poses a serious danger of violence to others, the therapist should be absolved of any responsibility for failing to act to protect the potential victim. In our view, however, once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. While the discharge of this duty of due care will necessarily vary with the facts of each case,11 in each instance the adequacy of the therapist’s conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. (Accord Cobbs v. Grant (1972) 8 Cal.3d 229, 243 [104 Cal.Rptr. 505, 502 P.2d 1].) As explained in Fleming and Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal.L.Rev. 1025, 1067: “. . . the ultimate question of resolving the tension between the conflicting interests of patient and potential victim is one of social policy, not professional expertise. ... In sum, the therapist owes a legal duty not only to his patient, but also to his patient’s would-be victim and is subject in both respects to scrutiny by judge and jury.”

Contrary to the assertion of amicus, this conclusion is not inconsistent with our recent decision in People v. Burnick, supra, 14 Cal.3d 306. Taking note of the uncertain character of therapeutic prediction, we held in Burnick that a person cannot be committed as a mentally disordered sex offender unless found to be such by proof beyond a reasonable doubt. (14 Cal.3d at p. 328.) The issue in the present context, however, is not whether the patient should be incarcerated, but whether the therapist should take any steps at all to protect the threatened victim; some of the alternatives open to the therapist, such as warning the victim, will not result in the drastic consequences of depriving the patient of his liberty. Weighing the uncertain and conjectural character of the alleged damage done the patient by such a warning against the peril to the victim’s life, we conclude that professional inaccuracy in predicting violence cannot negate the therapist’s duty to protect the threatened victim.

*440The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved. We would hesitate to hold that the therapist who is aware that his patient expects to attempt to assassinate the President of the United States would not be obligated to warn the authorities because the therapist cannot predict with accuracy that his patient will commit the crime.

Defendants further argue that free and open communication is essential to psychotherapy (see In re Lifschutz (1970) 2 Cal.3d 415, 431-434 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1]); that “Unless a patient... is assured that... information [revealed by him] can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which-diagnosis and treatment... depends.” (Sen. Com. on Judiciary, comment on Evid. Code, § 1014.) The giving of a warning, defendants contend, constitutes a breach of trust which entails the revelation of confidential communications.12

We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy (see In re Lifschutz, supra, 2 Cal.3d at p. 432), and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. The Legislature has undertaken the difficult task of balancing the countervailing concerns. In Evidence Code section 1014, it established a broad rule of privilege to protect confidential communications between patient and psychothera*441pist. In Evidence Code section 1024, the Legislature created a specific and limited exception to the psychotherapist-patient privilege': “There is no privilege ... if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.”13

We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient’s relationship with his therapist and with the persons threatened. To the contrary, the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger. (See Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal.L.Rev. 1025, 1065-1066.)14

The revelation of a communication under the above- circumstances is not a breach of trust or a violation of professional ethics; as stated in the Principles of Medical Ethics of the American Medical Association (1957), section 9: “A physician may not reveal the confidence entrusted to him in the course of medical attendance .. . unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of *442the individual or of the community.”15 (Italics added.) We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.

Our current crowded and computerized society compels the interdependence of its members. In this risk-infested society we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal. If the exercise of reasonable care to protect the threatened victim requires the therapist to warn the endangered party or those who can reasonably be expected to notify him, we see no sufficient societal interest that would protect and justify concealment. The containment of such risks lies in the public interest. For the foregoing reasons, we find that plaintiffs’ complaints can be amended to state a cause of action against defendants Moore, Powelson, Gold, and Yandell and against the Regents as their employer, for breach of a duty to exercise reasonable care to protect Tatiana.16

Finally, we reject the contention of the dissent that the provisions of the Lanterman-Petris-Short Act which govern the release of confidential information (Welf. & Inst. Code, §§ 5328-5328.9) prevented defendant therapists from warning Tatiana. The dissent’s contention rests on the assertion that Dr. Moore’s letter to the campus police constituted an “application in writing” within the meaning of Welfare and Institutions Code section 5150, and thus initiates proceedings under the Lanterman-Petris-Short Act. A closer look at the terms of section 5150, however, will demonstrate that it is inapplicable to the present case.

Section 5150 refers to a written application only by a professional person who is “a member of the attending staff ... of an evaluation *443facility designated by the county,” or who is himself “designated by the county” as one authorized to take a person into custody and place him in a facility designated by the county and approved by the State Department of Mental Hygiene. The complaint fails specifically to allege that Dr. Moore was so empowered. Dr. Moore and the Regents cannot rely upon any inference to the contrary that might be drawn from plaintiff’s allegation that Dr. Moore intended to “assign” a “detention” on Poddar; both Dr. Moore and the Regents have expressly conceded that neither Cowell Memorial Hospital nor any member of its staff has ever been designated by the County of Alameda to institute involuntary commitment proceedings pursuant to section 5150.

Furthermore, the provisions of the Lanterman-Petris-Short Act defining a therapist’s duty to withhold confidential information are expressly limited to “information and records obtained in the course of providing services under Division 5 (commencing with section 5000), Division 6 (commencing with section 6000), or Division 7 (commencing with section 7000)” of the Welfare arid Institutions Code (Welf. & Inst. Code, § 5328). (Italics added.) Divisions 5, 6 and 7 describe a variety of programs for treatment of the mentally ill or retarded.17 The pleadings at issue on this appeal, however, state no facts showing that the psychotherapy provided to Poddar by the Cowell Memorial Hospital falls under any of these programs. We therefore conclude that the Lanterman-Petris-Short Act does not govern the release of information acquired by Moore during the course of rendition of those services.

Neither can we adopt the dissent’s suggestion that we import wholesale the detailed provisions of the Lanterman-Petris-Short Act regulating the disclosure of confidential information and apply them to disclosure of information not governed by the act. Since the Legislature did not extend the act to control all disclosures of confidential matter by a therapist, we must infer that the Legislature did not relieve the courts of their obligation to define by reference to the principles of the common law the obligation of the therapist in those situations not governed by the act.

*444Turning now to the police defendants, we conclude that they do not have any such special relationship to either Tatiana or to Poddar sufficient to impose upon such defendants a duty to warn respecting Poddar’s violent intentions. (See Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9-10 [120 Cal.Rptr. 5]; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 593 [114 Cal.Rptr. 332].) Plaintiffs suggest no theory,18 and plead no facts that give rise to any duty to warn on the part of the police defendants absent such a special relationship. They have thus failed to demonstrate that the trial court erred in denying leave to amend as to the police defendants. (See Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 [75 Cal.Rptr. 766, 451 P.2d 406]; Filice v. Boccardo (1962) 210 Cal.App.2d 843, 847 [26 Cal.Rptr. 789].)

3. Defendant therapists are not immune from liability for failure to

warn.

We address the issue of whether defendant therapists are protected by governmental immunity for having failed to warn Tatiana or those who reasonably could have been expected to notify her of her peril. We postulate our analysis on section 820.2 of the Government Code.19 That provision declares, with exceptions not applicable here, that “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion [was] abused.”20

*445Noting that virtually every public act admits of some element of discretion, we drew the line in Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352], between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. We concluded that section 820.2 affords immunity only for “basic policy decisions.” (Italics added.) (See also Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1057-1058 [84 Cal.Rptr. 27]; 4 Cal. Law Revision Com. Rep. (1963) p. 810; Van Alstyne, Supplement to Cal. Government Tort liability (Cont. Ed. Bar 1969) § 5.54, pp. 16-17; Comment, California Tort Claims Act: Discretionary Immunity (1966) 39 So.Cal.L.Rev. 470, 471; cf. James, Tort Liability of Governmental Units and Their Officers (1955) 22 U.Chi.L.Rev. 610, 637-638, 640, 642, 651.)

We also observed that if courts did not respect this statutory immunity, they would find themselves “in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government.” (Johnson v. State of California, supra, at p. 793.) It therefore is necessary, we concluded, to “isolate those areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.” (Johnson v. State of California, supra, at p. 794.) After careful analysis we rejected, in Johnson, other rationales commonly advanced to support governmental immunity21 and concluded that the immunity’s scope should be no greater than is required to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions.

Relying on Johnson, we conclude that defendant therapists in the present case are not immune from liability for their failure to warn of Tatiana’s peril. Johnson held that a parole officer’s determination whether to warn an adult couple that their prospective foster child had a background of violence “presented] no . . . reasons for immunity” (Johnson v. State of California, supra, at p. 795), was “at the lowest, *446ministerial rung of official action” (id., at p. 796), and indeed constituted “a classic case for the imposition of tort liability.” (Id., p. 797; cf. Morgan v. County of Yuba, supra, 230 Cal.App.2d 938, 942-943.) Although defendants in Johnson argued that the decision whether to inform the foster parents of the child’s background required the exercise of considerable judgmental skills, we concluded that the state was not immune from liability for the parole officer’s failure to warn because such a decision did not rise to the level of a “basic policy decision.”

We also noted in Johnson that federal courts have consistently categorized failures to warn of latent dangers as falling outside the scope of discretionary omissions immunized by the Federal Tort Claims Act.22 (See United Air Lines, Inc. v. Wiener (9th Cir. 1964) 335 F.2d 379, 397-398, cert. den. sub nom. United Air Lines, Inc. v. United States, 379 U.S. 951 [13 L.Ed.2d 549, 85 S.Ct. 452] (decision to conduct military training flights was discretionary but failure to warn commercial airline was not); United States v. State of Washington (9th Cir. 1965) 351 F.2d 913, 916 (decision where to place transmission lines spanning canyon was assumed to be discretionary but failure to warn pilot was not); United States v. White (9th Cir. 1954) 211 F.2d 79, 82 (decision not to “dedud” army firing range assumed to be discretionaiy but failure to warn person about to go onto range of unsafe condition was not); Bulloch v. United States (D.Utah 1955) 133 F.Supp. 885, 888 (decision how and when to conduct nuclear test deemed discretionary but failure to afford proper notice was not); Hernandez v. United States (D.Hawaii 1953) 112 F.Supp. 369, 371 (decision to erect road block characterized as discretionary but failure to warn of resultant hazard was not).

We conclude, therefore, that the therapist defendants’ failure to warn Tatiana or those who reasonably could have been expected to notify her of her peril does not fall within the absolute protection afforded by section 820.2 of the Government Code. We emphasize that our conclu*447sion does not raise the specter of therapists employed by the government indiscriminately being held liable for damage despite their exercise of sound professional judgment. We require of publicly employed therapists only that quantum of care which the common law requires of private therapists. The imposition of liability in those rare cases in which a public employee falls short of this standard does not contravene the language or purpose of Government Code section 820.2.

4. Defendant therapists are immune from liability for failing to

confine Poddar.

We sustain defendant therapists’ contention that Government Code section 856 insulates them from liability under plaintiffs’ first and fourth causes of action for failing to confine Poddar. Section 856 affords public entities and their employees absolute protection from liability for “any injury resulting from determining in accordance with any applicable enactment.. . whether to confine a person for mental illness.” Since this section refers to a determination to confine “in accordance with any applicable enactment,” plaintiffs suggest that the immunity is limited to persons designated under Welfare and Institutions Code section 5150 as authorized finally to adjudicate a patient’s confinement. Defendant therapists, plaintiffs point out, are not among the persons designated under section 5150.

The language and legislative history of section 856, however, suggest a far broader immunity. In 1963, when section 856 was enacted, the Legislature had not established the statutoiy structure of the Lanterman-Petris-Short Act. Former Welfare and Institutions Code section 5050.3 (renumbered as Welf. & Inst. Code, § 5880; repealed July 1, 1969) which resembled present section 5150, authorized emergency detention at the behest only of peace officers, health officers, county physicians, or assistant county physicians; former section 5047 (renumbered as Welf. & Inst. Code, § 5551; repealed July 1, 1969), however, authorized a petition seeking commitment by any person, including the “physician attending the patient.” The Legislature did not refer in section 856 only to those persons authorized to institute emergency proceedings under section 5050.3; it broadly extended immunity to all employees who acted in accord with “any applicable enactment,” thus granting immunity not only to persons who are empowered to confine, but also to those authorized to request or recommend confinement.

*448The Lanterman-Petris-Short Act, in its extensive revision of the procedures for commitment of the mentally ill, eliminated any specific statutory reference to petitions by treating physicians, but it did not limit the authority of a therapist in government employ to request, recommend or initiate actions which may lead to commitment of his patient under the act. We believe that the language of section 856, which refers to any action in the course of employment and in accordance with any applicable enactment, protects the therapist who must undertake this delicate and difficult task. (See Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal.L.Rev. 1025, 1064.) Thus the scope of the immunity extends not only to the final determination to confine or not to confine the person for mental illness, but to all determinations involved in the process of commitment. (Cf. Hernandez v. State of California (1970) 11 Cal.App.3d 895, 899-900 [90 Cal.Rptr. 205].)

Turning first to Dr. Powelson’s status with respect to section 856, we observe that the actions attributed to him by plaintiffs’ complaints fall squarely within the protections furnished by that provision. Plaintiffs allege Powelson ordered that no actions leading to Poddar’s detention be taken. This conduct reflected Powelson’s determination not to seek Poddar’s confinement and thus falls within the statutory immunity.

Section 856 also insulates Dr. Moore for his conduct respecting confinement, although the analysis in his case is a bit more subtle. Clearly, Moore’s decision that Poddar be confined was not a proximate cause of Tatiana’s death, for indeed if Moore’s efforts to bring about Poddar’s confinement had been successful, Tatiana might still be alive today. Rather, any confinement claim against Moore must rest upon Moore’s failure to overcome Powelson’s decision and actions opposing confinement.

Such a claim, based as it necessarily would be, upon a subordinate’s failure to prevail over his superior, obviously would derive from a rather onerous duty. Whether to impose such a duty we need not decide, however, since we can confine our analysis to the question whether Moore’s failure to overcome Powelson’s decision realistically falls within the protection afforded by section 856. Based upon the allegations before us, we conclude that Moore’s conduct is protected.

Plaintiffs’ complaints imply that Moore acquiesced in Powelson’s countermand of Moore’s confinement recommendation. Such acquies*449cence is functionally equivalent to determining not to seek Poddar’s confinement and thus merits protection under section 856. At this stage we are unaware, of course, precisely how Moore responded to Powelson’s actions; he may have debated the confinement issue with Powelson, for example, or taken no initiative whatsoever, perhaps because he respected Powelson’s judgment, feared for his future at the hospital, or simply recognized that the proverbial handwriting was on the wall. None of these possibilities constitutes, however, the type of careless or wrongful behavior subsequent to a decision respecting confinement which is stripped of protection by the exception in section 856.23 Rather, each is in the nature of a decision not to continue to press for Poddar’s confinement. No language in plaintiffs’ original or amended complaints suggests that Moore determined to fight Powelson, but failed successfully to do so, due to negligent or otherwise wrongful acts or omissions. Under the circumstances, we conclude that plaintiffs’ second amended complaints allege facts which trigger immunity for Dr. Moore under section 856.24

5. Defendant police officers are immune from liability for failing to

confine Poddar in their custody.

Confronting, finally, the question whether the defendant police officers are immune from liability for releasing Poddar after his brief confinement, we conclude that they are. The source of their immunity is section 5154 of the Welfare and Institutions Code, which declares that: “[t]he professional person in charge of the facility providing 72-hour treatment and evaluation, his designee, and the peace officer responsible for the detainment of the person shall not be held civilly or criminally liable for any action by a person released at or before the end of 72 hours . . . .” (Italics added.)

Although defendant police officers technically were not “peace officers” as contempláted by the Welfare and Institutions Code,25 *450plaintiffs’ assertion that the officers incurred liability by failing to continue Poddar’s confinement clearly contemplates that the officers were “responsible for the detainment of [Poddar].” We could not impose a duty upon the officers to keep Poddar confined yet deny them the protection furnished by a statute immunizing those “responsible for . . . [confinement].” Because plaintiffs would have us treat defendant officers as persons who were capable of performing the functions of the “peace officers” contemplated by the Welfare and Institutions Code, we must accord defendant officers the protections which that code prescribed for such “peace officers.”

6. Plaintiffs’ complaints state no cause of action for exemplary damages.

Plaintiff’s third cause of action seeks punitive damages against defendant Powelson. The California statutes and decisions, however, have been interpreted to bar the recoveiy of punitive damages in a wrongful death action. (See Pease v. Beech Aircraft Corp. (1974) 38 Cal.App.3d 450, 460-462 [113 Cal.Rptr. 416] and authorities there cited.)

7. Conclusion

For the reasons stated, we conclude that plaintiffs can amend their complaints to state a cause of action against defendant therapists by asserting that the therapists in fact determined that Poddar presented a serious danger of violence to Tatiana, or pursuant to the standards of their profession should have so determined, but nevertheless failed to exercise reasonable care to protect her from that danger. To the extent, however, that plaintiffs base their claim that defendant therapists breached that duty because they failed to procure Poddar’s confinement, the therapists find immunity in Government Code section 856. Further, as to the police defendants we conclude that plaintiffs have failed to show that the trial court erred in sustaining their demurrer without leave to amend.

The judgment of the superior court in favor of defendants Atkinson, Beall, Brownrigg, Hallernan, and Teel is affirmed. The judgment of the superior court in favor of defendants Gold, Moore, Powelson, Yandell, and the Regents of the University of California is reversed, and the cause remanded for further proceedings consistent with the views expressed herein.

Wright, C. J., Sullivan, J., and Richardson, J., concurred.

*451MOSK, J., Concurring and Dissenting.

I concur in the result in this instance only because the complaints allege that defendant therapists did in fact predict that Poddar would kill and were therefore negligent in failing to warn of that danger. Thus the issue here is veiy narrow: we are not concerned with whether the therapists, pursuant to the standards of their profession, “should have” predicted potential violence; they allegedly did so in actuality. Under these limited circumstances I agree that a cause of action can be stated.

Whether plaintiffs can ultimately prevail is problematical at best. As the complaints admit, the therapists did notify the police that Poddar was planning to kill a girl identifiable as Tatiana. While I doubt that more should be required, this issue may be raised in defense and its determination is a question of fact.

I cannot concur, however, in the majority’s rule that a therapist may be held liable for failing to predict his patient’s tendency to violence if other practitioners, pursuant to the “standards of the profession,” would have done so. The question is, what standards? Defendants and a responsible amicus curiae, supported by an impressive body of literature discussed at length in our recent opinion in People v. Burnick (1975) 14 Cal.3d 306 [121 Cal.Rptr. 488, 535 P.2d 352], demonstrate that psychiatric predictions of violence are inherently unreliable.

In Burnick, at pages 325-326, we observed: “In the light of recent studies it is no longer heresy to question the reliability of psychiatric predictions. Psychiatrists themselves would be the first to admit that however desirable an infallible crystal ball might be, it is not among the tools of their profession. It must be conceded that psychiatrists still experience considerable difficulty in confidently and accurately diagnosing mental illness. Yet those difficulties are multiplied manyfold when psychiatrists venture from diagnosis to prognosis and undertake to predict the consequences of such illness: ' “A diagnosis of mental illness tells us nothing about whether the person so diagnosed is or is not dangerous. Some mental, patients are dangerous, some are not. Perhaps the psychiatrist is an expert at deciding whether a person is mentally ill, but is he an expert at predicting which of the persons so diagnosed are dangerous? Sane people, too, are dangerous, and it may legitimately be inquired whether there is anything in the education, training or experience of psychiatrists which renders them particularly adept at predicting dangerous behavior. Predictions of dangerous behavior, no *452matter who makes them, are incredibly inaccurate, and there is a growing consensus that psychiatrists are not uniquely qualified to predict dangerous behavior and are, in fact, less accurate in their predictions than other professionals.” ’ (Murel v. Baltimore City Criminal Court (1972)... 407 U.S. 355, 364-365, fn. 2 [32 L.Ed.2d 791, 796-797, 92 S.Ct. 2091] (Douglas, J., dissenting from dismissal of certiorari).)” (Fns. omitted.) (See also authorities cited at p. 327 & fn. 18 of 14 Cal.3d.)

The majority confidently claim their opinion is not offensive to Burnick, on the stated ground that Burnick involved proceedings to commit an alleged mentally disordered sex offender and this case does not. I am not so sanguine about the distinction. Obviously the two cases are not factually identical, but the similarity in issues is striking: in Burnick we were likewise called upon to appraise the ability of psychiatrists to predict dangerousness, and while we declined to bar all such testimony {id., at pp. 327-328) we found it so inherently untrustworthy that we would permit confinement even in a so-called civil proceeding only upon proof beyond a reasonable doubt.

I would restructure the rule designed by the majority to eliminate all reference to conformity to standards of the profession in predicting violence. If a psychiatrist does in fact predict violence, then a duty to warn arises. The majority’s expansion of that rule will take us from the world of reality into the wonderland of clairvoyance.

CLARK, J.

Until today’s majority opinion, both legal and medical authorities have agreed that confidentiality is essential to effectively treat the mentally ill, and that imposing a duty on doctors to disclose patient threats to potential victims would greatly impair treatment. Further, recognizing that effective treatment and society’s safety are necessarily intertwined, the Legislature has already decided effective and confidential treatment is preferred over imposition of a duty to warn.

The issue whether effective treatment for the mentally ill should be sacrificed to a system of warnings is, in my opinion, properly one for the Legislature, and we are bound by its judgment. Moreover, even in the absence of clear legislative direction, we must reach the same conclusion because imposing the majority’s new duty is certain to result in a net increase in violence.

The majority rejects the balance achieved by the Legislature’s Lanterman-Petris-Short Act. (Welf. & Inst. Code, § 5000 et seq., *453hereafter the act.)1 In addition, the majority fails to recognize that, even absent the act, overwhelming policy considerations mandate against sacrificing fundamental patient interests without gaining a corresponding increase in public benefit.

Statutory Provisions

Although the parties have touched only briefly on the nondisclosure provisions of the act, amici have pointed out their importance. The instant case arising after ruling on demurrer, the parties must confront the act’s provisions in the trial court. In these circumstances the parties’ failure to fully meet the provisions of the act would not justify this court’s refusal to discuss and apply the law.

Having a grave impact on future treatment of the mentally ill in our state, the majority opinion clearly transcends the interests of the immediate parties and must discuss all applicable law. It abdicates judicial responsibility to refuse to recognize the clear legislative policy reflected in the act.

Effective 1 July 1969, the Legislature created a comprehensive statutory resolution of the rights and duties of both the mentally infirm and those charged with their care and treatment. The act’s purposes include ending inappropriate commitment, providing prompt care, protecting public safety, and safeguarding personal rights. (§ 5001.) The act applies to both voluntary and involuntary commitment and to both public and private institutions; it details legal procedure for commitment; it enumerates the legal and civil rights of persons committed; and it spells out the duties, liabilities and rights of the psychotherapist. Thus the act clearly evinces the Legislature’s weighing of the countervailing concerns presently before us—when a patient has threatened a third person during psychiatric treatment.

Reflecting legislative recognition that disclosing confidences impairs effective treatment of the mentally ill, and thus is contrary to the best interests of society, the act establishes the therapist’s duty to not disclose. Section 5328 provides in part that “[a]ll information and records obtained in the course of providing services ... to either voluntary or involuntary recipients of services shall be confidential.” (Italics added.) Further, a patient may enjoin disclosure in violation of statute and. may *454recover the greater of $500 or three times the amount of actual damage for unlawful disclosure. (§ 5330.)

However, recognizing that some private and public interests must override the patient’s, the Legislature established several limited exceptions to confidentiality.2 The limited nature of these exceptions and the *455legislative concern that disclosure might impair treatment, thereby harming both patient and society, are shown by section 5328.1. The section provides that a therapist may disclose “to a member of the family of a patient the information that the patient is presently a patient in the facility or that the patient is seriously physically ill. .. if the professional person in charge of the facility determines that the release of such information is in the best interest of the patient.” Thus, disclosing even the fact of treatment is severely limited.

As originally enacted the act contained no provision allowing the therapist to warn anyone of a patient’s threat. In 1970, however, the act was amended to permit disclosure in two limited circumstances. Section 5328 was amended, in subdivision (g), to allow disclosure “[/]o governmental law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families.” (Italics added.) In addition, section 5328.3 was added to provide that when “necessary for the protection of the patient or others due to the patient’s disappearance from, without prior notice to, a designated facility and his whereabouts is unknown, notice of such disappearance may be made to relatives and governmental law enforcement agencies designated by the physician in charge of the patient or the professional person in charge of the facility or his designee.” (Italics added.)

Obviously neither exception to the confidentiality requirement is applicable to the instant case.

Not only has the Legislature specifically dealt with disclosure and warning, but it also has dealt with therapist and police officer liability for acts of the patient. The Legislature has provided that the therapist and the officer shall not be liable for prematurely releasing the patient. (§§ 5151, 5154,5173, 5278, 5305, 5306,)

*456Ignoring the act’s detailed provisions, the majority has chosen to focus on the “dangerous patient exception” to the psychotherapist-patient privilege in Evidence Code sections 1014, 1024 as indicating that “the Legislature has undertaken the difficult task of balancing the countervailing concerns.” (Ante, p. 440.) However, this conclusion is erroneous. The majority fails to appreciate that when disclosure is permitted in an evidentiary hearing, a fourth interest comes into play—the court’s concern in judicial supervision. Because they are necessary to the administration of justice, disclosures to the courts are excepted from the nondisclosure requirement by section 5328, subdivision (f). However, this case does not involve a court disclosure. Subdivision (f) and the Evidence Code sections relied on by the majority are clearly inapposite.

The provisions of the act are applicable here. Section 5328 (see fn. 2, ante) provides, “All information and records obtained in the course of providing services under division 5 . . . shall be confidential.” (Italics added.) Dr. Moore’s letter describing Poddar’s mental condition for purposes of obtaining 72-hour commitment was undisputedly a transmittal of information designed to invoke application of division 5. As such it constituted information obtained in providing services under division 5. This is true regardless of whether Dr. Moore has been designated a professional person by the County of Alameda. Although section 5150 provides that commitment for 72 hours’ evaluation shall be based on a statement by a peace officer or person designated by the county, section 5328 prohibits disclosure of all information, not just disclosure of the committing statement or disclosure by persons designated by the county. In addition, section 5330 gives the patient a cause of action for disclosure of confidential information by “an individual” rather than the persons enumerated in section 5150.

Moreover, it appears from the allegations of the complaint that Dr. Moore is in fact a person designated by the county under section 5150. The complaint alleges that “On or about August 20, 1969, defendant Dr. Moore notified Officers Atkinson and Teel, he would give the campus police a letter of diagnosis on Prosenjit Poddar, so the campus police could pick up Poddar and take him to Herrick Hospital in Berkeley where Dr. Moore would assign a 72-hour Emergency Psychiatric Detention on Prosenjit Poddar.” Since there is no allegation that Dr. Moore was not authorized to sign the document, it. must be concluded that under the allegations of the complaint he was authorized and thus a professional person designated by the county.

*457Whether we rely on the facts as stated in the complaint that Dr. Moore is a designated person under section 5150 or on the strict prohibitions of section 5328 prohibiting disclosure of “all informationthe imposition of a duty to warn by the majority flies directly in the face of the Lanterman-Petris-Short Act.

Under the act, there can be no liability for Poddar’s premature release. It is likewise clear there exists no duty to warn. Under section 5328, the therapists were under a duty to not disclose, and no exception to that duty is applicable here. Establishing a duty to warn on the basis of general tort principles imposes a Draconian dilemma on therapists—either violate the act thereby incurring the attendant statutory penalties, or ignore the majority’s duty to warn thereby incurring potential civil liability. I am unable to assent to such.

If the majority feels that it must impose such a dilemma, then it has an obligation to specifically enumerate the circumstances under which the Lanterman-Petris-Short Act applies as opposed to the circumstances when “general tort principles” will govern. The majority’s failure to perform this obligation—leaving to the therapist the subtle questions as to when each opposing rule applies—is manifestly unfair.

Duty to Disclose in the Absence of Controlling Statutory Provision

Even assuming the act’s provisions are applicable only to conduct occurring after commitment, and not to prior conduct, the act remains applicable to the most dangerous patients—those committed. The Legislature having determined that the balance of several interests requires nondisclosure in the graver public danger commitment, it would be anomalous for this court to reweigh the interests, requiring disclosure for those less dangerous. Rather, we should follow the legislative direction by refusing to require disclosure of confidential information received by the therapist either before or in the absence of commitment. The Legislature obviously is more capable than is this court to investigate, debate and weigh potential patient harm through disclosure against the risk of public harm by nondisclosure. We should defer to its judgment.

Common Law Analysis

Entirely apart from the statutory provisions, the same result must be reached upon considering both general tort principles and the public *458policies favoring effective treatment, reduction of violence, and justified commitment.

Generally, a person owes no duty to control the conduct of another. (Richards v. Stanley (1954) 43 Cal.2d 60, 65 [271 P.2d 23]; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277 [40 Cal.Rptr. 812]; Rest.2d Torts (1965) § 315.) Exceptions are recognized only in limited situations where (1) a special relationship exists between the defendant and injured party, or (2) a special relationship exists between defendant and the active wrongdoer, imposing a duty on defendant to control the wrongdoer’s conduct. The majority does not contend the first exception is appropriate to this case.

Policy generally determines duty. (Dillon v. Legg (1968) 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316].) Principal policy considerations include foreseeability of harm, certainty of the plaintiff’s injury, proximity of the defendant’s conduct to the plaintiff’s injury, moral blame attributable to defendant’s conduct, prevention of future harm, burden on the defendant, and consequences to the community. (Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561,32 A.L.RJd 496].)

Overwhelming policy considerations weigh against imposing a duty on psychotherapists to warn a potential victim against harm. While offering virtually no benefit to society, such a duty will frustrate psychiatric treatment, invade fundamental patient rights and increase violence.

The importance of psychiatric treatment and its need for confidentiality have been recognized by this court. (In re Lifschutz (1970) 2 Cal.3d 415, 421-422 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1].) “It is clearly recognized that the very practice of psychiatry vitally depends upon the reputation in the community that the psychiatrist will not tell.” (Slovenko, Psychiatry and a Second Look at the Medical Privilege (1960) 6 Wayne L.Rev. 175, 188.)

Assurance of confidentiality is important for three reasons. Deterrence From Treatment

First, without substantial assurance of confidentiality, those requiring treatment will be deterred from seeking assistance. (See Sen. Judiciary Com. comment accompanying § 1014 of Evid. Code; Slovenko, supra, 6 *459Wayne L.Rev. 175, 187-188; Goldstein & Katz, Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute (1962) 36 Conn.Bar J. 175, 178.) It remains an unfortunate fact in our society that people seeking psychiatric guidance tend to become stigmatized. Apprehension of such stigma—apparently increased by the propensity of people considering treatment to see themselves in the worst possible light—creates a well-recognized reluctance to seek aid. (Fisher, The Psychotherapeutic Professions and the Law of Privileged Communications (1964) 10 Wayne L.Rev. 609, 617; Slovenko, supra, 6 Wayne L.Rev. 175, 188; see also Rappeport, Psychiatrist-Patient Privilege (1963) 23 Md.L.J. 39, 46-47.) This reluctance is alleviated by the psychiatrist’s assurance of confidentiality.

Full Disclosure

Second, the guarantee of confidentiality is essential in eliciting the full disclosure necessary for effective treatment. (In re Lifschutz, supra, 2 Cal.3d 415, 431; Taylor v. United States (D.C.Cir. 1955) 222 F.2d 398, 401 [95 App.D.C. 373]; Goldstein & Katz, supra, 36 Conn.Bar J. 175, 178; Heller, Some Comments to Lawyers on the Practice of Psychiatry (1957) 30 Temp.L.Q. 401; Guttmacher & Weihofen, Privileged Communications Between Psychiatrist and Patient (1952) 28 Ind.L.J.32, 34.)3 The psychiatric patient approaches treatment with conscious and unconscious inhibitions against revealing his innermost thoughts. “Every person, however well-motivated, has to overcome resistances to therapeutic exploration. These resistances seek support from every possible source and the possibility of disclosure would easily be employed in the service of resistance.” (Goldstein & Katz, supra, 36 Conn.Bar J. 175, 179; see also, 118 Am.J.Psych. 734, 735.) Until a patient can trust his psychiatrist not to violate their confidential relationship, “the unconscious psychological control mechanism of repression will prevent the recall of past experiences.” (Butler, Psychotherapy and Griswold: Is Confidentiality a Privilege or a Right? (1971) 3 Conn.L.Rev. 599, 604.)

Successful Treatment

Third, even if the patient fully discloses his thoughts, assurance that the confidential relationship will not be breached is necessary to *460maintain his trust in his psychiatrist—the very means by which treatment is effected. “[T]he essence of much psychotherapy is the contribution of trust in the external world and ultimately in the self, modelled upon the trusting relationship established during therapy.” (Dawidoff, The Malpractice of Psychiatrists, 1966 Duke L.J. 696, 704.) Patients will be helped only if they can form a trusting relationship with the psychiatrist. (Id., at p. 704, fn. 34; Burham, Separation Anxiety (1965) 13 Arch.Gen.Psych. 346, 356; Heller, supra, 30 Temp.L.Q. 401, 406.) All authorities appear to agree that if the trust relationship cannot be developed because of collusive communication between the psychiatrist and others, treatment will be frustrated. (See, e.g., Slovenko (1973) Psychiatry and Law, p. 61; Cross, Privileged Communications Between Participants in Group Psychotherapy (1970) Law & Soc. Order, 191, 199; Hollender, The Psychiatrist and the Release of Patient Information (1960) 116 Am.J.Psych. 828, 829.)

Given the importance of confidentiality to the practice of psychiatry, it becomes clear the duty to warn imposed by the majority will cripple the use and effectiveness of psychiatry. Many people, potentially violent— yet susceptible to treatment—will be deterred from seeking it; those seeking it will be inhibited from making revelations necessary to effective treatment; and, forcing the psychiatrist to violate the patient’s trust will destroy the interpersonal relationship by which treatment is effected.

Violence and Civil Commitment

By imposing a duty to warn, the majority contributes to the danger to society of violence by the mentally ill and greatly increases the risk of civil commitment—the total deprivation of liberty—of those who should not be confined.4 The impairment of treatment and risk of improper commitment resulting from the new duty to warn will not be limited to a few patients but will extend to a large number of the mentally ill. *461Although under existing psychiatric procedures only a relatively few receiving treatment will ever present a risk of violence, the number making threats is huge, and it is the latter group—not just the former—whose treatment will be impaired and whose risk of commitment will be increased.

Both the legal and psychiatric communities recognize that the process of determining potential violence in a patient is far from exact, being fraught with complexity and uncertainty. (E.g., People v. Burnick (1975) 14 Cal.3d 306, 326 [121 Cal.Rptr. 488, 535 P.2d 352], quoting from Murel v. Baltimore City Criminal Court (1972) 407 U.S. 355, 364-365, fn. 2 [32 L.Ed.2d 791, 796-797, 92 S.Ct. 2091] (Douglas, J., dissenting from dismissal of certiorari); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L.Rev. 693, 711-716; Rector, Who Are the Dangerous? (July 1973) Bull.Am.Acad. Psych. & L. 186; Kozol, Boucher & Garofalo, The Diagnosis and Treatment of Dangerousness (1972) 18 Crime & Delinq. 371; Justice & Birkman, An Effort to Distinguish the Violent From the Nonviolent (1972) 65 So.Med.J. 703.)5 In fact, precision has not even been attained in predicting who of those having already committed violent acts will again become violent, a task recognized to be of much simpler proportions. (Kozol, Boucher & Garofalo, supra, 18 Crime & Delinq. 371, 384.)

This predictive uncertainty means that the number of disclosures will necessarily be large. As noted above, psychiatric patients are encouraged to discuss all thoughts of violence, and they often express such thoughts. However, unlike this court, the psychiatrist does not enjoy the benefit of *462overwhelming hindsight in seeing which few, if any, of his patients will ultimately become violent. Now, confronted by the majority’s new duty, the psychiatrist must instantaneously calculate potential violence from each patient on each visit. The difficulties researchers have encountered in accurately predicting violence will be heightened for the practicing psychiatrist dealing for brief periods in his office with .heretofore nonviolent patients. And, given the decision not to warn or commit must always be made at the psychiatrist’s civil peril, one can expect most doubts will be resolved in favor of the psychiatrist protecting himself.

Neither alternative open to the psychiatrist seeking to protect himself is in the public interest. The warning itself is an impairment of the psychiatrist’s ability to treat, depriving many patients of adequate treatment. It is to be expected that after disclosing their threats, a significant number of patients, who would not become violent if treated according to existing practices, will engage in violent conduct as a result of unsuccessful treatment. In short, the majority’s duty to warn will not only impair treatment of many who would never become violent but worse, will result in a net increase in violence.6

*463The second alternative open to the psychiatrist is to commit his patient rather than to warn. Even in the absence of threat of civil liability, the doubts of psychiatrists as to the seriousness of patient threats have led psychiatrists to overcommit to mental institutions. This overcommitment has been authoritatively documented in both legal and psychiatric studies. (Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, supra, 62 Cal.L.Rev. 693, 711 et seq.; Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma, 62 Cal.L.Rev. 1025, 1044-1046; Am. Psychiatric Assn. Task Force Rep. 8 (July 1974) Clinical Aspects of the Violent Individual, pp. 23-24; see Livermore, Malmquist & Meehl, On the Justifications for Civil Commitment, 117 U.Pa.L.Rev. 75, 84.) This practice is so prevalent that it has been estimated that “as many as twenty harmless persons are incarcerated for every one who will commit a violent act.” (Steadman & Cocozza, Stimulus/Response: We Can’t Predict Who Is Dangerous (Jan. 1975) 8 Psych. Today 32, 35.)

Given the incentive to commit created by the majority’s duty, this already serious situation will be worsened, contrary to Chief Justice Wright’s admonition “that liberty is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction.” (In re Gary W. (1971) 5 Cal.3d 296, 307 [96 Cal.Rptr. 1, 486 P.2d 1201].)

Conclusion

In adopting the act, the Legislature fully recognized the concerns that must govern our decision today—adequate treatment for the mentally ill, safety of our society, and our devotion to individual liberty, making overcommitment of the mentally ill abhorrent. (§ 5001.) Again, the Legislature balanced these concerns in favor of nondisclosure (§ 5328), thereby promoting effective treatment, reducing temptation for overcommitment, and ensuring greater safety for our society. Psychiatric and legal expertise on the subject requires the same judgment.

The tragedy of Tatiana Tarasoff has led the majority to disregard the clear legislative mandate of the Lanterman-Petris-Short Act. Worse, the majority impedes medical treatment, resulting in increased violence from—and deprivation of liberty to—the mentally ill.

*464We should accept legislative and medical judgment, relying upon effective treatment rather than on indiscriminate warning.

The judgment should be affirmed.

McComb, J., concurred.

ROBERTSON, Judge.

Detouring from its already lengthy opinion in this case, the Court of Appeals, Western District, speculated that dicta in Seward v. Terminal Railroad Association, 854 S.W.2d 426, 428-9 (Mo. banc 1993), acknowledged in Gray v. Russell, 853 S.W.2d 928, 930, n. 2 (Mo. banc 1993), amounted to a “sub silentio” overruling of the common law of this state basing premises liability on the status of the injured entrant to the land. We granted transfer because of the general interest of the issues raised in the case and to assure the western district that Seward did not abolish the licensee-invitee distinction in Missouri. 1 We have jurisdiction. Mo. Const, art. V, § 10. The judgment of the trial court sustaining the defendants’ motion for summary judgment is affirmed.

I.

Ronald and Mary Kinney hosted a Bible study at their home for members of the Northwest Bible Church. Appellant Jonathan Carter, a member of the Northwest Bible Church, attended the early morning Bible study at the Kinney’s home on February 3, 1990. Mr. Kinney had shoveled snow from his driveway the previous evening, but was not aware that ice had formed overnight. Mr. Carter arrived shortly after 7:00 a.m., slipped on a patch of ice in the Kinneys’ driveway, and broke his leg. The Carters filed suit against the Kinneys.

The parties agree that the Kinneys offered their home for the Bible study as part of a series sponsored by their church; that some Bible studies took place at the church and others were held at the homes of church members; that interested church members signed up for the studies on a sheet at the church, which actively encouraged enrollment but did not solicit contributions through the classes or issue an invitation to the general public to attend the studies; that the Kinneys and the Carters had not engaged in any social interaction outside of church prior to Mr. Carter’s injury, and that Mr. Carter had no social relationship with the other participants in the class. Finally, the parties agree that the Kinneys received neither a financial nor other tangible benefit from Mr. Carter in connection with the Bible study class.

They disagree, however, as to Mr. Carter’s status. Mr. Carter claims he was an invitee; the Kinneys say he was a licensee. And the parties dispute certain facts bearing on the purpose of his visit, specifically, whether the parties intended a future social relationship, and whether the Kinneys held the Bible study class in order to confer some intangible benefit on themselves and others.

On the basis of these facts, the Kinneys moved for summary judgment. The trial court sustained the Kinney’s summary judg *928 ment motion on the ground that Mr. Carter was a licensee and that the Kinneys did not have a duty to a licensee with respect to a dangerous condition of which they had no knowledge. This appeal followed.

II.

A.

This case comes to the Court on summary judgment. “Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of the facts as to which there is no genuine dispute, a right to judgment as a matter of law.” ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The propriety of summary judgment is purely an issue of law which an appellate court may review de novo on the record on appeal. Id.

As to premises liability, “the particular standard of care that society recognizes as applicable under a given set of facts is a question of law for the courts.” Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993). Thus, whether Mr. Carter was an invitee, as he claims, or a licensee is a question of law and summary judgment is appropriate if the defendants’ conduct conforms to the standard of care Mr. Carter’s status imposes on them.

B.

The Kinneys’ motion for summary judgment characterizes Mr. Carter as a social guest. The Kinneys’ description of Mr. Carter’s status as a social guest has led to some confusion in the parties’ briefing of the legal issues in this case. Indeed, the Carters assign error to the trial court’s decision to sustain the Kinneys’ motion for summary judgment, because they believe factual issues are in dispute as to that status.

Historically, premises liability cases recognize three broad classes of plaintiffs: trespassers, licensees and invitees. All entrants to land are trespassers until the possessor of the land gives them permission to enter. All persons who enter a premises with permission are licensees until the possessor has an interest in the visit such that the visitor “has reason to believe that the premises have been made safe to receive him.” 65 C.J.S. Negligence, § 63(41), 719. That makes the visitor an invitee. The possessor’s intention in offering the’invitation determines the status of the visitor and establishes the duty of care the possessor owes the visitor. Generally, the possessor owes a trespasser no duty of care, Seward, 854 S.W.2d at 428; the possessor owes a licensee the duty to make safe dangers of which the possessor is aware, Wells v. Goforth, 443 S.W.2d 155, 158 (Mo. banc 1969); and the possessor owes invitees the duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection. Harris, 857 S.W.2d at 225-6. The exceptions to these general rules are myriad, but not germane here.

A social guest is a person who has received a social invitation. Wolfson v. Chelist, 284 S.W.2d 447, 450 (Mo.1955). Though the parties seem to believe otherwise, Missouri does not recognize social guests as a fourth class of entrant. Cf. Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453 (1951). In Missouri, social guests are but a subclass of licensees. The fact that an invitation underlies a visit does not render the visitor an invitee for purposes of premises liability law. This is because “[t]he invitation was not tendered with any material benefit motive”.... and “[t]he invitation was not extended to the public generally or to some undefined portion of the public from which invitation, ... entrants might reasonably expect precautions have been taken, in the exercise of ordinary care, to protect them from danger.” Wolfson, 284 S.W.2d at 450. Thus, this Court held that there “is no reason for concluding it is unjust to the parties ... to put a social guest in the legal category of licensee.” Id. at 451.

It does not follow from this that a person invited for purposes not strictly social is perforce an invitee. As Wolfson clearly indicates, an entrant becomes an invitee when the possessor invites with the expectation of a material benefit from the visit or extends an invitation to the public generally. *929 See also Restatement (Second) of Torts, § 332 2 (defining an invitee for business purposes) and 65 C.J.S. Negligence, § 63(41) (A person is an invitee “if the premises are thrown open to the public and [the person] enters pursuant to the purposes for which they are thrown open.”)- Absent the sort of invitation from the possessor that lifts a licensee to invitee status, the visitor remains a licensee as a matter of law.

The record shows beyond cavil that Mr. Carter did not enter the Kinneys’ land to afford the Kinneys any material benefit. He is therefore not an invitee under the definition of invitee contained in Section 332 of the Restatement. The record also demonstrates that the Kinneys did not “throw open” their premises to the public in such a way as would imply a warranty of safety. The Kinneys took no steps to encourage general attendance by some undefined portion of the public; they invited only church members who signed up at church. They did nothing more than give permission to a limited class of persons — church members — to enter their property.

Mr. Carter’s response to the Kinneys’ motion for summary judgment includes Mr. Carter’s affidavit in which he says that he did not intend to socialize with the Kinneys and that the Kinneys would obtain an intangible benefit, albeit mutual, from Mr. Carter’s participation in the class. Mr. Carter’s affidavit attempts to create an issue of fact for the purpose of defeating summary judgment. But taking Mr. Carter’s statement of the facts as true in all respects, he argues a factual distinction that has no meaning under Missouri law. Human intercourse and the intangible benefits of sharing one’s property with others for a mutual purpose are hallmarks of a licensee’s permission to enter. Mr. Carter’s factual argument makes the legal point he wishes to avoid: his invitation is not of the sort that makes an invitee. He is a licensee.

The trial court concluded as a matter of law that Mr. Carter was a licensee, that the Kinneys had no duty to protect him from unknown dangerous conditions, and that the defendants were entitled to summary judgment as a matter of law. In that conclusion, the trial court was eminently correct.

C.

The Carters next argue that this Court should abolish the distinction between licensees and invitees and hold all possessors to a standard of reasonable care under the circumstances. They argue that the current system that recognizes a lower standard of care for licensees than invitees is arbitrary and denies deserving plaintiffs compensation for their injuries. See Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43, 52 (1973) (Abolition of the licensee/invitee distinction in favor of a duty of reasonable care in all circumstances “prevents the plaintiffs status as licensee or invitee from being the sole determinative factor in assessing the occupier’s liability.”) The Carters note that twenty states 3 have abolished the distinction since *930 1968 and encourage Missouri to join this “trend.”

The Kinneys claim that the trend is little more than a fad. They note that twelve states 4 have expressly rejected the abolition of the distinction since the “trend” began in 1968 and that the remaining eighteen states, including Missouri, have not directly addressed the issue and maintain the common law distinctions.

We are not persuaded that the lieensee/in-vitee distinction no longer serves. The possessor’s intentions in issuing the invitation determine not only the status of the entrant but the possessor’s duty of care to that entrant. The contours of the legal relationship that results from the possessor’s invitation reflect a careful and patient effort by courts over time to balance the interests of persons injured by conditions of land against the interests of possessors of land to enjoy and employ their land for the purposes they wish. Moreover, and despite the exceptions courts have developed to the general rules, the maintenance of the distinction between licensee and invitee creates fairly predictable rules within which entrants and possessors can determine appropriate conduct and juries can assess liability. To abandon the careful work of generations for an amorphous “reasonable care under the circumstances” standard seems — to put it kindly — improvident.

Though six states have abolished the distinction between licensee and invitee since Professor Keeton penned his words, he speculates that the failure of more states to join the “trend”

may reflect a more fundamental dissatisfaction with certain developments in accident law that accelerated during the 1960’s — reduction of whole systems of legal principles to a single, perhaps simplistic, standard of reasonable care, the sometimes blind subordination of other legitimate social objectives to the goals of accident prevention and compensation, and the commensurate shifting of the balance of power to the jury from the judge. At least it appears that the courts are ... acquiring a more healthy skepticism toward invitations to jettison years of developed jurisprudence in favor of beguiling legal panacea.

W.P. Keeton, Prosser and Keeton on the Law of Torts, § 62 (1984).

We remain among the healthy skeptics. The experience of the states that have abolished the distinction between licensee and invitee does not convince us that their idea is a better one. Indeed, we are convinced that they have chosen wrongly.

III.

The judgment of the trial court is affirmed.

Connolly, J.

The question presented is whether this court should abolish the common-law classifications of licensee and invitee and require a duty of reasonable care to all nontrespassers.

Roger W. Heins sued Webster County, Nebraska, doing business as Webster County Hospital, to recover for an injury to his back that he sustained when he fell upon the front entrance steps to the hospital. The district court for Webster County entered judgment in favor of the county, finding that because Heins was merely a licensee, the only duty that the county owed him was to refrain from willful or wanton negligence. Heins appeals, arguing that this court should reverse the decision of the district court and abolish the common-law classifications of licensee and invitee in favor of requiring a duty of reasonable care to all nontrespassers. We conclude that abolishing the distinction between invitee and licensee and requiring a duty of reasonable care to all lawful entrants is a more reasonable method of determining fault and is more responsive to the needs of present-day society. We therefore reverse the judgment of the district court.

FACTUAL BACKGROUND

Webster County experienced a heavy snowfall on October 31, 1991. On November 5, snow accumulation in Red Cloud, *752Nebraska, remained substantial. On that date, Heins traveled from his home in Sutton, Nebraska, to Red Cloud in order to visit his physician. While in Red Cloud, Heins, accompanied by his wife, Ruth, and daughter Jill, visited the Webster County Hospital. The evidence is disputed concerning the nature of this trip. Webster County claims that Heins was merely paying a social visit to his daughter Julie Heins, who was the director of nursing for the hospital. Heins claims that his visit was not only social, but also to coordinate plans for him to play Santa Claus for the hospital staff during the upcoming Christmas season. During their visit with Julie, Roger, Ruth, and Jill made plans to have lunch with Julie and a friend at a local restaurant.

While Roger, Ruth, and Jill were exiting the hospital through the main entrance, Roger fell. At trial, Roger testified that he held the front entrance door open for his wife and daughter and then started to step out onto the landing himself. At this point, Heins testified, he slipped and “went down into a pretzel, you might say, and I was hanging on to the door, and my behind hit the landing.” Both Jill and Heins claim to have seen a patch of ice on the landing after Heins fell, and attribute the cause of his fall to the ice.

Heins brought this action under the Political Subdivisions Tort Claims Act, Neb. Rev. Stat. §§ 13-901 through 13-926 (Reissue 1991 & Cum. Supp. 1994), claiming that Webster County was negligent (1) in failing to properly inspect the above-described entrance prior to inviting the public to use the entrance, (2) in failing to warn Heins of the existence of a dangerous condition, (3) in allowing the ice and snow to accumulate, and (4) in failing to remove the ice and snow.

Following a bench trial, the district court found that Heins “went to the Webster County Hospital to visit his daughter who was an employee of the hospital.” Furthermore, the court concluded that Heins was a licensee at the time of his fall and that the county did not act willfully or wantonly or fail to warn of known hidden dangers unobservable by Heins. Thus, the court entered judgment in favor of Webster County. Heins appeals.

*753ASSIGNMENTS OF ERROR

Summarized, Heins assigns that the district court erred in not generally holding the hospital to a duty of reasonable care to Heins. In the alternative, he argues the hospital should be held to a duty of reasonable care for one of the following reasons: (1) he was a public invitee, (2) he was a social guest on the hospital premises, or (3) hospital personnel knew he was on the premises.

STANDARD OF REVIEW

When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling. Nelson v. Metropolitan Utilities Dist., 249 Neb. 956, 547 N.W.2d 133 (1996); Whitten v. Malcolm, 249 Neb. 48, 541 N.W.2d 45 (1995); Lee Sapp Leasing v. Catholic Archbishop of Omaha, 248 Neb. 829, 540 N.W.2d 101 (1995).

ANALYSIS

This appeal questions the continued validity of the common-law classifications of licensee, invitee, and trespasser for the purposes of determining the duty of a landowner in premises liability cases. We begin by noting that this appeal presents our first consideration of this issue. In Buchanan v. Prickett & Son, Inc., 203 Neb. 684, 279 N.W.2d 855 (1979), a case involving the “fireman’s rule,” we declined to abrogate the policy of defining the extent of the duty of care by the use of the classifications. However, Buchanan did not raise the issue of whether we should retain the classifications, and we recognized that under the facts in Buchanan a reconsideration of the classifications was unnecessary.

Present Nebraska Law

Under present law, in order to ascertain the duty owed by landowners to entrants upon their land, courts have classified entrants as either licensees, invitees, or trespassers. Landowners owe invitees the duty of reasonable care to keep the premises safe for the use of the invitee. Neff v. Clark, 219 Neb. 521, 363 N.W.2d 925 (1985). An invitee is a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of *754the owner or occupant or for their mutual advantage. McIntosh v. Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996). However, we have limited the duty that a landowner owes to a licensee. A licensee has been defined as a person who is privileged to enter or remain upon the premises of another by virtue of the possessor’s express or implied consent, but who is not a business visitor. Id. An owner or occupant of premises owes only the duty to refrain from injuring a licensee by willful or wanton negligence or designed injury, or to warn him, as a licensee, of a hidden danger or peril known to the owner or occupant but unknown to or unobservable by the licensee, who is required to exercise ordinary care. Blackbird v. SDB Investments, 249 Neb. 13, 541 N.W.2d 25 (1995). A business visitor is considered an invitee, and thereby receives a higher degree of care, reasonable care, ostensibly because he or she conveys some benefit upon the landowner. See Roan v. Bruckner, 180 Neb. 399, 143 N.W.2d 108 (1966). If Heins was a licensee at the time of his injury, the hospital owed him the limited duty owed to a licensee. Therefore, under existing Nebraska law, the trial court correctly found for the hospital based on its finding that Heins was a licensee.

However, Heins calls into question the continued usefulness of the licensee and invitee classifications. In fact, a number of jurisdictions have decided that the common-law classifications have outlived their usefulness, and have either partially or completely abandoned the common-law classifications.

Overview of Other Jurisdictions

In 1957, England statutorily abolished the common-law distinction between licensees and invitees and imposed upon the occupier a “common duty of care” toward all persons who lawfully enter the premises. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 62 (5th ed. 1984). Shortly thereafter, in 1959, the U.S. Supreme Court decided that the classifications would not apply in admiralty law, stating that the classifications created a “semantic morass.” See, Kermarec v. Compagnie Generale, 358 U.S. 625, 631, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959); Keeton et al., supra. In 1968, the *755Supreme Court of California decided the landmark case Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968), which abolished the traditional duty classification scheme for licensees, invitees, and trespassers and replaced it with ordinary negligence principles.

A number of jurisdictions have followed California in abandoning all classifications, including that of trespasser. The jurisdictions that have followed California are: Hawaii (Pickard v. City & County, 51 Haw. 134, 452 P.2d 445 (1969)); Colorado (Mile High Fence v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971)); Smith v. Arbaugh’s Restaurant, Inc., 469 F.2d 97 (D.C. Cir. 1972), cert. denied 412 U.S. 939, 93 S. Ct. 2774, 37 L. Ed. 2d 399 (1973); Rhode Island (Mariorenzi v. Joseph DiPonte, Inc., 114 R.I. 294, 333 A.2d 127 (1975)) (but see Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056 (R.I. 1994) (restoring status category of trespasser)); New York (Basso v. Miller, 40 N.Y.2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564 (1976)); New Hampshire (Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631 (1976)); Louisiana (Cates v. Beauregard Electric Cooperative, Inc., 328 So. 2d 367 (La. 1976), cert. denied 429 U.S. 833, 97 S. Ct. 97, 50 L. Ed. 2d 98); Alaska (Webb v. City and Borough of Sitka, 561 P.2d 731 (Alaska 1977)); Illinois (Keller v. Mols, 129 Ill. App. 3d 208, 472 N.E.2d 161 (1984) (only with regard to child entrants)); Montana (Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491 (1985) (construing Montana statute to require duty of ordinary care to all)); and Nevada (Moody v. Manny’s Auto Repair, 110 Nev. 320, 871 P.2d 935 (1994)).

A number of states have abolished the distinctions between licensees and invitees but retained limited duties to trespassers. Prosser and Keeton explain the rationale for retaining a separate rule for trespassers thus: “[I]n a civilization based on private ownership, it is considered a socially desirable policy to allow a person to use his own land in his own way, without the burden of watching for and protecting those who come there without permission or right.” Keeton et al., supra, § 58 at 395. Furthermore, “invitees and licensees enter another’s lands under color of right, [but] a trespasser has no basis for claiming extended protection. There remains the possibility *756that the abandonment of the status of trespasser would place an unfair burden on a landowner who has no reason to expect a trespasser’s presence.” Poulin v. Colby College, 402 A.2d 846, 851 n.5 (Me. 1979).

The states that have abandoned the classifications with regard to licensees and invitees but retained them with regard to trespassers are: Minnesota (Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972)); Massachusetts (Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973)) (see, also, Schofield v. Merrill, 386 Mass. 244, 435 N.E.2d 339 (1982) (trespasser exclusion reaffirmed by vote of 4 to 3)); Wisconsin (Antoniewicz v. Reszczynski, 70 Wis. 2d 836, 236 N.W.2d 1 (1975)); North Dakota (O’Leary v. Coenen, 251 N.W.2d 746 (N.D. 1977)); Maine (Poulin v. Colby College, supra); Oregon (Ragnone v. Portland School Dist. No. 1J, 291 Or. 617, 633 P.2d 1287 (1981)); Tennessee (Hudson v. Gaitan, 675 S.W.2d 699 (Tenn. 1984)); Wyoming (Clarke v. Beckwith, 858 P.2d 293 (Wyo. 1993)); Kansas (Jones v. Hansen, 254 Kan. 499, 867 P.2d 303 (1994)); and New Mexico (Ford v. Bd. of County Com’rs, 118 N.M. 134, 879 P.2d 766 (1994)).

Many states have altered the common-law categories without abrogating them altogether. Missouri and Kentucky apply a duty of reasonable care once the presence of a visitor is known. While this approach does not expressly abrogate the common-law classifications, once a landowner or occupier knows of the presence of a licensee or trespasser, the landowner owes him or her the same duty of care that he owes to an invitee. Therefore, this approach is similar to the California rule and may have developed from the “discovered trespasser rule,” which provides that an occupier must exercise reasonable care for a trespasser’s safety once his or her presence is known. See Keeton et al., supra, § 58.

Other states have passed legislation altering the common-law categories. Connecticut was the first state to do so by providing that the landowner owed the same duty of care to social guests as he owed to invitees. See, Joseph A. Page, The Law of Premises Liability (2d ed. 1988); Conn. Gen. Stat. Ann. § 52-557a (West 1991). Other states have given the social guest the status of an invitee. See, Burrell v. Meads, *757569 N.E.2d 637 (Ind. 1991); Ferguson v. Bretton, 375 A.2d 225 (Me. 1977). Illinois eliminated the classifications by statute in 1984. See Ill. Ann. Stat. ch. 740, para. 130/2 (Smith-Hurd 1993).

However, the majority of states have retained the common-law distinctions. Thirty-six states and the District of Columbia have reconsidered the common-law classification scheme. Of the 37 jurisdictions reconsidering, 23 have abolished either some or all of the categories. Fourteen states have expressly retained the categories. Another 14 jurisdictions have simply continued to apply the common-law classifications without specifically addressing their continuing validity. We have been among the states continuing to follow the distinctions without specifically rejecting them.

Policy Reasons For and Against Abolishing Classifications

A number of policy reasons have been asserted for either abandoning or retaining the common-law classifications. Among the jurisdictions retaining the categories, most find value in the predictability of the common law. Some courts rejecting change have reasoned that replacement of a stable and established system of loss allocation results in the establishment of a system devoid of standards for liability. See, Jones v. Hansen, supra; Annot., 22 A.L.R.4th 294 (1983). It also has been suggested that the harshness of the common-law rules has been ameliorated by the judicial grafting of exceptions and that creation of subclassifications ameliorated the distinctions between active and passive negligence. Jones v. Hansen, supra. These states have concluded that abandoning the established system of liability in favor of a standard of reasonable care would decrease predictability and ensure that each case would be decided on its facts. Therefore, these states claim that landowners would be less able to guard against risks. Before Kansas joined those states abolishing the invitee-licensee distinction, the Kansas Supreme Court argued that to adopt one standard of care would lower the standard of care that is now owed to invitees and produce inconsistent, unpredictable rules of law. See Gerchberg v. Loney, 223 Kan. 446, *758576 P.2d 593 (1978). Furthermore, the Gerchberg court opined that to abolish the classifications would give unbridled discretion to the jury.

The most common reason asserted for abandoning the categories is that an entrant’s status should not determine the duty that the landowner owes to him or her. As the California Supreme Court stated in Rowland v. Christian, 69 Cal. 2d 108, 118, 443 P.2d 561, 568, 70 Cal. Rptr. 94, 104 (1968):

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.

In abolishing the invitee-licensee distinction, the Massachusetts Supreme Judicial Court recognized:

It no longer makes any sense to predicate the landowner’s duty solely on the status of the injured party as either a licensee or invitee. Perhaps, in a rural society with sparse land settleménts and large estates, it would have been unduly burdensome to obligate the owner to inspect and maintain distant holdings for a class of entrants who were using the property “for their own convenience” . .

. but the special immunity which the licensee rule affords landowners cannot be justified in an urban industrial society.

Mounsey v. Ellard, 363 Mass. 693 , 706, 297 N.E.2d 43, 51 (1973).

Another justification for abandoning the classifications is to eliminate the complex and unpredictable state of the law necessitated by the harsh nature of the common-law rules. See *759O’Leary v. Coenen, 251 N.W.2d 746 (N.D. 1977). As the U.S. Supreme Court proclaimed,

courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even- within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict.

Kermarec v. Compagnie Generale, 358 U.S. 625, 630-31, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959). The Court recognized that the “distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism.” 358 U.S. at 630. Referring to the judicial interpretation of the common-law distinctions as a “semantic morass,” the Court declined to adopt them into admiralty law. 358 U.S. at 631.

Those states abandoning the distinctions argue that instead of the entrant’s status, the foreseeability of the injury should be the controlling factor in determining the liability of the landowner. See, Basso v. Miller, 40 N.Y.2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564 (1976); Mariorenzi v. Joseph Di Ponte, Inc., 114 R.I. 294, 333 A.2d 127 (1975). Many jurisdictions that have abandoned the common-law classifications as determinants of liability have found that they remain relevant in determining the foreseeability of the harm under ordinary negligence principles. See, O’Leary v. Coenen, supra; Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972).

Application of the Law to Heins

The present case illustrates the frustration inherent in the classification scheme. In many instances, recovery by an entrant has become largely a matter of chance, dependent upon the pigeonhole in which the law has put him, e.g., “trespasser,” “licensee,” or “invitee.” Ford v. Bd. of County Com’rs, 118 N.M. 134, 879 P.2d 766 (1994); Peterson v. Balach, supra. When he was injured, Heins was exiting a county hospital, using the main entrance to the hospital, over *760the lunch hour. If Heins had been on the hospital premises to visit a patient or purchase a soft drink from a vending machine, he could have been classified as an invitee. See, e.g., Syas v. Nebraska Methodist Hospital Foundation, 209 Neb. 201, 307 N.W.2d 112 (1981). However, he came to visit his daughter and was denied recovery as a matter of law.

Thus, Heins was denied the possibility of recovering under present law, merely because on this trip to the hospital he happened to be a licensee rather than an invitee. In the instant case, the hospital would undergo no additional burden in exercising reasonable care for a social visitor such as Heins, because it had the duty to exercise reasonable care for its invitees. A patient visitor could have used the same front entrance at which Heins fell and would have been able to maintain a negligence action; however, Heins has been denied the opportunity to recover merely because of his status at the time of the fall.

Modern commercial society creates relationships between persons not contemplated by the traditional classifications. See Kermarec v. Compagnie Generale, supra. Yet we have continued to pigeonhole individuals as licensees or invitees as a convenient way to ascertain the duty owed by the landowner. For instance, in Presho v. J. M. McDonald Co., 181 Neb. 840, 151 N.W.2d 451 (1967), a customer of a retail store was injured when she entered a back room of the store with the permission of the store manager, in order to retrieve an empty box. We held the customer to be a licensee rather than an invitee because “[s]he was on an errand personal to herself, not in any way connected with the business of the defendant.” 181 Neb. at 843-44, 151 N.W.2d at 454. We recognized that while she was in the store proper, she was an invitee. However, we found her to be a licensee when she entered the back room, despite the fact that the ladies’ restroom was located in this back room area and was used by customers to the store.

The common-law status classifications should not be able to shield those who would otherwise be held to a standard of reasonable care but for the arbitrary classification of the visitor as a licensee. We find no merit in the argument that the duty of reasonable care is difficult for a fact finder to understand *761or apply, because it has been used successfully with regard to invitees and is the standard used in almost all other tort actions.

We conclude that we should eliminate the distinction between licensees and invitees by requiring a standard of reasonable care for all lawful visitors. We retain a separate classification for trespassers because we conclude that one should not owe a duty to exercise reasonable care to those not lawfully on one’s property. Adopting this rule places the focus where it should be, on the foreseeability of the injury, rather than on allowing the duty in a particular case to be determined by the status of the person who enters upon the property.

Our holding does not mean that owners and occupiers of land are now insurers of their premises, nor do we intend for them to undergo burdens in maintaining such premises. We impose upon owners and occupiers only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors. Among the factors to be considered in evaluating whether a landowner or occupier has exercised reasonable care for the protection of lawful visitors will be (1) the foreseeability or possibility of harm; (2) the purpose for which the entrant entered the premises; (3) the time, manner, and circumstances under which the entrant entered the premises; (4) the use to which the premises are put or are expected to be put; (5) the reasonableness of the inspection, repair, or warning; (6) the opportunity and ease of repair or correction or giving of the warning; and (7) the burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection.

Although we have set forth some of the factors to be considered in determining whether a landowner or occupier has exercised reasonable care for the protection of lawful visitors, it is for the fact finder to determine, on the facts of each individual case, whether or not such factors establish a breach of the duty of reasonable care.

CONCLUSION

We determine that the invitee-licensee distinction should be abandoned and the new rule applied in the instant case. *762Considering that other litigants may have relied on our previous rule and incurred time and expense in prosecuting or defending their claims, we conclude, with the exception of the instant case, that the rule announced today shall be applied only to all causes of action arising after this date. We reverse, and remand for a new trial.

Reversed and remanded for a new trial.

Fahrnbruch, J.,

dissenting.

I respectfully dissent from the majority opinion.

The majority opinion states that modern society does not contemplate such traditional classifications as invitee and licensee. However, the same majority opinion states that the majority of states have retained the common-law distinctions of invitee and licensee.

In Nebraska, we have had no problem in assigning liabilities based upon invitee and licensee status, as witnessed by the recent unanimous opinions McIntosh v. Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996), and Blackbird v. SDB Investments, 249 Neb. 13, 541 N.W.2d 25 (1995).

The majority opinion dismantles longstanding common law by eliminating the concept of licensee, thereby forcing a landowner to treat a person who is allowed to enter or remain upon premises with the same standard of care as a person who is invited onto the premises for the mutual benefit of both landowner and invitee.

Under the majority opinion, a landowner owes a duty of reasonable care to an individual who becomes injured by conducting activities on the premises without the landowner’s express permission or knowledge. From this moment on, public and private institutions, as well as residential homeowners, must be especially aware of unknown, uninvited individuals who take advantage of their land and facilities.

In McCurry v. Young Men’s Christian Assn., 210 Neb. 278, 313 N.W.2d 689 (1981), an individual brought an action against a Young Men’s Christian Association (YMCA) as a result of an injury which arose from a fall while the individual was playing basketball on an outdoor asphalt playground owned by the YMCA. The plaintiff was not a member of the *763YMCA and had not obtained any express permission to use the playground. This court held that the plaintiff was a licensee and affirmed the trial court’s directed verdict in favor of the YMCA. Under the majority’s opinion, YMCA’s and like institutions will be subject to lawsuits which hold them to a duty to treat such uninvited users of their facilities with the same standard of care as the paying members of the institution.

This court should not enact public policy which, in effect, socializes the use of privately owned property to the extent that the landowner owes the same duty to all, except trespassers, who enter the owner’s land. It is not the function of the court to create a liability where the law creates none. Acton v. Wymore School Dist. No. 114, 172 Neb. 609, 111 N.W.2d 368 (1961).

Under the majority’s opinion, a homeowner would have potential liability for any number of not only uninvited but unwanted solicitors or visitors coming to the homeowner’s door.