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.

Beals, J.

Plaintiffs instituted this action against Snohomish county, as defendant, seeking to recover damages alleged to have been suffered by them as the result of the negligence of defendant in the construction and maintenance of the elevated approach to a bridge, known as the “Bascule Bridge,” across Ebey slough. In the southwesterly approach to this bridge, there is a right angle turn towards the south, just *110easterly of the slough, and at this point the causeway or approach to the bridge is at quite an elevation above the ground level. The bridge itself is approximately eighteen feet wide; the approach, leading to the bridge proper, at the curve just to the east of the bridge, increases in width to a maximum of 30.9 feet, narrowing again to eighteen feet at the end of the turn.

At about eight o’clock in the evening of November 11,1926, plaintiffs were driving their Ford automobile toward the city of Snohomish and proceeded to cross the bridge from west to east at a low rate of speed. Plaintiff Edwin F. Davison was driving, and as the car rounded the curve to the east of the slough, he lost control, the car skidded, struck the railing on the east, or outer, edge of the approach just around the curve, broke through the railing and, with plaintiffs, fell to the ground. Both plaintiffs suffered severe and painful injuries, and the automobile was wrecked; for all of which damage plaintiffs prayed for judgment in a large amount.

Defendant answered plaintiffs’ complaint, denying all the allegations of negligence on its part, and affirmatively pleading contributory negligence on the part of plaintiffs. The action came on regularly for trial, and resulted in a verdict in plaintiffs’ favor in the sum of twenty-five hundred dollars. Defendant seasonably moved for judgment in its favor notwithstanding the verdict, or, in the alternative, for a new trial. Both of these motions were denied by the trial court, which thereupon entered judgment upon the verdict, from which judgment defendant appeals.

There is no dispute as to the reasonableness of the amount of the verdict, if appellant is liable at all, the sole question raised being the liability of the county for any damages whatsoever.

Respondents allege that appellant was negligent in *111the construction and maintenance of the approach to the bridge, in that, at the time of the accident, the railing through which respondents’ car broke was insufficient to act as a guard, that the posts which supported the same were decayed, that the floor or deck of the approach was so constructed as to slope out and down from the center of the curve to the outer edge, and that appellant, prior to the accident, had been repairing a road near the west approach of the bridge and in doing this work hauled over the bridge from the east a considerable quantity of dirt, a portion of which was scattered on and over the approach; that, on November 11, 1926, considerable rain fell, and that as a result the deck of the approach, being covered with wet dirt, became very slippery and, coupled with the other conditions alleged, constituted a menace to motor vehicle traffic.

Respondents urge that the combined effect of the different matters of which they complain produced a dangerous situation, and that the suffering of such a condition to exist constituted negligence on the part of appellant and renders appellant liable for the damages suffered by respondents.

Appellant contends that respondents failed to prove negligence on the part of appellant, and that its motion for judgment notwithstanding the verdict should have been granted. Appellant also assigns other errors; but, in view of our opinion upon the question of appellant’s alleged negligence, the other matters assigned as error need not be discussed.

It is undoubtedly the law that it is the duty of a municipality to keep its bridges in a reasonably safe condition for travel. Zolawenski v. Aberdeen, 72 Wash. 95, 129 Pac. 1090. On the other hand, a municipality is not an insurer of the safety of every one who uses its thoroughfares; nor is it required to *112keep the same in such a condition that accidents cannot possibly happen upon them. As was stated by this court in Grass v. Seattle, 100 Wash. 542, 171 Pac. 533, discussing an accident to a pedestrian which it was claimed was caused by a drop in a sidewalk ranging from two and one-half inches at one side of the walk to nothing at the other side:

“Manifestly, it seems to us, a city cannot be held negligent for suffering to remain in a sidewalk a defect so inconsequential as this one was shown to be. A city is not an insurer of the personal safety of every one who uses its public walks. It owes no duty to keep them in such repair that accidents cannot possibly happen upon them. Its duty in this respect is done when it keeps them reasonably safe for use — safe for those who use them in the exercise of ordinary care — and we cannot but conclude that this one was thus reasonably safe.”

Respondents admitted that they were thoroughly familiar with the bridge and its approaches, having driven over the same many times prior to the day of the accident, and they consequently were fully advised as to the existence and location of the curve in the approach, the width of the bridge and the approaches and the different grades therein.

As respondents rely upon three several elements, each of which they claim resulted from the negligence of appellant, all three uniting to render the bridge unsafe and to cause the accident which is the basis of this action, it is necessary to analyze these elements of alleged negligence: first, the insufficiency of the railing or guard to prevent respondents’ automobile from skidding off the approach; second, the fact that the deck of the approach, at the curve, sloped downward toward the outer edge, which had a tendency to cause the automobile to slide in that direction; and, third, the fact that dirt was scattered over the deck *113of the approach, which, being wet by the rain, caused the deck to be more slippery than it would have been had no dirt been scattered over it.

The use of the automobile as a means of transportation of passengers and freight has, during recent years, caused certain changes in the law governing the liability of municipalities in respect to the protection of their roads by railings or guards. A few years ago, when people traveled either on foot or by horse-drawn vehicles, a guard rail could, to a considerable extent, actually prevent pedestrians or animals drawing vehicles from accidentally leaving the roadbed; but, as a practical proposition, municipalities cannot be required to protect long stretches of roadway with railings or guards capable of preventing an automobile, moving at a rapid rate, from leaving the road if the car be in any way deflected from the roadway proper and propelled against the railing. As was said by this court in the case of Leber v. King County, 69 Wash. 134, 124 Pac. 397, 42 L. R. A. (N. S.) 267:

“Eoads must be built and traveled, and to hold that the public cannot open their highways until they are prepared to fence their roads with barriers strong enough to hold a team and wagon when coming in violent contact with them, the condition being the ordinary condition of the country, would be to put a burden upon the public that it could not bear. It would prohibit the building of new roads and tend to the financial ruin of the counties undertaking to maintain the old ones.”

This principle applies with special force to elevated causeways constructed of wood, such as the approach from which respondents’ automobile fell, as upon such a structure the railing can be anchored or secured only to the deck of the causeway. Upon the ground, in situations of special danger, strength can be given to a guard or railing by driving posts into the earth and *114a guard of any desired strength can be constructed in that manner; a concrete viaduct can be constructed with side walls of considerable resisting power ; but the same degree of protection cannot be expected from a guard or railing along the side of an elevated frame causeway or viaduct. Eespondents introduced some testimony to the effect that the posts which supported the railing were, to some extent, rotted. We have carefully considered this testimony, and for the purposes of this opinion assume that it was true; but we still do not think that it was sufficient to take the case to the jury upon the question of appellant’s negligence in connection with the condition of the railing at the time of the accident.

In regard to the second element of alleged negligence urged by respondents, the fact that at the curve in the approach the deck sloped slightly downward towards its outer edge, we are of the opinion that, in view of the fact that the slope was so slight as not to be noticeable to the eye, amounting to no more than a small fraction over an inch to eighteen feet horizontal measurement across the deck, or from two and three-quarters inches to one and one-eighth inches to the entire width of the deck, it is our opinion that the maintenance of the approach in this condition did not constitute such negligence on the part of appellant as would render appellant liable to respondents in this action. The supreme court of Michigan in the case of Perkins v. Delaware Township, 113 Mich. 377, 71 N. W. 643, held, as matter of law, that the maintenance of a bridge,-sixteen feet wide, which had no railings at all, one inch lower on one side than the other, was not negligence on the part of the township. While the facts of the Michigan case differ considerably from the situation now before us, the opinion is *115of value in aiding us in the determination of the ease at bar.

Referring to the third element of negligence relied upon by respondents, the fact that some dirt was scattered over the deck of the approach, and that, due to the fact that considerable rain had fallen and was still falling at the time of the accident, the wet dirt caused the deck to be unusually slippery, we are unable to find any testimony in the record which would justify the submission of this element of alleged negligence to the jury. Appellant would not be liable because of any ordinary accumulation of dirt or similar matter upon the approach, unless a dangerous condition were permitted to exist for such a period of time as would imply, in law, notice to appellant of the fact that its roadway was unsafe, and it should further appear that appellant had been negligent in not remedying the condition within a reasonable time. Respondents contend in this case that the dirt upon the roadway had been scattered by appellant’s employees within a very short time prior to the accident. Giving the testimony upon this point the construction most favorable to respondents’ contention, we feel compelled to hold that, as matter of law, there was no testimony sufficient to go to the jury upon this alleged element of appellant’s negligence.

In the case of Swain v. Spokane, 94 Wash. 616, 162 Pac. 991, 8 L. R. A. 1916D 754, we held that a municipality could not be held liable as an insurer of the tractability of every automobile driven on its streets. In that case, Chief Justice Ellis, speaking for the court, states that it appeared from the face of plaintiffs ’ complaint that, for all ordinary uses of the street, the same was in a safe condition, and that the municipality could not be held liable for injuries occasioned by the “eccentricities of an unmanageable auto*116mobile,” which constituted a contingency not reasonably to be anticipated. The cases of Leber v. King County, and Swain v. Spokane, supra, were by this court quoted with approval in the case of Culley v. King County, 101 Wash. 38, 171 Pac. 1034, in which it was held that the duty to protect a highway “must necessarily depend upon the circumstances of the particular case.”

Measured by this standard, we are of the opinion that it must be held, as matter of law, that there is no testimony in this record which shows negligence for which appellant is liable to respondents. This court has repudiated “the scintilla of evidence” doctrine, and has held that evidence sufficient to support a verdict must be substantial; Ziomko v. Puget Sound Elec. R., 112 Wash. 426, 192 Pac. 1009, and Adams v. Anderson & Middleton Lum. Co., 124 Wash. 356, 214 Pac. 835; and in our opinion this repudiated doctrine would have to be given a liberal construction to permit the verdict rendered in this case to stand.

Respondents rely upon the case of Beach v. Seattle, 85 Wash. 379,148 Pac. 39, in which this court upheld a verdict against the municipality, based upon its negligence in leaving unguarded, poorly lighted and without danger signals, á blind street end at the edge of a gulch. Examination of the opinion in this case indicates that the decision was based largely upon the failure of the city to place a red light or other danger signal at the street end, or to place lights in the vicinity which would disclose the dangerous situation. The city had also neglected to construct any barrier whatsoever which might serve as a visible warning of danger as well as an obstruction. The physical facts which resulted in injury to the plaintiff in this action constituted almost an invitation to the driver of an automobile to continue along the street which was *117broken by tbe deep gulch, there being nothing to suggest danger.

Respondents cite several cases from other jurisdictions which, while based upon different facts, contain statements which support some of the propositions urged by their counsel. On such a question as this, authorities can be found which, in part at least, seem to support almost any proposition which can seriously be urged. We believe, however, that the opinions of this court are decisive of the issues raised on this appeal.

The judgment is reversed with directions to dismiss the action.

Fullerton, C. J., Main, Askren, and Holcomb, JJ., concur.

Mr. Chief Justice Alexander

delivered the opinion of the Court.

This is a suit for damages for personal injuries. It presents the question whether one who .drives, over a bridge on a public road and thereafter discovers that such bridge, because of its ^defective condition, has broken down under the weight of his vehicle, without negligence on his part, is under any duty to give warning so as to prevent other travelers from being injured as a result of the broken bridge.

According to the testimony most favorable to the plaintiffs, when the defendant’s truck, driven by defendant’s employee, *391passed! over the bridge in question the rear wheels crushed the bridge, causing it to press down at one end below the embankment and thereby become dangerous to- traffic. A witness who was traveling in an automobile a short distance behind the truck by carefully driving was able to cross the bridge and overtake the truck a short distance down the road. He informed the driver that the truck had broken the bridge and asked if he was not going to put up warnings to prevent others from being injured. The driver said that he did not have time, and drove on. Six days later the plaintiffs, Buchanan and wife, while driving along the road, and without negligence on their part, ran onto the broken bridge, and Mrs. Buchanan was severely injured. The road was a graded county road near the village of Fordtram, in Victoria County.

It is conceded that the truck was not overloaded and that neither the defendant nor the driver of the truck was negligent in any manner which caused the bridge_to-break-down. The only negligence relied on is the failure to put up warnings to protect other travelers from being injured as a result of the broken bridge. The jury found that the defendant was negligent, and the trial court rendered judgment for the plaintiffs. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the defendant. 140 S. W. (2d) 203.

We have encountered much difficulty in deciding the question here presented. It is a well-understood rule that negligence is the doing of that which an ordinary prudent person would not have done under the same or similar circumstances, or the failure to do that which an ordinarily prudent person would have done under the same or similar circumstances. Here we are not concerned with any supposed negligence on the part of the defendant in doing something which he should not have done, for it is conceded! that he was not negligent in breaking the bridge down. If the driver of the truck was negligent at all, it was- because of his- failure to do something — to give warning of the broken bridge. Before we can determine whether he was negligent in failing to give warning, we must first decide whether he- owed the legal duty to- do so.

There are many instances in which it may be said, as a matter of law, that there is a duty to do something, and in others it may be said, as a matter of law, that there is no such duty. Using familiar illustrations, it may be said generally, on the one hand, that if a party negligently creates a dangerous- situ*392ation it then becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby. On'the other hand, it may be said generally, as a matter of law, that a mere bystander who did not create the dangerous situation is. not required to become the good Samaritan and prevent injury to others./ Under the last rule, a bystander may watch a blind man or a child walk over a precipice, and yet he is not required to give warning. He may stand on the bank of a stream and see a man drowning, and although he holds in his hand a rope that could be used to rescue the man, yet he is not required to. give assistance. He may owe a moral duty to warn the blind man or to assist the drowning man, but being a mere bystander, and in nowise responsible for the dangerous situation, he owes no legal duty to render assistance.

l"We think it may also be said that if one by his own acts, although without negligence on his part, creates a. dangerous situation in or along a public way and it reasonably appears that another in the lawful use of such way in the exercise of ordinary care for his own safety may be injured by the dangerous situation so created, the one creating the same must give warning of the danger or be responsible for the consequences.! To illustrate: One who in the exercise of a lawful right, and without negligence on his part, makes an excavation across a street or sidewalk or on his premises in close proximity to a public way, or parks a vehicle in a road, or otherwise obstructs the road with a foreign substance, is bound to give warning of the danger created thereby. Kampmann v. Rothwell, 101 Texas 535, 109 S. W. 1089; Roper v. Greenspon, 272 Mo. 288, 198 S. W. 1107; Buesching v. St. Louis Gaslight Co., 73 Mo. 219, 39 Am. Rep. 503.

Likewise, it has- been held that one who-, without negligence, strikes a trolley pole with his automobile and causes it to fall across the road is liable for failure to protect others from injury thereby. Simonsen v. Thorin, 120 Neb. 684, 234 N. W. 628, 81 A. L. R. 1000.

It will be noted, however,| that in each of the above instances the defendant by his own act created the dangerous situation. In the case at bar, it is hardly fair to say that the defendant’s agent created the dangerous, situation. The bridge was already in a defective condition.)It was insufficient in strength to carry *393a normal load. It merely gave way as the result of the usual and legitimate use of the road, it fell as a result of its own inherent defects. Defendant was merely the victim of a defective condition that already existedl.lt would be carrying the matter too far to say that one must give notice of every known defect in a road naturally resulting from his normal and legitimate use thereof. To so hold would make the use of the highways too hazardous from the standpoint of public liability.

In the case of Grapotte v. Adams, 130 Texas 587, 111 S. W. (2d) 690, this Court had before it a case in which the defendant’s cars and those of his customers in the usual and normal use of a driveway over a sidewalk in entering defendant’s garage had worn a hole in the sidewalk, which resulted in an injury to the plaintiff while she was using the sidewalk as a pedestrian. This Court held that the defendant as the lessee of the garage abutting upon the sidewalk, who under the law was not required to keep the sidewalk in repair, was not liable to the injured pedestrian where the hole in the sidewalk had been made dangerous by the lessee and his customers as the natural result of the normal and lawful use of the driveway as a means of access to the garage.

After a most careful consideration, we have concluded that the Court of Civil Appeals was correct in holding that the defendant and his employee were under no duty to give warning of the defect in the bridge.

The judgment of the Court of Civil Appeals, reversing the judgment of the trial court and réndlering judgment for the defendant, is affirmed.

Opinion delivered February 4, 1942.

Rehearing overruled March 4, 1942.

Troland, J.

The complaint alleges that James Wells was the owner of a golf club and that he left it for some time lying on the ground in the backyard of his home. That thereafter his son, the defendant James Wells, Jr., aged eleven years, while playing in the yard with the plaintiff, Judith Lubitz, aged nine years, picked up the golf club and proceeded to swing at a stone lying on the ground. In swinging the golf club, James Wells, Jr., caused the club to strike the plaintiff about the jaw and chin.

Negligence alleged against the young Wells boy is that he failed to warn his little playmate of his intention to swing the club and that he did swing the club when he knew she was in a position of danger.

In an attempt to hold the boy’s father, James Wells, liable for his son’s action, it is alleged that James Wells was negligent because although he knew the golf club was on the ground in his backyard and that his children would play with it, and that although he knew or “should have known” that *323the negligent nse of the golf club by children would cause injury to a child, he neglected to remove the golf club from the backyard or to caution James Wells, Jr., against the use of the same.

The demurrer challenges the sufficiency of the allegations of the complaint to state a cause of action or to support a judgment against the father, James Wells.

It would hardly be good sense to hold that this golf club is so obviously and intrinsically dangerous that it is negligence to leave it lying on the ground in the yard. The father cannot be held liable on the allegations of this complaint. Goldberger v. David Roberts Corporation, 139 Conn. 629; Wood v. O’Neil, 90 Conn. 497-500.

The demurrer is sustained.

LABORDE, Judge.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When cross examined however, Jacobson testified:

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

A. Yes I do.

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

A. Yes I do.

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

A. Yes.

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

A. Right.

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

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

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

A. With instruction, yes.

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

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

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

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

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

AFFIRMED.

Uttek, C.J.

An action seeking damages for personal injuries was brought on behalf of Kelly Robinson who lost full use of a thumb in a snowmobile accident when she was 11 years of age. The petitioner, Billy Anderson, 13 years of age at the time of the accident, was the driver of the snowmobile. After a jury verdict in favor of Anderson, the trial court ordered a new trial.

The single issue on appeal is whether a minor operating a snowmobile is to be held to an adult standard of care. The trial court failed to instruct the jury as to that standard and ordered a new trial because it believed the jury should have been so instructed. We agree and affirm the order granting a new trial.

The trial court instructed the jury under WPI 10.05 that:

In considering the claimed negligence of a child, you are instructed that it is the duty of a child to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under the same or similar circumstances.

Respondent properly excepted to the giving of this instruction and to the court's failure to give an adult standard of care.

The question of what standard of care should apply to acts of children has a long historical background. Traditionally, a flexible standard of care has been used to determine if children's actions were negligent. Under some circumstances, however, courts have developed a rationale for applying an adult standard.

In the courts' search for a uniform standard of behavior to use in determining whether or not a person's conduct has fallen below minimal acceptable standards, the law has developed a fictitious person, the "reasonable man of ordinary prudence." That term was first used in Vaughan v. Menlove, 132 Eng. Rep. 490 (1837).

*412Exceptions to the reasonable person standard developed when the individual whose conduct was alleged to have been negligent suffered from some physical impairment, such as blindness, deafness, or lameness. Courts also found it necessary, as a practical matter, to depart considerably from the objective standard when dealing with children's behavior. Children are traditionally encouraged to pursue childhood activities without the same burdens and responsibilities with which adults must contend. See Bahr, Tort Law and the Games Kids Play, 23 S.D.L. Rev. 275 (1978). As a result, courts evolved a special standard of care to measure a child's negligence in a particular situation.

In Roth v. Union Depot Co., 13 Wash. 525, 43 P. 641 (1896), Washington joined "the overwhelming weight of authority" in distinguishing between the capacity of a child and that of an adult. As the court then stated, at page 544:

[I]t would be a monstrous doctrine to hold that a child of inexperience — and experience can come only with years — should be held to the same degree of care in avoiding danger as a person of mature years and accumulated experience.

The court went on to hold, at page 545:

The care or caution required is according to the capacity of the child, and this is to be determined ordinarily by the age of the child.

". . .a child is held . . . only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age."

The current law in this state is fairly reflected in WPI 10.05, given in this case. In the past we have always compared a child's conduct to that expected of a reasonably careful child of the same age, intelligence, maturity, training and experience. This case is the first to consider the question of a child's liability for injuries sustained as a result of his or her operation of a motorized vehicle or participation in an inherently dangerous activity.

Courts in other jurisdictions have created an excep*413tion to the special child standard because of the apparent injustice that would occur if a child who caused injury while engaged in certain dangerous activities were permitted to defend himself by saying that other children similarly situated would not have exercised a degree of care higher than his, and he is, therefore, not liable for his tort. Some courts have couched the exception in terms of children engaging in an activity which is normally one for adults only. See, e.g., Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859, 97 A.L.R.2d 866 (1961) (operation of a motorboat). We believe a better rationale is that when the activity a child engages in is inherently dangerous, as is the operation of powerful mechanized vehicles, the child should be held to an adult standard of care.

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

Other courts adopting the adult standard of care for children engaged in adult activities have emphasized the hazards to the public if the rule is otherwise. We agree with the Minnesota Supreme Court's language in its decision in Dellwo v. Pearson, supra at 457-58:

Certainly in the circumstances of modern life, where vehicles moved by powerful motors are readily available and frequently operated by immature individuals, we should be skeptical of a rule that would allow motor vehicles to be operated to the hazard of the public with less than the normal minimum degree of care and competence.

*414 Dellwo applied the adult standard to a 12-year-old defendant operating a motorboat. Other jurisdictions have applied the adult standard to minors engaged in analogous activities. Goodfellow v. Coggburn, 98 Idaho 202, 203-04, 560 P.2d 873 (1977) (minor operating tractor); Williams v. Esaw, 214 Kan. 658, 668, 522 P.2d 950 (1974) (minor operating motorcycle); Perricone v. DiBartolo, 14 Ill. App. 3d 514, 520, 302 N.E.2d 637 (1973) (minor operating gasoline-powered minibike); Krahn v. LaMeres, 483 P.2d 522, 525-26 (Wyo. 1971) (minor operating automobile). The holding of minors to an adult standard of care when they operate motorized vehicles is gaining approval from an increasing number of courts and commentators. See generally Comment, Capacity of Minors to be Chargeable with Negligence and Their Standard of Care, 57 Neb. L. Rev. 763, 770-71 (1978); Comment, Recommended: An Objective Standard of Care for Minors in Nebraska, 46 Neb. L. Rev. 699, 703-05 (1967).

The operation of a snowmobile likewise requires adult care and competence. Currently 2.2 million snowmobiles are in operation in the United States. 9 BNA Envir. Rptr. 876 [1978 Current Developments]. Studies show that collisions and other snowmobile accidents claim hundreds of casualties each year and that the incidence of accidents is particularly high among inexperienced operators. See Note, Snowmobiles — A Legislative Program, 1972 Wis. L. Rev. 477, 489 n.58.

At the time of the accident, the 13-year-old petitioner had operated snowmobiles for about 2 years. When the injury occurred, petitioner was operating a 30-horsepower snowmobile at speeds of 10 to 20 miles per hour. The record indicates that the machine itself was capable of 65 miles per hour. Because petitioner was operating a powerful motorized vehicle, he should be held to the standard of care ánd conduct expected of an adult.

*415The order granting a new trial is affirmed.

Rosellini, Stafford, Wright, Brachtenbach, Horowitz, Dolliver, and Hicks, JJ., and Ryan, J. Pro Tern., concur.

MORRIS, Chief Judge.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New trial.

Judges MARTIN (Harry C.) and CARLTON concur.

Opinion by Judge KOZINSKI.

KOZINSKI, Circuit Judge.

We are called upon to determine whether United Airlines took adequate measures to deal with that elementary notion of physics— what goes up, must come down. For, while the skies are friendly enough, the ground can be a mighty dangerous place when heavy objects tumble from overhead compartments.

I

During the mad scramble that usually follows hard upon an airplane’s arrival at the gate, a briefcase fell from an overhead compartment and seriously injured plaintiff Billie Jean Andrews. No one knows who opened the compartment or what caused the briefcase to fall, and Andrews doesn’t claim that airline personnel were involved in stowing the object or opening the bin. Her claim, rather, is that the injury was foreseeable and the airline didn’t prevent it.

The district court dismissed the suit on summary judgment, and we review de novo. Dorsey v. National Enquirer, Inc., 973 F.2d 1431, 1434 (9th Cir.1992). This is a diversity action brought in California, whose tort law applies. Id.

II

The parties agree that United Airlines is a common carrier and as such “owe[s] both a duty of utmost care and the vigilance of a very cautious person towards [its] passengers.” Acosta v. Southern Cal. Rapid Transit Dist., 2 Cal.3d 19, 27, 84 Cal.Rptr. 184, 465 P.2d 72 (1970); see Cal. Civil Code § 2100 (West 1985); United Air Lines, Inc. v. Wiener, 335 F.2d 379, 402 (9th Cir.1964). Though United is “responsible for any, even the slightest, negligence and [is] required to do all that human care, vigilance, and foresight reasonably can do under all the circumstances,” Acosta, 2 Cal.3d at 27, 84 Cal.Rptr. 184, 465 P.2d 72, it is not an insurer of its passengers’ safety, Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal.3d 780, 785, 221 Cal.Rptr. 840, 710 P.2d 907 (1985). “[T]he degree of care and diligence which [it] must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of [its] business.... ” Id.

To show that United did not satisfy its duty of care toward its passengers, Ms. Andrews presented the testimony of two witnesses. The first was Janice Northcott, United’s Manager of Inflight Safety, who disclosed that in 1987 the airline had received 135 reports of items falling from overhead bins. As a result of these incidents, Ms. Northcott testified, United decided to add a warning to its arrival announcements, to wit, that items stored overhead might have shifted during flight and passengers should use caution in opening the bins. ER 10. This *41announcement later became the industry standard. ER 81.

Ms. Andrews’s second witness was safety and human factors expert Dr. David Thompson, who testified that United’s announcement was ineffective because passengers opening overhead bins couldn’t see objects poised to fall until the bins were opened, by which time it was too late. Dr. Thompson also testified that United could have taken additional steps to prevent the hazard, such as retrofitting its overhead bins with baggage nets, as some airlines had already done, ER 53,1 or by requiring passengers to store only lightweight items overhead, ER 54.2

United argues that Andrews preseñted too little proof to satisfy her burden under Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). One hundred thirty-five reported incidents, United points out, are trivial when spread over the millions of passengers travelling on its 175,000 flights every year. ER 11. Even that number overstates the problem, according to United, because it includes events where passengers merely observed items falling from overhead bins but no one was struck or injured. ER 80.3 Indeed, United sees the low incidence of injuries as incontrovertible proof that the safety measures suggested by plaintiffs expert would not merit the additional cost and inconvenience to airline passengers.

Ill

It is a close question, but we conclude that plaintiff has made a sufficient case to overcome summary judgment. United is hard-pressed to dispute that its passengers are subject to a hazard from objects falling out of overhead bins, considering the warning its flight crews give hundreds of times each day. The case then turns on whether the hazard is serious enough to warrant more than a warning. Given the heightened duty of a common carrier, Acosta, 2 Cal.3d at 27, 84 Cal.Rptr. 184, 465 P.2d 72, even a small risk of serious injury to passengers may form the basis of liability if that risk could be eliminated “consistent with the character and mode of [airline travel] and the practical operation of-[that] business. . . .” Lopez, 40 Cal.3d at 785, 221 Cal.Rptr. 840, 710 P.2d 907. United has demonstrated neither that retrofitting overhead bins with netting (or other means) would be prohibitively expensive, nor that such steps would grossly interfere "with the convenience of its passengers. Thus, a jury could find United has failed to do “all that human care, vigilance, and foresight reasonably can do under all the circumstances.” Acosta, 2 Cal.3d at 27, 84 Cal. Rptr. 184, 465 P.2d 72.

The reality, with which airline passengers are only too familiar, is that airline travel has changed significantly in recent years. As harried travelers try to avoid the agonizing ritual of checked baggage, they hand-carry more and larger items — computers, musical instruments, an occasional deceased relative. See Jo Beth McDaniel, Final Call for Carry-On Cargo, Travel Weekly, Feb. 28, 1988, at 22; Valarie Basheda, Airline Sued Over Fallen Luggage Cart, Gannett News Serv., Dec. 3, 1992. The airlines have coped with this trend, but perhaps not well enough. Given its awareness of the hazard, United may not have done everything technology permits and prudence dictates to eliminate it. See Treadwell v. Whittier, 80 Cal. 574, 600, 22 P. 266 (1889) (“common carriers ... must keep pace with science, art, and modern im*42provement”); Valente v. Sierra Ry., 151 Cal. 534, 543, 91 P. 481 (1907) (common carriers must use the best precautions in practical use “known to any company exercising the utmost care and diligence in keeping abreast with modern improvement in ... such precautions”).

Jurors, many of whom will have been airline passengers, will be well equipped to decide whether United had a duty to do more than warn passengers about the possibility of falling baggage. A reasonable jury might conclude United should have done more; it might also find that United did enough. Either decision would be rational on the record presented to the district court which, of course, means summary judgment was not appropriate.

REVERSED AND REMANDED.

MR. JUSTICE RYAN

delivered the opinion of the court:

Plaintiff’s complaint was dismissed on motion of the defendants by the circuit court of Cook County for failure to state a cause of action. The appellate court reversed and remanded the cause to the circuit court. (8 Ill. App. 3d 140.) We granted leave to appeal.

This is a wrongful death action against Racine Currency Exchange and Blanche Murphy to recover damages for the death of plaintiff’s decedent during an attempted armed robbery. The facts surrounding that event, as alleged in the complaint and admitted by defendants’ motion, are: The plaintiff’s husband, John Boyd, was present in the Racine Currency Exchange on April 27, 1970, for the purpose of transacting business. While he was there, an armed robber entered and placed a pistol to his head and told Blanche Murphy, the teller, to give him the money or open the door or he would kill Boyd. Blanche Murphy was at that time located behind a bulletproof glass window and partition. She did not comply with the demand but instead fell to the floor. The robber then shot Boyd in the head and killed him.

Plaintiff alleges several acts of negligence by the Racine Currency Exchange and Blanche Murphy. Count I alleges that the defendants owed Boyd, a business invitee, the duty to exercise reasonable care for his safety and that they breached this duty when they refused to accede to the robber’s demands. Count I also alleges that defendants acted negligently in adopting a policy, knowledge of which was deliberately withheld from their customers, according *97to which their money was to be protected at all costs, including the safety and the lives of the customers.

In count II the plaintiff alleges that the Currency Exchange was negligent in failing to instruct its employees regarding the course of conduct which would be necessary under the circumstances of this case to prevent exposing customers to unreasonable risks of harm. Count II further alleges that the Currency Exchange was negligent in employing a person who was incompetent to fulfill the responsibilities of her position. Negligence is also alleged in the failure to furnish guidelines of how to act in case of armed robbery, and alternatively that it was negligent in failing to disclose to its customers its policy of preserving its monies at all costs.

It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. (Hamlin’s Wizard Oil Co. v. United States Express Co., 265 Ill. 156.) The plaintiff contends that a business proprietor has a duty to his invitees to honor criminal demands when failure to do so would subject the invitees to an unreasonable risk. It is claimed that this duty arises from the relationship between a landowner and a business invitee.

It is the general rule in Illinois and other jurisdictions that a person has no duty to anticipate the criminal acts of third parties. (Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 33.) An exception to this rule exists, however, when criminal acts should reasonably have been foreseen. (Neering v. Illinois Central R.R. Co., 383 Ill. 366.) Neering, and many of the other cases cited by the parties, involved the question of whether facts existed which should have alerted the defendant to a risk of harm to his invitees by' criminals. (See O’Brien v. Colonial Village, Inc., 119 Ill. App. 2d 105; Stelloh v. Cottage 83, 52 Ill. App. 2d 168; Altepeter v. Virgil State Bank, 345 Ill. App. 585; Nigido v. First National Bank, 264 Md. 702, 288 A.2d 127.) These cases are of little help here since our *98case presents a question of whether the defendant who is faced with an imminent criminal demand incurs liability by resisting, not whether he is negligent in failing to take precautions against a possible future crime.

Also of little assistance is Sinn v. Farmers Deposit Savings Bank, 300 Pa. 85, 150 A. 163. In that case recovery for the plaintiff, who was injured when a bank robber detonated dynamite within the bank, was upheld. The plaintiff alleged that had the bank warned him that a bank robbery was in progress, as they had the opportunity to do, he could have escaped unharmed. The plaintiff’s intestate in our case, however, was obviously on notice that a robbery was in progress, and plaintiff does not predicate her claim on the absence of warning.

The Restatement of Torts does not consider the specific issue before us. The Restatement does set forth the principle that a person defending himself or his property may be liable for harm to third persons if his acts create an unreasonable risk of harm to such persons. (Restatement (Second) of Torts, secs. 75 and 83.) However, these sections refer to situations in which the harm is caused directly by a person resisting, not by the criminal, such as where a shot fired at a criminal hits a third person.

We are aware of only two cases which have discussed issues similar to the one with which we are faced here — whether a person injured during the resistance to a crime is entitled to recover from the person who offered the resistance. In Genovay v. Fox, 50 N.J. Super. 538, 143 A.2d 229, rev’d on other grounds, 29 N.J. 436, 149 A.2d 212, a plaintiff who was shot and wounded during the robbery of a bowling alley bar claimed that the proprietor was liable because instead of complying with the criminal demand he stalled the robber and induced resistance by those patrons present. The plaintiff was shot when several patrons attempted to disarm the bandit. The court there balanced the interest of the proprietor in resisting the robbery against the interest of the patrons in not being *99exposed to bodily harm and held that the complaint stated a cause of action. The court stated: “The value of human life and of the interest of the individual in freedom from serious bodily injury weigh sufficiently heavily in the judicial scales to preclude a determination as a matter of law that they may be disregarded simply because the defendant’s activity serves to frustrate the successful accomplishment of a felonious act and to save his property from loss.” (50 N.J. Super, at 558, 143 A.2d at 239-40.) The court held that under the circumstances it was for the jury to determine whether defendant’s conduct was reasonable.

In Noll v. Marian, 347 Pa. 213, 32 A.2d 18, the court held that no cause of action existed. The plaintiff was present in a bank when an armed robber entered and announced “It’s a holdup. Nobody should move.” The bank teller, instead of obeying this order, dropped down out of sight. The gunman then opened fire and wounded the plaintiff. The court held that even though the plaintiff might not have been injured if the teller had stood still, the teller did not act negligently in attempting to save himself and his employer’s property.

In Lance v. Senior, 36 Ill.2d 516, this court noted that foreseeability alone does not result in the imposition of a duty. “The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing the burden upon the defendant, must also be taken into account.” 36 Ill.2d at 518.

In the present case an analysis of those factors leads to the conclusion that no duty to accede to criminal demands should be imposed. The presence of guards and protective devices do not prevent armed robberies. The presence of armed guards would not have prevented the criminal in this case from either seizing the deceased and using him as a hostage or putting the gun to his head. Apparently nothing would have prevented the injury to the decedent except a complete acquiescence in the robber’s demand, *100and whether acquiescence would have spared the decedent is, at best, speculative. We must also note that the demand of the criminal in this case was to give him the money or open the door. A compliance with this alternate demand would have, in turn, exposed the defendant Murphy to danger of bodily harm.

If a duty is imposed on the Currency Exchange to comply with such a demand the same would only inure to the benefit of the criminal without affording the desired degree of assurance that compliance with the demand will reduce the risk to the invitee. In fact, the consequence of such a holding may well be to encourage the use of hostages for such purposes, thereby generally increasing the risk to invitees upon business premises. If a duty to comply exists, the occupier of the premises would have little choice in determining whether to comply with the criminal demand and surrender the money or to refuse the demand and be held liable in a civil action for damages brought by or on behalf of the hostage. The existence of this dilemma and knowledge of it by those who are disposed to commit such crimes will only grant to them additional leverage to enforce their criminal demands. The only persons who will clearly benefit from the imposition of such a duty are the criminals. In this particular case the result may appear to be harsh and unjust, but, for the protection of future business invitees, we cannot afford to extend to the criminal another weapon in his arsenal.

For these reasons we hold that the defendants did not owe to the invitee Boyd a duty to comply with the demand of the criminal.

Accordingly, the judgment of the appellate court will be reversed, and the judgment of the circuit court of Cook County will be affirmed. .

Appellate court reversed; circuit court affirmed.

*101MR. JUSTICE GOLDENHERSH,

dissenting:

I dissent. The majority opinion fails to take into account the principles of law clearly enunciated in Restatement (Second) of Torts, secs. 302B and 449, and on the basis of pure conjecture concludes that nothing that defendant’s employee could have done would have saved the deceased from death or injury. The majority’s polemic on the subject of the hazards which would be created by an application of established legal principles to this case finds little support in logic and none whatsoever in the legal authorities.

This case comes to us only on the pleadings and I agree with the appellate court that “Whether what defendants did or did not do proximately caused the injury that befell plaintiff’s decedent, whether Blanche Murphy had the time so she could, under the circumstances alleged, exercise the kind of judgment expected of a person of ordinary prudence, were questions of fact which, from all the evidence, must be decided by a trier of the facts, judge or jury.” I would affirm the judgment of the appellate court.

*345LINDE, J.

Plaintiff sued for damages for injuries she sustained when her car, on a dark and windy January evening, struck a tree which shortly before had splintered and fallen across a Clackamas County road. The trial court directed verdicts for defendant Clackamas County, the owner of the right-of-way on which the tree was located, and Marion Olsen, the adjoining landowner who was alleged to be in possession of the same location. Plaintiff appeals from the judgment entered on the directed verdict for Olsen.

The parties disagree about the measure of responsibility of one in possession or control of land near a public road for injuries to travelers caused by such trees. Defendant maintains that he had no duty of reasonable care with respect to the tree involved in this case. Plaintiff assigns as error, first, that the trial court directed a verdict for defendant on this issue, and second, that the court excluded testimony by local witnesses which was offered to show that defendant should have recognized the danger that the tree might fall onto the road.

This court has not previously had occasion to consider the question of liability for injuries caused by the fall of roadside trees. However, such injuries have long been common enough to develop lines of cases in other jurisdictions.1 Generally, a possessor’s duty of reasonable care toward the traveling public will arise from his actual knowledge of the dangerous condition of the tree.2 The more difficult question is whether he *346will be held liable if he should have known of the danger, and specifically, under what conditions he has a duty to inspect his trees to discover a latent danger.

In assessing conditions under which they have denied such a duty as a matter of law, courts have often been frank to base their conclusion on the impraeticality or economic cost of obligatory inspection in relation to the probability of harm from falling trees or limbs. Half a century ago, the Supreme Court of Minnesota rejected such an affirmative duty in these terms:

Many of our public highways pass through timbered country, and upon the prairies owners have been encouraged to plant trees. It will add a vexy heavy burden on the servient fee owner if he must exercise the supervision and care for the dominant easement in this respect. If such a duty is laid upon him he becomes liable, in case of a failure, to respond in damages that may sweep away the value of his whole farm by some unfortunate accident like the present. Severe wind storms are not rare in this state, and a jury influenced by sympathy for the injured paxty are [sic\ so prone to find the accident the result of negligence upon the slightest pretext.

Zacharias v. Nesbitt, 150 Minn 369, 372-373, 185 NW 295 (1921). Similarly, in a case from West Virginia, a federal court of appeals thought that to allow liability upon an allegation that defendant should have known of the dangerous condition of the tree "will impose a new and unusual burden upon the owners of forest lands,” unjustified by the danger to the public that might result from the failure to inspect. "This danger, in the case of rural lands upon a country road, is, to say the most, a very remote one; and in view of the burden which the requirement of inspection would impose, it *347is too remote, we think, to justify a holding that the landowner is charged with such a duty.” Chambers v. Whelen, 44 F2d 340, 341 (4th Cir 1930).

About the same time, however, the federal court in another circuit let a jury find liability when the latent decay of the falling tree "was known or by the exercise of ordinary care could have been known” by the landowner, where the tree stood in what the court called "a tract of suburban forest” two miles outside a city. Brandywine Hundred Realty Co. v. Cotillo, 55 F2d 231, 231 (3d Cir 1931), cert. denied, 285 US 555 (1932); Annotation, 11 ALR2d 626, 629 (1950). It was only to be expected that the balance of considerations quoted above would shift with increasing suburban and interurban automobile traffic on the one hand and, on the other hand, an increasing readiness to place on owners of land as much as other enterprises the cost of risks associated with their activities. The shift appears between section 363 of the 1934 Restatement of Torts, which qualified the general rule of nonliability to persons outside the land for natural conditions on the land only by a caveat "expressing no opinion” as to roadside trees, and the 1965 Restatement of Torts 2d, which recognizes a duty to "exercise reasonable care” on the possessor in an "urban area” and reduces the caveat of "no opinion” only to "rural” areas.3

In a federal tort claim arising in Oregon 20 years ago, the United States District Court had to anticipate what this court would hold when the falling tree was one of many thousands lining the roads through the *348Willamette National Forest and the road across which it fell was relatively lightly traveled. Judge Solomon concluded that on those facts, Oregon would not apply the duty of care stated in Brandywine Hundred Realty Co. v. Cotillo, supra, but rather Judge Parker’s reasoning in Chambers v. Whelen, quoted above. O'Brien v. United States, 166 F Supp 231 (D Or 1958). The case was tried without a jury, and the Ninth Circuit on appeal found it unclear whether the district court had held as a matter of law that the abutting landowner owed no duty of reasonable care with respect to roadside trees or as a matter of fact that this duty had not been breached. The court of appeals thought that the second view of the trial court’s decision was more probable and sustained it as correct on the facts. But even if the decision stated a rule of law, the court of appeals thought that the statement could be affirmed insofar as it was narrowly limited to "the duty of the owner of forest land in a sparsely-settled area adjoining a little-used highway.” O'Brien v. United States, 275 F2d 696, 698 (9th Cir 1960).

We think OBrien was right in stating that, except for extreme situations, the question of the landowner’s or possessor’s attention to the condition of his roadside trees under a general standard of "reasonable care to prevent an unreasonable risk of harm” is to be decided as a question of fact upon the circumstances of the individual case. The extent of his responsibility either to inspect his trees or only to act on actual knowledge of potential danger cannot be defined simply by categorizing his land as "urban” or "rural.” Surely it is not a matter of zoning or of city boundaries but of actual conditions. No doubt a factfinder will expect more attentiveness of the owner of an ornamental tree on a busy sidewalk (see, e.g., Turner v. Ridley, 144 A2d 269 (DC 1958); Plesko v. City of Milwaukee, 19 Wis 2d 210, 120 NW2d 130 (1963)) than of the United States Forest Service in the OBrien situation, but the great variety of intermediate patterns of land use, road use, traffic density, and preservation of natural stands of *349trees in urban and suburban settings prevents a simple "urban-rural” classification. See Hensley v. Montgomery County, 25 Md App 361, 367-370, 334 A2d 542, 546-547 (1975). Moreover, other factors than the character of the land and of the road are relevant in deciding whether a particular defendant was in a position where he should have given reasonable attention to the potential dangerousness of a roadside tree.

Even in a rural setting, for instance, it can make a difference whether the defendant or others for whom he is responsible are engaged in activities that involve the trees at the location in question or that alter the natural conditions at this location. Decisions like Chambers v. Whelen and O’Brien, supra, stress the burden and the impracticality of a general duty to inspect standing trees when imposed on owners of large tracts of rural land simply as landowners. As a Maryland court recently summarized its review of the cases, the onus on a homeowner of inspecting a few trees in his yard is modest, but the "practical difficulty of continuously examining each tree in the untold number of acres of forests” or in "sprawling tracts of woodland adjacent to or through which a road has been built [can be] so potentially onerous as to make property ownership an untenable burden. This would be particularly true for an absentee landowner.” Hensley v. Montgomery County, supra, 25 Md App at 366-367, 334 A2d at 545. It is less obviously true, however, for one who is engaged in logging or in actively developing the land. Thus our neighboring State of Washington, where standing timber plays much the same role as in Oregon, distinguished O’Brien, surpa, and permitted a plaintiff injured by a fallen tree on a "remote” road to go to the jury against a bank as owner of forest land because the land was not in its natural condition but had recently been logged. Albin v. National Bank of Commerce, 60 Wash 2d 745, 375 P2d 487 (1962). Consequently, we examine the present case with these factors in mind.

*350In this case, the road in question was a two-lane blacktop highway serving a number of communities in Clackamas County. There was testimony that it was used by an average 790 vehicles a day; in other words, a fallen tree might encounter a vehicle within an average of about two minutes, depending on the time of day. Defendant had purchased the land adjoining the road in 1973 for logging purposes, and during the five or six weeks before the accident he had logged about half the timber on his land. This included the trees adjacent to the tree on the county’s right-of-way that eventually fell onto the road. Under these circumstances, we conclude, as did the Washington Court in Albin, supra, that it would be a jury question whether defendant had taken reasonable care to inform himself of the condition of this tree, provided there was evidence that an inspection would have disclosed its hazardous condition.4

The evidence is that after the tree broke and fell onto the road, the center of the tree at the point of the break proved to be decayed. However, the decay did not extend through the bark, or even to the surface below the bark except perhaps in a few places. Only by chopping or boring into the trunk of the tree would there have been a substantial chance of discovering the decay. Thus the question is not so much whether defendant had some responsibility to give his attention to the safety of this tree left behind by his logging operations as, rather, how far that responsibility extends.

*351There was no evidence to suggest that chopping or drilling into the trunk would have been a normal or expected way to examine a standing tree in the absence of external indications that it might not be structurally sound. The only reference to such a procedure came from defendant Olsen himself, when called by plaintiff as an adverse witness. Defendant had testified that the tree, located on county property immediately adjacent to defendant’s land, was about 60 years old and approximately 85 feet tall. It was divided above ground into two separate trunks, "club-by” or short, and leaned a few degrees toward the road. Defendant also testified that a double-trunk tree might rot from water seeping into the tree where the trunks joined, but that he did not observe signs of such rot. His testimony continued:

Q Did you ever examine the tree very closely?

A Yes.

Q When?

A Well, I put a road right past it off the highway and you naturally, if you are in the business, you look at trees and you are always aware of something that might be dangerous or so forth.

Q So you would have — as a logger, you would want to know the condition of .the trees; is that correct?

A That’s correct, yes.

Q All right. How would someone test a tree for rot that is not clearly visible?

A Well, you either have to drill into it or chop into it.

Q Now, by chopping into it you could just chop off the bark, perhaps? Would that be one way of doing it?

A You couldn’t see by chopping the bark off.

Q What if the rot were just beneath the bark?

A If it was just beneath the bark, you could see it.

Q Okay. So you could check for rot by drilling it or chopping it or peeling off the bark if the rot were that close to the surface; is that true?

A That’s correct if the rot were on the surface, which it wasn’t on this tree.

*352Q Not on the surface, but close to the bark; is that correct?

A On this tree it wasn’t close to the surface.

Q You are saying the rot was centered in the tree?

A It was in the center of the tree, yes.

Q And didn’t go beyond the center of the tree?

A That’s correct.

There was no other testimony to suggest that the tree showed exterior signs of possible decay or that chopping or drilling into the trunk would be a common and reasonable practice for inspecting trees generally. Plaintiff called a number of neighborhood witnesses to testify that the tree, left isolated by the logging, swayed violently in strong winds, and he assigns as error the court’s exclusion of their opinion testimony that the tree looked as if it might be blown over. In the context, it is clear that this testimony was offered to establish generally that defendant "should have known” of a possible risk requiring him to make an inspection, not to indicate a particular risk of internal decay.5 We need not pursue this assignment of error, since we have already recognized plaintiff’s general proposition that, under the circumstances, the defendant was not free from any duty of reasonable care to consider the safety of this tree. But the record does not show that the excluded testimony would have been of help on the further issue whether a reasonble examination should have gone so far as to chop or drill into the trunk of the tree. The imposition of such a duty in the setting of this case requires more than the general observation that a tree sways in the wind, especially when it would involve cutting into the tree of an adjoining landowner for which this defendant may be responsible, if at all, only by virtue of his activities on the land and his logging'of the adjacent trees. It *353requires some evidence either that the defendant should have been on notice of possible decay in this tree, or that cutting through the bark to the trunk is a common and ordinary method of examining trees generally. In the absence of such evidence, it was not error to direct a verdict for the defendant.

Affirmed.

Wolcott, Judge.

The plaintiff brings suit for personal injuries received when struck in the back by a baseball while walking on East Thirtieth Street in the City of Wilmington, past the ball park of the defendant.

The defendant is the owner of land at the southwest corner of the intersection of Thirtieth Street and Governor Printz Bbúle-.vard in the City of Wilmington on which is located the ball park in question. The business of the defendant is the maintenance and renting of the ball park and its facilities, and has been carried on by the defendant for over eight years.

The defendant leases the facilities of its park to ball clubs and, in particular, leases the facilities as its home field to the Wilmington Blue Rocks, a member team of the Inter-State League. When-the Wilmington Blue Rocks are not playing at their home field, the defendant leases the facilities of the park for other athletic exhibitions and, on the night when the injury took place, the park was leased for a game being played between two Negro professional teams from Philadelphia.

*292The park of the defendant is laid out so that the left field foul line runs parallel to Thirtieth Street approximately 160 feet'from that street. Parallel to the left field foul line and to Thirtieth Street is a fence which is 40 feet from the sidewalk running along the southerly side of Thirtieth Street. The grandstand behind the home plate and extending along the foul line between home plate and third base is 40 feet in height with a wire screen erected on its top 10 feet in height. At the easterly end of the grandstand are 20-foot high bleacher stands running parallel to the left field foul line and along the left field fence. Commencing at the end of the bleachers, the fence running parallel to Thirtieth Street is 10 feet in height. The distance from home plate to the beginning of the 10-foot fence is approximately 150 feet.

On the night in question, the plaintiff was walking on the sidewalk on the southerly side of Thirtieth Street in an easterly direction with her daughter-in-law and grandson, aged 10 years. When she reached a point on the sidewalk roughly opposite the point where the bleachers end and the 10-foot fence begins, she was struck in the back by a baseball. The plaintiff testified that she did not see the'ball before it struck her. The plaintiff’s daughter-in-law, who was walking with the plaintiff holding her right arm, testified that she did not see the ball prior to the time it struck the plaintiff but that, immediately after the plaintiff was struck, she heard the announcer over the loud speaker system within the park announce, “Foul ball.” The plaintiff’s grandson testified that he was walking on the right of the plaintiff’s daughter-in-law and saw the ball which struck the plaintiff come over the bleachers out of the ball park. The defendant did not seriously contest this testimony, and I am satisfied that the plaintiff was struck by a fast-moving baseball which came over the fence out of the ball park.

The plaintiff called as witnesses a radio sports announcer, a *293newspaper sports reporter and a young boy who had many times waitéd on Thirtieth Street for baseballs to come over the fence of the defendant’s park. From the testimony of these witnesses, which is not substantially contradicted by the defendant, it appears that in the course of an average ball game, 16 to 18 foul balls come from inside the park into Thirtieth Street and, of them, an average of 2 or 3 foul balls come from within the park over the 10-foot fence and into the area along Thirtieth Street through which the plaintiff was passing at the time of the injury. The manager of the defendant testified that, on an average, 68 baseball games were played at Wilmington Park during the baseball season.

The plaintiff does not contend that the defendant is an insurer of persons lawfully using the highways and sidewalks adjacent to its ball park, but does contend that the defendant, as a landowner, has the duty to exercise reasonable care in the use of its land so as to prevent injury to travelers lawfully using the highways adjacent thereto. The plaintiff contends that the defendant had notice of the passage of baseballs outside of its park into East Thirtieth Street to the danger of persons using that public street, and that the failure of the defendant to take reasonable precautions to safeguard the public was negligence.

The defendant, on the other hand, contends that the plaintiff has wholly failed to establish any negligence; that the defendant had no notice of baseballs passing over the fence in question, and that the defendant had taken whatever precautions were necessary under the circumstances for the protection of the public.

It is clear that the public has a right to the free and unmolested use of the public highways, and that abutting landowners may not so use their land as to interfere with the rights of persons lawfully using the highways. Mills v. Wilmington City Railway Co., 1 Marv. 269, 40 A. 1114; Philadelphia & R. Railway Co. v. Dillon, 1 W. W. Harr. 247, 114 A. 62, 15 A. L. R. 894.

*294Considering the extent to which the game of baseball is played in this country, the reported decisions of injuries caused by baseballs which have been hit out of baseball parks and which strike passers-by on the highways are surprisingly few. Seven cases have been called to my attention and no others have come to view, in which liability^ was sought to be imposed on the landowner. It is necessary to review them briefly.

Louisville Baseball Club v. Hill, 291 Ky. 333, 164 S. W. 2d. 398,-was a suit for an injury to an eleven year old boy struck in the face by a baseball coming over the fence from the defendant’s . park. The jury below returned a verdict for the plaintiff and, on appeal, this verdict was affirmed, although in the course of its opinion, the court stated that the doctrine of res ipso loquitur was applicable and that a verdict for the plaintiff should have been directed. The court said that the defendant owner of the baseball park, had notice that baseballs were often knocked over the particular fence in question and by reason of that knowledge, v\ as bound to anticipate that users of the highways might be injured. This being so, the court stated it was the duty of the defendant park owner to prevent the possibility of such accidents.

Jones v. Kane & Roach, Inc., 182 Misc. 37, 43 N. Y. S. 2d 140, was an action against the City of Syracuse for personal injuries to a pedestrian on a sidewalk running near the ball field on a city-owned park, who was struck in the face by a pitched: baseball. There were no barriers of any kind erected around the' ball field. The court found that the baseball diamond on the city-owned- -park was a well defined one; that the city had constructive notice that baseball games had been played thereon, and that base: balls .often came from the diamond into the highway. On this showing, the .case .was submitted to. the jury and a verdict, was. returned. for,.the plaintiff. .- • . . . . .

Wills v. Wisconsin-Minnesota Light & Power Co., 187 Wis. *295626, 205 N. W. 556, was an action for personal injuries to a twelve year old girl who was struck in the face by a foul ball coming from a baseball diamond located in an amusement park maintained by the defendant. The defendant maintained the amusement park to increase patronage of its trolley line and the plaintiff and her mother went to the amusement park for the purpose of pleasure. While there, the plaintiff was struck by the baseball. There was no protection of any kind around the park to contain balls within it. It was held that a question of fact was presented for the decision of the jury as to whether or not the defendant had taken reasonable precautions for the safety of the patrons of the amusement. park, the court holding that, under the circumstances, the defendant could reasonably have foreseen that persons might be struck by baseballs coming from the baseball diamond.

Honaman v. City of Philadelphia, 322 Pa. 535, 185 A. 750, was. an action for personal injuries by a plaintiff who was struck in the face by a foul ball. The facts were that a baseball game was being played.on a diamond laid out on a public park around which were no backstops or barriers, and so laid out that the catcher stood 8 to 10 feet from the sidewalk running near the diamond. Under these circumstances, the case was submitted to the jury by the trial court and a verdict returned for the plaintiff. On review by the Supreme Court of Pennsylvania, it was held that the city, in maintaining the park, was doing so in its corporate or proprietary capacity and was accordingly liable as other property owners in tort, and the judgment for the plaintiff was affirmed. The court held that landowners who maintain baseball diamonds on their land have a duty to protect persons lawfully using the highway's by the erection of appropriate barriers.

Young v. New York, N. H. & H. R. R., 136 App. Div. 730, 121 N. Y. S. 517, was an action for personal injuries by a plaintiff who was struck by a baseball coming from a game being played *296on an informal baseball field located on a vacant lot owned by the defendant adjacent to its station. The facts were that it was customary in the particular town for boys and men to engage in the game of “knocking up fly balls”, and that the lot in question was surrounded by public streets. On this showing alone, the court dismissed the action holding that ballplaying is not a nuisance. per se and that there was no evidence to establish that the type ot ballplaying going on on the defendant’s land was attended with such degree of danger as made it likely that it would injure persons lawfully using the streets. From this dismissal, an appeal was taken. The Appellate Court affirmed the dismissal but recog- ■ nized that under a proper showing of the inherent danger to persons on the highways, a duty would be imposed to take proper • precautions for the protection of those persons.

In Harrington v. Border City Mfg. Co., 240 Mass. 170, 132 N. E. 721, 18 A. L. R. 610, an action was brought by an employee of the defendant for injuries received when struck by a baseball coming' from a game played by other employees during the lunch hour on a lot owned by the defendant. The evidence showed that • the plaintiff was struck by the baseball while standing in a public street; that she had seen such games played daily during the warm-months; that she had seen the ball come out into the street several times prior to the occasion when she was injured; and that the game was played about 20 to 30 feet from the street in question ."On this showing, a verdict was directed for the defendant.

However, the court recognized the rule that a landowner may not permit acts to be done on his land which would negligently cause injury to a person lawfully on the highways. In the particular case, however, the court held that there was nothing dangerous in the permission granted by the defendant to its employees to play baseball on its large vacant field, and that the plaintiff had not borne the burden’of proving notice to the defendant that baseballs'often *297came from the field where the game was being played into the highways thus creating the danger of injury to persons lawfully using the highways. Since the court held that the defendant could not have foreseen the possibility of persons in the highways being struck by baseballs, it followed that there was no proof of the violation of any duty by the defendant. The verdict was directed, therefore, solely because the plaintiff had failed to carry the burden of proving negligence on the part of the defendant which resulted in the injuries complained of.

Dwyer v. Edison Electric Illuminating Co., 273 Mass. 234, 173 N. E. 594, was an action for personal injuries resulting from being struck by a baseball which came from the premises of the defendant lying along a public street. The defendant’s land had a baseball field located on it surrounded by an 8-foot high fence erected on a 3-foot concrete base. The baseball diamond was used by defendant’s employees after working hours. At the time the plaintiff sustained her injuries, two teams made up of defendant’s employees were playing. The home plate of the diamond was approximately 200 feet from the public highway and it ivas the fact that the baseball which struck the plaintiff crossed the fence surrounding the baseball diamond at a height of less than one foot above the fence. The court below directed a verdict for the defendant on the ground that the fence maintained would ordinarily have been sufficient to prevent a baseball from passing into the highway. On appeal, the directed verdict was affirmed.

The court, however, specifically stated that there was no evidence whatsoever to show that prior to the occurrence of the injury to the plaintiff, a baseball had ever gone over the fence into the highway and that the plaintiff had failed to sustain the burden of showing that the defendant was negligent in not having anticipated that a baseball would go over the fence into the highway. Had there been such evidence, presumably a verdict for the de*298fendant would not have been directed and the case would have been submitted to the jury to determine whether or not the defendant had taken reasonable precautions.

The foregoing referred to authorities are all that have been found dealing with injuries sustained by persons on the highways when struck by a baseball. No difference in principle, however, can exist between injuries from baseballs and injuries from golf balls.

In Gleason v. Hillcrest Golf Course, Inc., 148 Misc. 246, 265 N. Y. S. 886, an action was brought for personal injuries resulting from being struck by a golf ball while the plaintiff was lawfully driving her car on a public highway along which ran one of the fairways of a golf course. The ball which injured the plaintiff came into the highway because it was sliced — that is to say, it was driven to the right in a curving manner by a player on the golf course. The plaintiff sued both the player who drove the ball and the landowner. The court held both the player and the landowner liable. The landowner was held liable for the maintenance of a golf course in such condition that missiles might be set in motion into the highway and for the failure to use reasonable care to prevent injury to persons lawfully upon the highway. The court recognized that golf, like baseball, is not a nuisance per se, but may become such if the game is played in a location or in such a manner as to become dangerous to persons using the highways.

The foregoing cases, when analyzed, are not basically inconsistent. A rule emerges from a careful consideration of them which is harmonious with the result reached in each. This rule is that the playing of baseball with the permission of the landowner on land adjacent to a- highway does not of itself create a public nuisance which would make the landowner an insurer of the safety of persons lawfully using the highway. The inherent nature of the game of baseball, however, is such as to require the *299landowner to take reasonable precautions for the protection ol the traveling public. What precautions are reasonable must depend upon the facts and circumstances of the particular case. Only those precautions are required which die inherent nature of the game and its past history in the particular location make necessary for the protection of a person lawfully using the highways. The burden is on the plaintiff to show the necessity for precautions to have been taken by the landowner for the protection of the public. The failure of the plaintiff to bear that burden will result in non-suit or a directed verdict for the defendant.

The defendant argues that it took every reasonable precaution for the protection of the public using the highways. The architect who designed its ball park testified that the fence lines were established in accordance with the advice of baseball experts who, on a ground plan, had laid out circles showing the general location where baseballs could be expected to land. He also testified that consideration was given at that time to the height of the barriers to be erected — that is to say, the height of the grandstand, the bleachers and the fence around the park, and that those heights were established on the advice of experts.

While the defendant has shown that consideration was given by it to the protection of the public at the time the park was first built, the fact remains that despite the precautions taken, baseballs went out of its park into the public highway and that the defendant either knew that baseballs went out of its park or, under the circumstances, should have known. The evidence is not seriously contradicted that baseballs went out of the park into Thirtieth Street within the area through which the plaintiff was passing at the time of her injury two or three times in each game played in the defendant’s park.

Under the circumstances, it seems clear to me that while the defendant took precautions to protect people passing *300along Thirtieth Street, those precautions were insufficient. It further seems clear that the defendant knew, or should have known, that the precautions taken initially were insufficent to protect the public engaged in its lawful right, that is, using the highways. This circumstance puts the case at bar squarely within the rule I have drawn from the reported decisions, and if this were a jury trial, would be sufficient to submit the case to the jury and would compel, in my opinion, the jury to return a verdict for the plaintiff. Accordingly, my conclusion is that judgment should be entered for the plaintiff.

Judgment being entered for the plaintiff, it remains to determine in what amount that judgment should be. Under the circumstances, I believe the sum of $2500.00 will adequately compensate the plaintiff for the injuries received as a result of the negligence of the defendant.

*110PETERS, J.

Plaintiff appeals from a summary judgment for defendant Nancy Christian in this personal injury action.

In his complaint plaintiff alleged that about November 1, 1963, Miss Christian told the lessors of her apartment that the knob of the cold water faucet on the bathroom basin was cracked and should be replaced; that on November 30, 1963, plaintiff entered the apartment at the invitation of Miss Christian; that he was injured while using the bathroom fixtures, suffering severed tendons and nerves of his right hand; and that he has incurred medical and hospital expenses. He further alleged that the bathroom fixtures were dangerous, that Miss Christian was aware of the dangerous condition, and that his injuries were proximately caused by the negligence of Miss Christian. Plaintiff sought recovery of his medical and hospital expenses, loss of wages, damage to his clothing, and $100,000 general damages. It does not appear from the complaint whether the crack in the faucet handle was obvious to an ordinary inspection or was concealed.

Miss Christian filed an answer containing a general denial except that she alleged that plaintiff was a social guest and admitted the allegations that she had told the lessors that the faucet was defective and that it should be replaced. Miss Christian also alleged contributory negligence and assumption of the risk. In connection with the defenses, she alleged that plaintiff had failed to use his “eyesight” and knew of the condition of the premises. Apart from these allegations, Miss Christian did not allege whether the crack in the faucet handle was obvious or concealed.

Miss Christian’s affidavit in support of the motion for summary judgment alleged facts showing that plaintiff was a social guest in her apartment when, as he was using the bathroom, the porcelain handle of one of the water faucets broke in his hand causing injuries to his hand and that plaintiff had used the bathroom on a prior occasion. In opposition to the motion for summary judgment, plaintiff filed an affidavit stating that immediately prior to the accident he told Miss Christian that he was going to use the bathroom facilities, that she had known for two weeks prior to the accident that the faucet handle that caused injury was cracked, that she warned the manager of the building of the condition, that nothing was done to repair the condition of the handle, that she did not say anything to plaintiff as to the condition of the handle, and that when plaintiff turned off the faucet the handle broke *111in his hands severing the tendons and medial nerve in his right hand.

The summary judgment procedure is drastic and should be used with caution so that it does not become a substitute for an open trial. This court in two recent cases has stated: “Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor . . . and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785]; Joslin v. Marin Municipal Water Dist., 67 Cal.2d 132, 146-147 [60 Cal.Rptr. 377, 429 P.2d 889].) A defendant who moves for a summary judgment must prevail on the basis of his own affidavits and admissions made by the plaintiff, and unless the defendant’s showing is sufficient, there is no burden on the plaintiff to file affidavits showing he has a cause of action or to even file counteraffidavits at all. A summary judgment for defendant has been held improper where his affidavits were conclusionary and did not show that he was entitled to judgment and where the plaintiff did not file any counteraffidavits. (de Echeguren v. de Echeguren, 210 Cal.App.2d 141, 146-149 [26 Cal.Rptr. 562]; Southern Pac. Co. v. Fish, 166 Cal.App,2d 353, 362 et seq. [333 P.2d 133].)

In the instant case, Miss Christian’s affidavit and admissions made by plaintiff show that plaintiff was a social guest and that he suffered injury when the faucet handle broke; they do not show that the faucet handle crack was obvious or even noneoneealed. Without in any way contradicting her affidavit or his own admissions, plaintiff at trial could establish that she was aware of the condition and realized or should have realized that it involved an unreasonable risk of harm to him, that defendant should have expected that he would not discover the danger, that she did not exercise reasonable care to eliminate the danger or warn him of it, and that he did not Imow or have reason to know of the danger. Plaintiff also could establish, without contradicting Miss Christian’s affidavit or his admissions, that the crack was not obvious and was concealed. Under the circumstances, a summary judgment is proper in this case only if, after proof of such facts, a judgment would be required as a matter of law for Miss Christian. The record supports no such conclusion.

Section 1714 of the Civil Code provides: “Every one is responsible, not only for the result of his willful *112acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. ...” This code section, which has been unchanged in our law since 1872, states a civil law and not a common law principle. (Fernandez v. Consolidated Fisheries, Inc., 98 Cal.App.2d 91, 96 [219 P. 2d 73].)

Nevertheless, some common law judges and commentators have urged that the principle embodied in this code section serves as the foundation of our negligence law. Thus in a concurring opinion, Brett, M. R. in Heaven v. Pender (1883) 11 Q.B.D. 503, 509, states: “whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances 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. ’ ’

California cases have occasionally stated a similar view: “All persons are required to use ordinary care to prevent others being injured as the result of their conduct.” (Hilyar v. Union Ice Co., 45 Cal.2d 30, 36 [286 P.2d 21]; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317 [282 P.2d 12]; see also Green v. General Petroleum Corp., 205 Cal. 328, 333 [270 P. 952, 60 A.L.R. 475]; Perkins v. Blauth, 163 Cal. 782, 786 [127 P. 50]; McCall v. Pacific Mail S. S. Co., 123 Cal. 42, 44 [55 P. 706]; Edler v. Sepulveda Park Apts., 141 Cal.App.2d 675 680 [297 P.2d 508]; Copfer v. Golden, 135 Cal.App.2d 623, 627-628 [288 P.2d 90]; cf. Dillon v. Legg, 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912].) Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy. (Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224, 229-230 [11 Cal.Rptr. 97, 359 P.2d 465]; Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 213 et seq. [11 Cal.Rptr. 89, 359 P.2d 457]; Malloy v. Fong, 37 Cal.2d 356, 366 [232 P.2d 241].)

A departure from this fundamental principle involves the *113balancing of a number of considerations; the 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. (Cf. Schwartz v. Helms Bakery Ltd., 67 Cal.2d 232, 237, fn. 3 [60 Cal.Rptr. 510, 430 P.2d 68]; Hergenrether v. East, 61 Cal.2d 440, 443-445 [39 Cal.Rptr. 4, 393 P.2d 164]; Merrill v. Buck, 58 Cal.2d 552, 561-562 [25 Cal.Rptr. 456, 375 P.2d 304]; Chance v. Lawry’s, Inc., 58 Cal.2d 368, 377 [24 Cal.Rptr. 209, 374 P.2d 185]; Lipman v. Brisbane Elementary School Dist., supra, 55 Cal.2d 224, 229-230; Stewart v. Cox, 55 Cal.2d 857, 863 [13 Cal.Rptr. 521, 362 P.2d 345]; Biakanja v. Irving, 49 Cal.2d 647, 650 [320 P.2d 16, 65 A.L.R.2d 1358]; Wright v. Arcade School Dist., 230 Cal.App.2d 272, 278 [40 Cal.Rptr. 812]; Raymond v. Paradise Unified School Dist., 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847]; Prosser on Torts (3d ed. 1964) pp. 148-151; 2 Harper and James, The Law of Torts (1956) pp. 1052, 1435 et seq.)

One of the areas where this court and other courts have departed from the fundamental concept that a man is liable for injuries caused by his carelessness is with regard to the liability of a possessor of land for injuries to persons who have entered upon that land. It has been suggested that the special rules regarding liability of the possessor of land are due to historical considerations stemming from the high place which land has traditionally held in English and American thought, the dominance and prestige of the landowning class in England during the formative period of the rules governing the possessor’s liability, and the heritage of feudalism. (2 Harper and James, The Law of Torts, supra, p. 1432.)

The departure from the fundamental rule of liability for negligence has been accomplished by classifying the plaintiff either as a trespasser, licensee, or invitee and then adopting special rules as to the duty owed by the possessor to each of the classifications. Generally speaking a trespasser is a person who enters or remains upon land of another without a privilege to do so; a licensee is a person like a social guest who is not an invitee and who is privileged to enter or remain upon land by virtue of the possessor’s consent, and an invitee is a *114business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them. (Oettinger v. Stewart, 24 Cal.2d 133, 136 [148 P.2d 19, 156 A.L.R. 1221].)

Although the invitor owes the invitee a duty to exercise ordinary care to avoid injuring him (Oettinger v. Stewart, supra, 24 Cal.2d 133, 137; Hinds v. Wheadon, 19 Cal.2d 458, 460-461 [121 P.2d 724]), the general rule is that a trespasser and licensee or social guest are obliged to take the premises as they find them- insofar as any alleged defective condition thereon may exist, and that the possessor of the land owes them only the duty of refraining from wanton or willful injury. (Palmquist v. Mercer, 43 Cal.2d 92, 102 [272 P.2d 26]; see Oettinger v. Stewart, supra, 24 Cal.2d 133, 137 et seq.) The ordinary justification for the general rule severely restricting the occupier’s liability to social guests is based on the theory that the guest should not expect special precautions to be made on his account and that if the host does not inspect and maintain his property the guest should not expect this to be done on his account. (See 2 Harper and James, The Law of Torts, supra, p. 1477.)

An increasing regard for human safety has led to a retreat from this position, and an exception to the general rule limiting liability has been made as to active operations where an obligation to exercise reasonable care for the protection of the -licensee has been imposed on the occupier of land. (Oettinger v. Stewart, supra, 24 Cal.2d 133, 138-139 [disapproving contrary cases]; see Rest.2d Torts, § 341; Prosser on Torts, supra, pp. 388-389.) In an apparent attempt to avoid the general rule limiting liability, courts have broadly defined active operations, sometimes giving the term a strained construction in cases involving dangers known to the occupier.

Thus in Hansen v. Richey, 237 Cal.App.2d 475, 481 [46 Cal.Rptr. 909], an action for wrongful death of a drowned youth, the court held that liability could be predicated not upon the maintenance of a dangerous swimming pool but upon negligence “in the active conduct of a party for a large number of youthful guests in the light of knowledge of the dangerous pool.”1 In Howard v. Howard, 186 Cal.App.2d *115622, 625 [9 Cal.Rptr. 311], where plaintiff was injured by-slipping on spilled grease, active negligence was found on the ground that the defendant requested the plaintiff to enter the kitchen by a route which he knew would be dangerous and defective and that the defendant failed to warn her of the dangerous condition. (Cf. Anderson v. Anderson, 251 Cal.App.2d 409, 413 [59 Cal.Rptr. 342]; Herold v. P. H. Mathews Paint House, 39 Cal.App. 489, 493-494 [179 P. 414].) In Newman v. Fox West Coast Theatres, 86 Cal.App.2d 428, 431-433 [194 P.2d 706], the plaintiff suffered injuries when she slipped and fell on a dirty washroom floor, and active negligence was found on the ground that there was no water or foreign substances on the washroom floor when plaintiff entered the theater, that the manager of the theater was aware that a dangerous condition was created-after plaintiff’s entry, that the manager had time to clean up the condition after learning of it, and that he did not do so or warn plaintiff of the condition.

Another exception to the general rule limiting liability has been recognized for cases where the occupier is aware of the dangerous condition, the condition amounts to a concealed trap, and the guest is unaware of the trap. (See Loftus v. Dehail, 133 Cal. 214, 217-218 [65 P. 379]; Anderson v. Anderson, supra, 251 Cal.App.2d 409, 412; Hansen v. Richey, supra, 237 Cal.App.2d 475, 479-480; Huselton v. Underhill, 213 Cal.App.2d 370, 374-376 [28 Cal.Rptr. 822]; Bylling v. Edwards, 193 Cal.App.2d 736, 746-747 [14 Cal.Rptr. 760]; Yazzolino v. Jones, 153 Cal.App.2d 626, 636 [315 P.2d 107]; Ashley v. Jones, 126 Cal.App.2d 328, 332 [271 P.2d 918].) In none of these cases, however, did the court impose liability on the basis of a concealed trap; in some liability was found on another theory, and in others the court concluded that there was no trap. A trap has been defined as a “concealed” danger, a danger with a deceptive appearance of safety. (E.g., Hansen v. Richey, supra, 237 Cal.App.2d 475, 480.) It has also been defined as something akin to a spring gun or steel trap. (Anderson v. Anderson, supra, 251 Cal.App.2d 409, 412.) In the latter case it is pointed out that the lack of definiteness in the application of the term “trap” to any other situation makes its use argumentative and unsatisfactory.

The cases dealing with the active negligence and the trap exceptions are indicative of the subtleties and confusion which have resulted from application of the common law principles *116governing the liability of the possessor of land. Similar confusion and complexity exist as to the definitions of trespasser, licensee, and invitee. (See Fernandez v. Consolidated Fisheries, Inc., supra, 98 Cal.App.2d 91, 96.)

In refusing to adopt the rules relating to the liability of a possessor of land for the law of admiralty, the United States Supreme Court stated: “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. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law 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 subclassifieations bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards ‘imposing on owners and occupiers a single duty of reasonable care in all the circumstances. ’ ’ ’ (Footnotes omitted.) (Kermarec v. Compagnie Generale, 358 U.S. 625, 630-631 [3 L.Ed.2d 550, 554-555, 79 S.Ct. 406]; see also Jones v. United States, 362 U.S. 257, 266 [4 L.Ed.2d 697, 705, 80 S.Ct. 725, 78 A.L.R.2d 233]; 2 Harper and James, The Law of Torts, supra, 1430 et seq.; Prosser, Business Visitors and Invitees, 26 Minn.L.Rev. 573; Marsh, The History and Comparative Law of Invitees, Licensees and Trespassers, 69 L.Q.Rev. 182, 359.)

The courts of this state have also recognized the failings of the common law rules relating to the liability of the owner and occupier of land. In refusing to apply the law of invitees, licensees, and trespassers to determine the liability of an independent contractor hired by the occupier, we pointed out that application of those rules was difficult and often abitrary. (Chance v. Lawry’s, Inc., supra, 58 Cal.2d 368, 376-379; cf. Hall v. Barber Door Co., 218 Cal. 412, 419 [23 P.2d 279]; Donnelly v. Hufschmidt, 79 Cal. 74, 75-76 [21 P. 546]; Burke v. Zanes, 193 Cal.App.2d 773, 778 [14 Cal.Rptr. 619].) In refusing to apply the common law rules to a known trespasser on an automobile, the common law rules were characterized as “unrealistic, arbitrary, and inelastic,” and it was *117pointed out that exceedingly fine distinctions had been developed resulting in confusion and that many recent cases have in fact applied the general doctrine of negligence embodied in section 1714 of the Civil Code rather than the rigid common law categories test. (Fernandez v. Consolidated, Fisheries, Inc., supra, 98 Cal.App.2d 91, 96 et seq.) Other cases which have criticized the approach of the common law rules on the basis of the status of the plaintiff with the resulting confusion include Hansen v. Richey, supra, 237 Cal.App.2d 475, 478; Miller v. Desilu Productions, Inc., 204 Cal.App.2d 160, 166 [22 Cal.Rptr. 36]; Hession v. City & County of San Francisco, 122 Cal.App.2d 592, 602 [265 P.2d 542].

There is another fundamental objection to the approach to the question of the possessor’s liability on the basis of the common law distinctions based upon the status of the injured party as a trespasser, licensee, or invitee. Complexity can be borne and confusion remedied where the underlying principles governing liability are based upon proper considerations. Whatever may have been the historical justifications for the common law distinctions, it is clear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which has arisen is not due to difficulty in applying the original common law rules—they are all too easy to apply in their original formulation—but is due to the attempts to apply just rules in our modem society within •the ancient terminology.

Without attempting to labor all of the rules relating to the possessor’s liability, it is apparent that the classifications of trespasser, licensee, and invitee, the immunities from liability predicated upon those classifications, and the exceptions to those immunities, often do not reflect the major factors which should determine whether immunity should be conferred upon the possessor of land. Some of those factors, including the closeness of the connection between the injury and the defendant’s conduct, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the prevalence and availability of insurance, bear little, if any, relationship to the classifications of trespasser, licensee and invitee and the existing rules conferring immunity.

Although in general there may be a relationship between the remaining factors and the classifications of trespasser, licensee, and invitee, there are many eases in which no" such relationship may exist. Thus, although the foreseeability Of harm to an invitee" would ordinarily seem greater than the *118foreseeability of harm to a trespasser, in a particular case the opposite may be true. The same may be said of the issue of certainty of injury. The burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach may often be greater with respect to trespassers than with respect to invitees, but it by no means follows that this is true in every case. In many situations, the burden will be the same, i.e., the conduct necessary upon the defendant’s part to meet the burden of exercising due care as to invitees will also meet his burden with respect to licensees and trespassers. The last of the major factors, the cost of insurance, will, of course, vary depending upon the rules of liability adopted, but there is no persuasive evidence that applying ordinary principles of negligence law to the land occupier’s liability will materially reduce the prevalence of insurance due to increased cost or even substantially increase the cost.

Considerations such as these have led some courts in particular situations to reject the rigid common law classifications and to approach the issue of the duty of the occupier on the basis of ordinary principles of negligence. (E.g., Gould v. DeBeve (D.C. Cir.) 330 F.2d 826, 829-830 [117 App.D.C. 360]; Anderson v. Anderson, supra, 251 Cal.App.2d 409, 413; Taylor v. New Jersey Highway Authority, 22 N.J. 454 [126 A.2d 313, 317, 62 A.L.R.2d 1211]; Scheibel v. Upton 156 Ohio St. 308 [102 N.E.2d 453, 462-463]; Potts v. Amis, 62 Wn. 2d 777 [384 P.2d 825, 830-831]; see Comment (1957) 22 Mo.L.Rev. 186; Note (1958) 12 Rutgers L.Rev. 599.) And the common law distinctions after thorough study have been repudiated by the jurisdiction of their birth. (Occupiers’ Liability Act, 1957, 5 and 6 Eliz. 2, ch. 31.)

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.

It bears repetition that the basic policy of this state *119set forth by the Legislature in section 1714 of the Civil Code is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property. The factors which may in particular cases warrant departure from this fundamental principle do not warrant the wholesale immunities resulting from the common law classifications, and we are satisfied that continued adherence to the common law distinctions can only lead to injustice or, if we are to avoid injustice, further fictions with the resulting complexity and confusion. We decline to follow and perpetuate such rigid classifications. The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.

Once the ancient concepts as to the liability of the occupier of land are Stripped away, the status of the plaintiff relegated to its proper place in determining such liability, and ordinary principles of negligence applied, the result in the instant case presents no substantial difficulties. As we have seen, when we view the matters presented on the motion for summary judgment as we must, we must assume defendant Miss Christian was aware that the faucet handle was defective and dangerous, that the defect was not obvious, and that plaintiff was about to come in contact with the defective condition, and under the undisputed facts she neither remedied the condition nor warned plaintiff of it. Where the occupier of land is aware of a concealed condition involving in the absence of. precautions an unreasonable risk of harm to those coming in. contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.

. It may be noted that by carving further exceptions out of the traditional rules relating to the liability to licensees or

*120social guests, other jurisdictions reach the same result (see Rest.2d Torts, supra, § 342; Annot., Duty of a possessor of land to warn adult licensees of danger (1957) 55 A.L.R.2d 525; 49-55 A.L.R.2d, Later Case Service (1967) 485; but cf. Hansen v. Richey, supra, 237 Cal.App.2d 475, 478-479; Saba v. Jacobs, 130 Cal.App.2d 717, 719 [279 P.2d 826]; Ward v. Oakley Co., 125 Cal.App.2d 840, 844-845 [271 P.2d 536]; Fisher v. General Petroleum Corp., 123 Cal.App.2d 770, 779-780 [267 P.2d 841]), that by continuing to adhere to the strained construction of active negligence or possibly, by applying the trap doctrine the result would be reached on the basis of some California precedents (e.g., Hansen v. Richey, supra, 237 Cal.App.2d 475, 481), and that the result might even be reached by a continued expansion of the definition of the term “invitee” to include all persons invited upon the land who may thereby be led to believe that the host will exercise for their protection the ordinary care of a reasonable man (cf. O’Keefe v. South End Rowing Club, 64 Cal.2d 729, 737-739 [51 Cal.Rptr. 534, 414 P.2d 830,16 A.L.R.3d 1]). However, to approach the problem in these manners would only add to the confusion, complexity, and fictions which have resulted from the common law distinctions.

The judgment is reversed.

Traynor, C. J., Tobriner, J., Mosk, J., and Sullivan, J., concurred.

BURKE, J.

I dissent. In determining the liability of the occupier or owner of land for injuries, the distinctions between trespassers, licensees and invitees have been developed and applied by the courts over a period of many years. They supply a reasonable and workable approach to the problems involved, and one which provides the degree of stability and predictability so highly prized in the law. The unfortunate alternative, it appears to me, is the route taken by the majority in their opinion in this case; that such issues are to be decided on a case by case basis under the application of the basic law of negligence, bereft of the guiding principles and precedent which the law has heretofore attached by virtue of the relationship of the parties to one another.

Liability for negligence turns upon whether a duty of care is owed, and if so, the extent thereof. Who can doubt that the corner grocery, the large department store, or the financial institution owes a greater duty of care to one whom it has *121invited to enter its premises as a prospective customer of its wares or services than it owes to a trespasser seeking to enter after the close of business hours and for a nonbusiness or even an antagonistic purpose? I do not think it unreasonable or unfair that a social guest (classified by the law as a licensee, as was plaintiff here) should be obliged to take the premises in the same condition as his host finds them or permits them to be. Surely a homeowner should not be obliged to hover over his guests with warnings of possible dangers to be found in the condition of the home (e.g., waxed floors, slipping rugs, toys in unexpected places, etc., etc.). Yet today’s decision appears to open the door to potentially unlimited liability despite the purpose and circumstances motivating the plaintiff in entering the premises of another, and despite the caveat of the majority that the status of the parties may “have some bearing on the question of liability . . . ,” whatever the future may show that language to mean.

In my view, it is not a proper function of this court to overturn the learning, wisdom and experience of the past in this field. Sweeping modifications of tort liability law fall more suitably within the domain of the Legislature, before which all affected interests can be heard and which can enact statutes providing uniform standards and guidelines for the future.

I would affirm the judgment for defendant.

McComb, J., concurred.

OPINION

FLANDERS, Justice.

A terrible tragedy hangs heavy over this tale of woe. William J. Houle (Houle) had warned his son, twelve-year-old Brendan, about the dangers they would face when they attempted to traverse a train trestle at night over a body of water. On a clear spring evening in 1990, Houle took his two sons out for a ramble on the train trestle that spans Apponaug Cove in Warwick. Brendan, the younger of Houle’s sons, was unable to restrain himself and stay close to his father as they passed over the water. He soon dashed ahead on the tracks and thereby fatally exposed himself to the very danger about which his father had warned him. Unfortunately Houle then had to watch in mortal dismay as his son perished before his eyes when he was unable to outrun an oncoming Amtrak train. For the reasons that follow, we now affirm a summary judgment that dismissed the claims arising out of this calamity.

Background

The plaintiff, Warren R. Wolf (Wolf), in his capacity as administrator of the estate of Brendan L. Houle (Brendan), appeals from a final judgment entered in favor of defendants, National Railroad Passenger Corp., d.b.a. Amtrak, and Bernard J. McGovern (engineer McGovern) (collectively Amtrak), after they successfully moved for summary judgment. Wolf seeks to recover for the alleged wrongful death of twelve-year-old Brendan, who was killed by an oncoming train on a trestle above Apponaug Cove while he was walking there with his father and his brother one spring night in 1990. Because our de novo review of the record reveals that there were no genuine issues of material fact and that the motion justice applied the correct legal standard to the undisputed facts, we affirm the granting of Amtrak’s summary-judgment motion and the entry of final judgment in its favor.

Early in the morning on a mid-spring day in 1990, Amtrak passenger train No. 94 left the Newport News, Virginia railway station, bound northward for New England. While the train steadily wound its way on a journey that would take it through Rhode Island and then on to Boston, Houle and his nineteen-year-old son, James Houle (James), were at work in Houle’s store in Providence. At about ten of eight that evening, Houle and James closed up shop, hopped in Houle’s ear, and picked up Brendan in Warwick. Houle *1084planned to take his two sons to a video arcade.

While driving to the arcade on that fateful evening, however, Houle decided on the spur of the moment to turn down a dirt road leading to a small parking area at the base of the Apponaug Cove train trestle. Two train tracks running north and south loomed above them atop the trestle, each separated by a four-foot-high divider. In years past, Houle had taken his older son, James, to the waterfront area by the trestle where they would perambulate and skip rocks over the cove’s calm waters. But this night was one of those rare occasions when Houle had both of his boys with him, and he thought it would be nice for them to spend some time together down by the cove.

The trio spent a few minutes skimming rocks along the water before Houle suggested that they cross over the trestle to walk around on the other side of the cove. He warned his offspring about the possibility of encountering a train and how they should fly off the track if one should appear. Father and sons then sealed the steep embankment on a well-worn path and started to head south across the trestle from- its northern end. Although no signs warned them about the danger of approaching trains and no fence impeded their access to the trestle, they joked about the possibility of a train’s coming while they were en route. Perhaps in his excitement and in his eagerness to get to the other side, Brendan ran ahead of the others. James, the older teenager, lagged a distance behind him, and Houle brought up the rear as they trekked across the trestle.

Suddenly a shrill whistle pierced the night. Frantically looking up and down the tracks to locate the source of their shared terror, the trio soon caught sight of a northbound train that suddenly careened into view around a blind bend approximately 1,000 feet from the northern end of the trestle where they had begun their walk. Hurtling through the dusk at seventy-five miles per hour, it charged at them head on from the south. Houle, closest to the northern end of the trestle, turned on his heel and sprinted quickly out of harm’s way off the trestle’s northern end. James spun around and bolted north, screaming, “Train!” before he too was able to dive off the end of the trestle. Thus in a few seconds only Brendan was left on the tracks, running for his life while No. 94 pitilessly bore down on him. Having glimpsed the commotion on the track ahead, engineer McGovern sounded the train’s whistle and activated the emergency brakes, but the trestle proved a bridge too far for Brendan to recross. Caught too close to the trestle’s southern end, he was unable to retrace his steps in time to evade the train. With his father and brother still shouting at him, Brendan was within ten feet of the end of the trestle when the train overtook him.

In due course, after having been appointed to administer Brendan’s estate, Wolf filed a timely wrongful-death suit in Kent County Superior Court against Amtrak and engineer McGovern, alleging essentially negligent design and maintenance of the railroad trestle and its surrounding area.1 After engaging in discovery, Amtrak moved for summary judgment on the basis of this *1085court’s decision in Tantimonico v. Allendale Mutual Insurance Co., 637 A.2d 1056 (R.I.1994). There we abandoned the court’s nineteen-year experiment with a new-premises liability rule, first announced in Mariorenzi v. Joseph DiPonte, Inc., 114 R.I. 294, 333 A.2d 127 (1975), that required property owners to exercise due care toward all persons reasonably expected to be on the premises, regardless of their common-law status when they entered the property. In Tantimonico we returned to the previous common-law rule that property owners owe trespassers “no duty save to refrain from willful or wanton injury.” 637 A.2d at 1061.

The plaintiffs argued below that Tantimonico, decided in 1994, should not retroactively be applied to their claims, which arose in 1990 when Mariorenzi was still the law. The motion justice disagreed, concluding that Tantimonico should be applied retroactively to all pending claims. She also found that there was no material issue of fact regarding Brendan’s status as a trespasser, no evidence to suggest that engineer McGovern had failed to take sufficient emergency measures, and no evidence to indicate that Amtrak had acted willfully or wantonly. Accordingly the motion justice granted Amtrak’s summary-judgment motion and, pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure,2 entered a final judgment in its favor. On appeal Wolf argues that Tantimonico should not have been applied retroactively and that even if it were to be so applied, there are still genuine issues of material fact that preclude the award of summary judgment.

Analysis

Because “ ‘a prospective-only approach to the operation of a judicial decision is the exception rather than the rule,’ ” Landmark Medical Center v. Gauthier, 635 A.2d 1145, 1154 (R.I.1994) (quoting State v. Porter, 437 A.2d 1368, 1371 (R.I.1981)); see generally Ondis v. Pion, 497 A.2d 13 (R.I.1985) (collecting cases providing for prospective application), and because Wolf has not carried his burden of demonstrating that such a prospective-only application of Tantimonico is warranted,3 see State v. Porter, 437 A.2d 1368, 1371-72 (R.I.1981), we agree that the Tantimonico standard was properly applied to the litigants in this case. See Ondis, 497 A.2d at 17 (“‘[i]n the past this court has chosen to apply new rules of law in the manner best suited to serve the interests of justice and to avoid hardship’ ”); State v. Arpin, 122 R.I. 643, 656, 410 A.2d 1340, 1347 (1980) (“[i]t is well settled that the highest court of a state may choose to apply new rules of law in any manner it deems appropriate and just”). Indeed it would be particularly anomalous if the standard of care announced in Tantimonico and applied retroactively to the litigants in that case was not to be applied to the litigants here. If the holding in Tantimonico had been a candidate for a limited retroactive application, that decision would have been the most appropriate occasion to announce such a restriction. See, e.g., Haddad v. First National Stores, Inc., 109 R.I. 59, 67, 280 A.2d 93, 98 (1971) (adopting attractive-nuisance doctrine to litigants in case at bar and “to all injuries * * * occurring sixty days after the date of the filing of this opinion”).

Moreover, and perhaps most importantly, this is not a situation in which it was likely that the injured parties would have been acting in reliance on the old Mariorenzi rule when they were trespassing on Amtrak’s trestle in 1990. Under Mariorenzi “the question to be resolved” in determining the degree of care owed by a landowner to an entrant upon the land was “whether the own*1086er has used reasonable care for the safety of all persons reasonably expected to be upon [the] premises.” 114 R.I. at 307, 333 A.2d at 133. Here, even Wolf does not contend that Houle and his sons were induced to trespass upon the Apponaug Cove train trestle in reliance upon what they expected would be the duty of reasonable care owed to them by the trestle’s owner. Accordingly we do not believe it was inappropriate or unfair for the motion justice to have followed the general rule that applies decisions like Tantimonico retroactively to factual events that occurred before its announcement. This is especially true when, as here, there is a long and established common-law tradition that denies relief to injured trespassers in circumstances like these. (See cases cited, infra.)

We now turn to a consideration of whether summary judgment was properly granted to Amtrak. The first issue to be determined is whether Brendan’s status at the time of the accident was that of trespasser. Even assuming the existence of a well-worn path leading up to the trestle (presumably indicative of some usage of the trestle as a pedestrian crossing), we agree with the motion justice that Brendan was still trespassing on Amtrak’s trestle at the time of the accident. See Zoubra v. New York, New Haven and Hartford Railroad Co., 89 R.I. 41, 44, 150 A.2d 643, 645 (1959) (“this court has long since adopted the view that in railroad cases the fact that a certain place, where there is no public right of passage, has been used by persons as a crossing does not constitute such place as a public crossing[;][n]or does it confer upon persons using it any other relation to the railroad than that of trespassers”) (citing Boday v. N.Y., N.H. & H.R.R. Co., 53 R.I. 207, 165 A. 448 (1933)). As such, Amtrak owed Brendan a duty to refrain from willful or wanton injury, see Tantimonico, 637 A.2d at 1061, after his trespass was discovered, Zoubra, 89 R.I. at 45, 150 A.2d at 645 (“the law does not impose upon the defendant [railroad] any duty toward the plaintiff as a trespasser * * * unless it has first discovered [him] in a position of danger”); New England Pretzel Co. v. Palmer, 75 R.I. 387, 394, 67 A.2d 39, 43 (1949) (“[a] railroad owes no duty to a trespasser * * * except after discovering his peril”); see also Erenkrantz v. Palmer, 69 R.I. 478, 481, 35 A.2d 224, 225 (1944); Boday, 53 R.I. at 208, 165 A. at 448. Furthermore “ ‘a railroad is under no duty to keep a lookout for trespassers. Their probable presence on the tracks is not such a circumstance which the law requires a railroad to anticipate and reasonably guard against.’ ” Zoubra, 89 R.I. at 45-46, 150 A.2d at 645.

Brendan’s trespass was first discovered by engineer McGovern as the train rounded a bend in the tracks located approximately 1,000 feet from the trestle. At that point Amtrak had the duty to avoid willfully or wantonly injuring Brendan. In response to observing Brendan’s nighttime presence on the tracks, engineer McGovern immediately sounded the train’s whistle and engaged the emergency brakes. The train was traveling at a speed of between seventy and eighty miles per hour in a corridor that had a speed limit of ninety-five miles per hour. Given these facts, the record is devoid of any suggestion that Amtrak did anything willfully or wantonly to cause Brendan’s demise. On the contrary, it appears that Amtrak did all that could reasonably be expected of it after its engineer detected Brendan on the trestle. Unfortunately there was simply not enough time for the train to stop and thereby prevent this catastrophe. Thus on these facts we are of the opinion that the motion justice properly awarded Amtrak summary judgment.

Finally, because the risk of injury from an oncoming train would be apparent to anyone who decides to walk along a train trestle, we hold that as a matter of law the trestle was not an “attractive nuisance.” See Haddad, 109 R.I. at 61-67, 280 A.2d at 95-98 (discussing and adopting the attractive-nuisance doctrine); see also Holland v. Baltimore & Ohio Railroad Co., 431 A.2d 597, 602 (D.C.Ct.App.1981) (en banc) (“[t]he overwhelming weight of authority in jurisdictions across the country is that the attractive nuisance exception does not apply as a matter of law in cases where child trespassers are injured by moving trains”); Brownfeld v. Missouri Pacific Railroad Co., 794 S.W.2d 773, 777 (Tex.Ct.App.1990, writ denied) (“[a]n or*1087dinary railroad trestle is certainly not * * * “well within’ the boundaries of attractive nuisance”). The obvious danger to prospective trespassers posed by a trestle like this one— a deathtrap consisting of tracks separated by a four-foot-high wall, passing above a body of water, surrounded by open airspace — is at least as great as that presented by a crossing. This court has previously recognized the dangers posed by railroad crossings that, unlike this trestle, are usually surrounded by terra firma on all sides. See Francis v. Atlantic Terminals, Inc., 104 R.I. 346, 350, 244 A.2d 415, 417 (1968) (a railroad crossing “is a place of great danger”); Kennedy v. N.Y., N.H. & H.R.R. Co., 43 R.I. 358, 362, 112 A. 429, 431 (1921) (“[i]t is well known that a railroad crossing is a place of great danger”). Having discussed in advance possible ways to extricate themselves in the event they should encounter a train, father and sons were all well aware of the extremely parlous situation in which they had voluntarily placed themselves. Thus, because Brendan must be deemed to have realized the risk of what he was doing, the attractive-nuisance doctrine is inapplicable.

Conclusion

For the foregoing reasons Wolfs appeal is denied and dismissed, the award of summary judgment and the entry of final judgment in Amtrak’s favor is affirmed, and the papers of this ease are remanded to the Superior Court.

GOLDBERG, J., did not participate.

Shake, C. J.

The appellee recovered a judgment against the appellant for personal injuries. The assigned errors relate to the overruling of the appellant’s motion for a judgment on the interrogatories and the answers thereto and the motion for a new trial. Under the motion for a new trial it is charged that the verdict is not sustained by sufficient evidence; that it is contrary to law; that there was error in the giving and refusal of certain instructions; that appellee’s counsel was guilty of misconduct; and that the damages are excessive.

John Hicks, the appellee, a six-year-old boy, visited the appellant’s department store in company with his mother, who was engaged in shopping. While descending from the third floor on an escalator, the appellee fell at the second floor landing and some fingers of both *91his hands were caught in the moving parts of the escalator at the place where it disappears into the floor.

The appellee’s complaint contained five distinct charges of negligence, as follows:

“1. In operating an escalator so constructed as to leave sufficient space between said ribs, said comb-plate and the teeth thereof to permit the fingers of small children, including plaintiff, to become caught and wedged therein when said escalator could then and prior thereto have been so constructed as defendant knew or should have known with ribs so close together and passing between the teeth and under the comb-plate with so little space between that fingers of children could not have been entangled or wedged therein.

“2. In failing to have a proper guard placed over the teeth of said comb-plate and the openings between said teeth to prevent objects and particularly fingers and other parts of the body of passengers on said escalators which might be drawn therein from being caught therein.

“3. In failing to take proper steps to stop the movement of said escalator with reasonable promptness when it knew, or by exercise of reasonable care should have known, of plaintiff’s position of peril. That the means taken by defendant, if any, with reference to safeguarding passengers upon said escalators by having employees in a position to observe the same and stop said operation in the event of an accident, and the facts with reference to the stopping of the escalator after plaintiff’s said fall are unknown to plaintiff, but are fully known to the defendant.

“4. In failing to take proper steps for the immediate release of plaintiff from said escalator following said accident. That the means taken by defendant with reference to reversing such mechanism upon the happening of an accident and the means adopted by defendant with reference thereto after plaintiff’s said fall are unknown to plaintiff, except as hereinbefore stated, but are fully known to defendant.

“5. In failing to equip said mechanism so that it could be instantly reversed at or near the point *92of the accident in order to extricate therefrom persons who might become caught or entangled therein.”

On review; only the pleadings, the general verdict, and the interrogatories and answers will be considered in determining whether a judgment should have been entered on the answers to interrogatories. The evidence actually introduced at the trial will not be considered, but the court will suppose any evidence that might properly have been introduced under the issues. 2 Watson’s Works Practice, § 1903.

The jury found that the escalators with which the appellant’s store was equipped were purchased and installed in 1934; that no escalator was made prior to the accident that was safer than the one in use; that it was not the practice of stores installing escalators to have an attendant after a year; that the escalator on which appellee was injured was equipped with switch buttons at each floor landing by which it could be stopped in about 2*4 steps; that appellant had clerks working within 50 feet of the place where appellee was injured, all of whom had not been instructed how to stop the escalator; that the escalator was moving at the rate of 90 feet per minute; that appellee’s fingers were caught in the mechanism practically as soon as he fell; that the escalator ran “approximately 70 steps (of 15 inches) or more” before it was stopped; that it was from 3 to 5 minutes after appellee was first injured before his fingers were released; arid that the appellee’s injuries were increased by the grinding effect on his fingers which continued until the escalator was stopped.

*93 *92The appellant asserts that it affirmatively appears from the answers to the interrogatories that it was *93not guilty of any act or omission of negligence charged in the complaint. The facts found by the jury conclusively establish that the appellant was not negligent with respect to the choice, construction, or manner of operating the escalator. This being true, there could have been no incidental duty on the appellant to anticipate an accident, to instruct its employees, or to keep someone in attendance when the machine was in operation. One is not bound to guard against a happening which there is no reason to anticipate or expect. Parry Mfg. Co. v. Eaton (1908), 41 Ind. App. 81, 83 N. E. 510. Having concluded that the appellant was not responsible for the appellee’s initial injury, the question arises whether it may, nevertheless, be held liable for an aggravation of such injury, and, if so, under what circumstances.

It may be observed, on the outset, that there is no general duty to go to the rescue of a person who is in peril. So, in Hurley, Adm. v. Eddingfield, (1901), 156 Ind. 416, 59 N. E. 1058, 83 Am. St. Rep. 198, 53 L. R. A. 135, it was held that a physician was not liable for failing without any reason to go to the aid of one who was violently ill and who died from want of medical attention which was otherwise unavailable. The effect of this .rule was aptly illustrated by Carpenter, C. J., in Buch v. Amory Manufacturing Co. (1897), 69 N. H. 257, 260, 44 A. 809, 810, 76 Am. St. Rep. 163, 165, as follows:

“With purely moral obligations the law does not deal. For example, the priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might and morally ought to have prevented or relieved.”

There may be principles of social conduct so universally recognized as to be demanded that they be *94observed as a legal duty, and the relationship of the parties may impose obligations that would not otherwise exist. Thus, it has been said that, under some circumstances, moral and humanitarian considerations may require one to render assistance to another who has been injured, even though the injury was not due to negligence on his part and may have been caused by the negligence of the injured person. Failure to render assistance in such a situation may constitute . actionable negligence if the injury is aggravated through lack of due care. 38 Am. Jur. Negligence, § 16, p. 658, 69 L. R. A. 533. The case of Depue v. Flatau (1907), 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, lends support to this rule. It was there held that one who invited into his house a cattle buyer who called to inspect cattle which were for sale owed him the duty, upon discovering that he had been taken severely ill, not to expose him to danger on a cold winter night by sending him away unattended while he was in a fainting and helpless condition.

After holding that a railroad company was liable for failing to provide medical and surgical assistance to an employee who was injured without its fault but who was rendered helpless, by reason of which the employee’s injuries were aggravated, it was said with the subsequent' approval of this court, in Tippecanoe Loan, etc., Co. v. Cleveland, etc., R. Co. (1915), 57 Ind. App. 644, 649, 650, 104 N. E. 866, 868, 106 N. E. 739:

“In some jurisdictions the doctrine has been extended much further than we are required to- go in deciding this case. It has been held to apply to cases where one party has been so injured as to render him helpless by an instrumentality under the control of another, even though no relation of master and servant, or carrier and passenger existed at the time. It has been said that the mere happening of an accident of this kind creates a *95relation which gives rise to a legal duty to render such aid to the injured party as may be reasonably necessary to save his life, or to prevent a serious aggravation of his injuries, and that this subsequent duty does not depend upon the negligence of the one party, or the freedom of the other party from contributory negligence, but that it exists irrespective of any legal responsibility for the original injury.”

From the above cases it may be deduced that there may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless and in a situation of peril, when the one proceeded against is a master or an invitor or when the injury resulted from use of an instrumentality under the control of the defendant. Such an obligation may exist although the accident or original injury was caused by the negligence of the plaintiff or through that of a third person and without any fault on the part of the defendant. Other relationships may impose a like obligation, but it is not necessary to pursue that inquiry further at this time.

In the case at bar the appellee was an invitee and he received his initial injury in using an instrumentality provided by the appellant and under its control. Under the rule stated above and on the authority of the cases cited this was a sufficient relationship to impose a duty upon the appellant. Since the duty with which we are presently concerned arose after the appellee’s initial injury occurred, the appellant cannot be charged with its anticipation or prevention but only with failure to exercise reasonable care to avoid aggravation. The measure of that duty is not unlike that imposed by the rule of the last clear chance or doctrine of discovered peril, though it should be observed that the last mentioned rule imposes a *96negative rather than an affirmative obligation and does not depend upon the relationship of the parties. To invoke the application of the last clear chance as it has been defined in this State, the defendant must have had knowledge of the plaintiff’s situation of peril and of his helpless condition and, thereafter, have failed to exercise reasonable care to avoid harming him. Southern R. Co. v. Wahl (1925), 196 Ind. 581, 149 N. E. 72. The same rule must be applied in the case at bar. The third charge of negligence already-quoted invoked the application of this rule and, upon that theory, the facts found by the jury are not incompatible with the general verdict. There was, consequently, no error in overruling the appellant’s motion for a judgment on the answers to the interrogatories.

In the sixth instruction tendered by the appellee and given by the court the jury was told that “In determining the amount, of damages which you will award plaintiff, it is proper to consider every phase of his injuries, as charged in the complaint, and which you find have been established by a preponderance of the evidence.” AH of the appellee’s injuries including' those initially suffered and those which might be said to be the result of the appellant’s negligence were charged in the complaint and the subject of the evidence. The above instruction is, therefore, erroneous. In no event could the appellant be held liable for injuries that were not the proximate .result of its negligence. The apportionment of the damages under such circumstances has been recognized by the practice in this State. In The Standard Oil Company v. Bowker (1895), 141 Ind. 12, 17, 40 N. E. 128, 130, which was an action for personal injuries, we find the following language:

*97“It is argued further that the appellee, having disobeyed the instructions of his physician, in taking improper exercise, contributed to his diseased condition. While this may be true that fact would not deprive him of damages for the original injury, but would probably permit an inquiry as to the extent of the injury sustained alone from the fault ■ of the appellant.”

The Louisville, New Albany and Chieago Railway Company v. Falvey (1885), 104 Ind. 409, 424, 3 N. E. 389, 397, 4 N. E. 908, was a similar case to the one from which we have just quoted. In the latter case the following instruction was approved:

“ Tt was the duty of the plaintiff to use ordinary care, judgment and diligence in securing medical or surgical aid after she received the injuries complained of, if any she received, and if you find from . the evidence that after she received such injuries, if any she did receive, she failed to use such ordinary .care, judgment and diligence in procuring timely medical or surgical aid; and if you further find from the evidence that, by reason of such failure, her condition is now different and worse than it would have been if she had used such ordinary care, judgment and diligence in the premises, then, if you find for the plaintiff, you should take this into account in making up your verdict, and should not allow her any damages for ailments and diseases, if any, that may have resulted from such failure.’ ”

While the above cases arose on factual situations different from the ease at bar, the principles stated therein are applicable. Since the appellee was only entitled to recover for an aggravation of his injuries, the jury should have been limited and restricted in assessing the damages to the injuries that were the proximate result of the appellant’s actionable negligence.

*98This opinion might be extended, but in view of the fact that a new trial will be ordered it is not deemed necessary or proper to say more. Both parties are represented by able counsel and the case was unusually well tried. It is unlikely that the alleged errors not discussed will recur.

The judgment is reversed with directions to sustain the appellant’s motion for a new trial.

Note.—Reported in 40 N. E. (2d) 384.

On Petition for Rehearing.

Shake, C. J.

The appellee’s petition for rehearing challenges only that part of the foregoing opinion which holds that reversible error was committed in the giving of the appellee’s instruction No. 6. It is urged that: (1) Any error in the giving of this instruction was waived if it was presented; (2) standing alone, the instruction is not erroneous; and (3) it is not erroneous when considered with instructions Nos. 7 and 8 tendered by the appellant and given to the jury.

. As to the first point it may be observed that it affirmatively appears from the record and from the appellant’s original brief that the giving of in-struction No. 6 was one of the grounds of the motion for a new trial and that, the overruling of this motion was duly assigned as error on appeal. The proposition supporting this assigned error was stated in the appellant’s original brief as follows: “There was error in the sixth instruction requested by plaintiff and given, which instruction improperly included ■ humiliation as an element of plaintiff’s damages.” This was followed by the citations of many authorities. The question arises then whether we went outside the briefs in concluding that instruction No. 6 *99was bad because it embraced improper elements of . damages other than humiliation. While alleged errors not presented and discussed in the appellant’s brief will be treated as waived, this court does not regard itself as required to accept or reject the specific reasons advanced by a litigant to sustain his contentions. Keeshin Motor Express Co. v. Glassman (1942), 219 Ind. 538, 38 N. E. (2d) 847. The practice rule to the effect that alleged errors, not specifically pointed out in the appellant’s brief, will be treated as waived was not intended to circumscribe the reviewing tribunal. The purpose of the rule is to relieve the court of the burden of searching the record and briefing the case and to place that responsibility on the party asserting error. It will not be carried so far as to require the court to close its eyes to that which is apparent. To do so would not infrequently place us in the unhappy situation of lending tacit approval to an instruction palpably bad on its face, and this could only result in confusing the law and misleading the profession. In Big Creek Stone Co. et al. v. Seward et al. (1895), 144 Ind. 205, 210, 42 N. E. 464, 43 N. E. 5, it was observed in this connection that “If the court were limited to the arguments and reasoning of counsel in its decisions of cases, to the exclusion of its own observations, many cases would lead us far from what we understand to be the true object of the court.” In the instant case we have done nothing more than to state cogent reasons, not advanced by counsel, to sustain an assignment-, properly made and presented, to the effect that reversible error was committed in the giving of the appellee’s sixth instruction. It should be noted that the practice in this regard has been changed by Rule 1-7, not in effect at the time the case at bar was tried, which provides that no error with respect to the giving of instructions *100shall be available as cause for a new trial or on appeal except upon the specific objections made before argument.

The appellee’s instruction No. 6 was as follows:

“If, under the law and the evidence in this case, you find that the plaintiff is entitled to recover, it will then become your duty to fix or determine the amount of his damages. In determining the amount-of damages which you will award plaintiff, it is proper to consider every phase of his injuries, as charged in the complaint, and which you find have been established by a preponderance of the evidence. You may consider the kind and character of his injuries, whether the same are temporary or permanent, any physical pain or mental suffering or humiliation which the plaintiff has suffered or will suffer in the future, if the same be shown by the evidence. It is also proper for you to consider, if shown by the evidence, the effect of the injuries which plaintiff has sustained upon his ability to earn money after he becomes 21 years of age from any proper business, calling, or profession, and the kind and character of work which plaintiff will be prevented from doing after becoming 21 years of age, as a result of his injuries, if shown by the evidence, and from a consideration of all -the facts shown in evidence bearing upon said subject, it will then be your duty to award the plaintiff such sum as will fairly and fully compensate him for all his said injuries which you find from a preponderance of the evidence he has sustained, as charged in the complaint, as the direct and proximate result of any negligence of the defendant, which you find charged in the complaint and established by a preponderance of all the evidence in this case, not exceeding the sum demanded -—$80,000.00.”

In the second sentence of the above instruction the court advised the jury that, “In determining the amount of damages which you will award plaintiff, it is proper to consider every phase of his injuries, as charged in the complaint, and which you find have been established *101by a preponderance of the evidence.” All of the appellee’s injuries, including those received before as well as after the alleged omissions of negligence upon which the appellee must rely as a basis of recovery, were described in the complaint and evidence. The part of the instruction quoted did not undertake to limit the appellee’s damages to those proximately resulting from a violation of the duty resting on the appellant to exercise reasonable care to avoid an aggravation of the appellee’s injuries. “The rule deducible from (the) cases is that where facts are allowed to go in evidence which furnish an incorrect basis for the assessment of damages, an instruction which directs the jury to determine from all the facts, or all the evidence, the amount of recovery, is erroneous.” Stewart v. Swartz (1914), 57 Ind. App. 249, 253, 106 N. E. 719, 721. If the quoted sentence had been separately numbered and given as a complete instruction, it would clearly be erroneous.

The appellee contends, however, that the instruction is saved by the concluding part thereof wherein the jury was told that “. . . from a consideration of all the facts shown in evidence bearing upon said subject, it will then be your duty to award the plaintiff such sum as will fairly and fully compensate him for all his said injuries which you find from a preponderance of the evidence he has sustained, as charged in the complaint, as the direct and proximate result of any negligence of the defendant, which you find charged in the complaint and established by a preponderance of all the evidence in the case, not exceeding the sum demanded. . . .” The first quoted part of the instruction, though a misstatement of the law, is short, clear, and unambiguous, while the part last quoted is lengthy, involved, and dependent upon punctuation for its meaning. While a skilled grammarian *102or a lawyer, experienced in determining the meaning of written instruments, might, perhaps, conclude after careful study that the latter part of the instruction sufficiently modified or amplified the former, this cannot be the test for determining whether a jury usually composed of laymen was correctly instructed as to the law. Bearing in mind the theory upon which the case was apparently tried, we cannot escape the conviction that if instruction No. 6 standing alone was not positively erroneous it was, nevertheless, so confusing and misleading that it ought not to have been, given.

Relying upon the rule that instructions should be considered as a whole and that if as a whole they state the law correctly there is no reversible error even though a part of the instructions considered alone might be erroneous, the appellee urges that any error in instruction No. 6 was cured by the following instructions tendered by the appellant and given to the jury:

No. 7.

“Another charge of negligence in the complaint is failure to stop the escalator with reasonable promptness after the plaintiff’s position of peril should have been known. The Court instructs you that before any verdict could be based on this charge it would have to appear that such delay in stopping the escalator was the proximate cause of the plaintiff’s injury, and if you should believe from the evidence that the plaintiff was injured practically at the instant he fell down, and that his injuries were not materially increased by delay in stopping the escalator, then you would not be justified in basing any verdict against the defendant on this charge of negligence.”

No. 8.

“If you should believe from the evidence that the defendant was guilty of some delay in stopping the escalator after the plaintiff fell, and that such delay somewhat increased the plaintiff’s injuries, you could not base a verdict for the plaintiff on that *103ground as to anything except the extent to which the injuries were thereby increased, and if the evidence does not establish that the delay did increase the injuries, you could not award anything to the plaintiff on account of such delay, even if you find that such delay existed.”

An examination of the appellant’s instructions Nos. 7 and 8 discloses that they relate to the subject of negligence rather than the measure of damages. Both deal with the appellant’s duty to the appellee. Neither informs the jury as to the elements to be taken into consideration in assessing damages if it finds there was a violation of that duty. While these instructions go further than they should have gone with respect to the appellant’s liability and authorize a recovery on grounds not recognized in the principal opinion, we cannot regard them as curing the error in the appellee’s instruction No. 6.

The petition for rehearing is denied.

Roll, J., dissents.

Note.—Reported in 41 N. E. (2d) 195.

Dissenting Opinion

Roll, J.

I am unable to agree with the majority opinion. Because of the far reaching results of the rules laid down in the majority opinion, I feel impelled to state my views on the subject.

It will be noted that in the original opinion, the court discussed the question raised by appellant’s motion for judgment on the answers to the interrogatories. In discussing that question, the court set out the four separate acts of negligence charged in the complaint. It was there pointed out that no actionable negligence was proved as charged in the first and second charges, which charges had to do with the choice, construction, *104or manner of operating the escalator. The third charge of negligence had reference to the delay of appellant in stopping the escalator after it knew of appellee’s position. The 'majority opinion pointed out that, “the facts found by the jury conclusively establish that the appellant was not negligent with respect to the choice, construction, or manner of operating the escalator.”

-It is clearly made to appear that by the interrogatories submitted by the court and answered by the jury, that the jury appreciated the fact that appellant was not guilty of any acts of negligence which caused appellee’s initial injury, as charged in the first and second specifications of negligence; and on the other hand the jury was of the opinion that appellee suffered injuries which were the result of appellant’s negligence in failing to use due diligence to stop the escalator, after it had knowledge of appellee’s condition, as charged in the third specification of negligence. This is all very definitely pointed out in the first opinion in this case.

It will also be noted that appellee, in his complaint, very definitely separated the initial injury from the subsequent injuries by the four separate charges of negligence. The evidence introduced at the trial also .emphasized this separation of injuries, and this evidence was effective as disclosed by the answers to the interrogatories. But this is not all. Again this distinction between the initial injuries and the injuries sustained as a result of appellant’s negligence in failing to stop the escalator after appellee’s position of peril was known to it, was very clearly presented to the jury by instructions Nos. 7 and 8, tendered by appellant.

- This brings us to the consideration of instruction No. 6, as discussed by the majority opinion on rehear*105ing. Before discussing the merit of instruction No. 6, it should be observed that appellant made one and only-one objection to this instruction, namely: that said instruction, “improperly included humiliation as an element of damage.”

The only points and authorities urged in appellant’s original brief were directed to this single objection. The majority found that the instruction was not subject to the criticism made against it. Notwithstanding this fact, the majority of the court felt at liberty to reverse the judgment of the trial court upon grounds never urged either in its original brief or reply brief. The court cited only one authority for so doing, and that was the recent case of Keeshin Motor Express Co. v. Glassman (1942), 219 Ind. 538, 38 N. E. (2d) 847, in which opinion I did not concur. Neither did the court in the last cited case find any case to support it. Attorneys in that case as in this case were unable to find authority to support the proposition, and I have made diligent search on my own initiative and have been unable to find such a case. I do not think this practice should be followed, because, if this court is going to examine every instruction objected to by appellant for errors other than those pointed out in appellant’s brief, then appellee must necessarily be put to the task of suggesting in his answer brief every possible objection that could be urged to the instruction, and to meet such possible objection. Otherwise he runs the risk of the court’s reversing the case on a point never urged by appellant to the trial court or this court, and to which objection appellee has never had an opportunity to answer.

The general rule, as I understand it, is that all objections not specifically pointed out by appellant in his brief under points and authorities or discussed in *106his argument, are considered waived, and that appellee in his answer brief has a right to assume that the court will so consider them. The only possible exception to this general rule is, that where there is a general assignment of error, and the error is so apparent and so palpably wrong, that there could be no serious disagreement about the matter, then, in my judgment, the court would be justified in taking notice of such error and reverse the case, even though appellant had not pointed out specifically the real error. For instance, if an instruction, unquestionably erroneous, is given and was objected to by appellant, and he properly saves the question in his motion for a new trial, but in his brief he relies upon some untenable objection, the court might very properly refuse to shut its eyes to the obviously, erroneous instruction, and reverse the case. Appellee could not very well complain of such action by the court because he could not have sustained the instruction, had the proper error been pointed out by appellant in his brief. Consequently, he was not harmed by the action of the court. This court has even refused to go this far in some cases. In the case of P., C., C. & St. L. R. W. Co. v. O'Brien (1895), 142 Ind. 218, 219, 41 N. E. 528, the court said:

“The second paragraph of the complaint is fatally defective in its failure to state that the plaintiff was entitled to possession of the lots. The statute provides that: ‘The plaintiff in his complaint shall state that he is entitled to possession of the premises, particularly describing them, the interest he claims therein, and that the defendant unlawfully keeps him out of possession.’ Burns R. S. 1894, section 1066; R. S. 1881, section 1054; Leary v. Langsdale, 35 Ind. 74; McCarnan v. Cochran, 57 Ind. 166; Vance v. Schroyer, 77 Ind. 501; Levi v. Engle, Admr., 91 Ind. 330; Mansur v. Streight, 103 Ind. 358; Simmons v. Lindley, 108 Ind. 297; Miller v. Shriner, 87 Ind. 141.

*107“Strong as these authorities are in support of the error assigned on the ruling, overruling the demurrer to the second paragraph of the complaint for want of sufficient facts, the appellant has waived it by the failure to discuss the same in its brief.”

But quite a different situation arises, where the question involved is doubtful and questionable. Under such circumstances, I am not persuaded that this court should depart from the general rule and reverse the case on a point not raised by appellant in his brief, and on a point which appellee had no opportunity to be heard. But even had appellant properly questioned the sixth instruction in his brief, the question still remains, is the instruction erroneous, in the light of the facts presented in this case and as hereinbefore pointed out, and in the light of appellant’s instructions Nos. 7 and 8.

The'majority opinion says that instructions 7 and 8 relate to the subject of negligence rather than the measure of damages. I doubt if this assertion is accurate. Both the subject of negligence and damages are mentioned, but not the measure of damages. The measure of damages is set out in No. 6. It is obvious, however, that the court was attempting to get clearly in the minds of the jury that one of the acts of negligence alleged in the complaint was the failure to stop the escalator with reasonable promptness after the plaintiff’s position of peril should have been known. The court then told the jury that if the plaintiff was injured when he fell, and that his injuries were not materially increased by delay in stopping the escalator, then it should not find a verdict for plaintiff on this charge of negligence.

By instruction No. 8, the court in effect told the jury that if it found that the defendant did delay in stopping the escalator after plaintiff fell, and that *108the delay increased plaintiff’s injuries, then it should award plaintiff damages for the increase only. It is difficult for me to conceive how a jury could have been more clearly instructed as to just what injuries the plaintiff- was entitled to recover. If the jury was not confused as to what injuries it was measuring in damages, then instruction No. 6 was not erroneous. It is admitted by the majority opinion that the correct measure of damages was'stated in instruction No. 6 but concluded that instruction No. 6 confused the jury as to the injury for which it was assessing damages. As heretofore pointed out, the initial injury suffered by the fall, was not the result of any fault of appellant, and the jury so found by its answers to the interrogatories. Evidence as to the initial injury was introduced. Also evidence of the increased injury was offered. Plaintiff offered evidence as to how much of his fingers was cut off by the initial injury, and then showed how much additional injury resulted by not stopping the escalator.

When instruction No. 6 is taken in connection with appellant’s own instructions Nos. 7 and 8, and as applied to the facts of this case as they appear from the record, in my judgment instruction No. 6 is not erroneous.

For the reasons above set out, I am unable to concur in the majority opinion.

Note.—Reported in 41 N. E. (2d) 356.

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 *442 the 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 “[t]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.

Bettman, J.

This matter is before the court on defendant’s motion for judgment on the pleadings. The gravamen of plaintiff’s petition is that the defendants permitted the minor plaintiff, a seventeen-year-old-female student from Chicago, Illinois, enrolled at the University, to become associated with criminals, to be seduced, to become a drug user and further allowed her to be absent from her dormitory and failed to return her to her parents’ custody on demand.

In our opinion, plaintiffs completely misconstrue the *148duties and functions of a university. A university is an institution for the advancement of knowledge and learning. It is neither a nursery school, a boarding school nor a prison. No one is required to attend. Persons who meet the required qualifications and who abide by the university’s rules and regulations are permitted to attend and must be presumed to have sufficient maturity to conduct their own personal affairs.

We know of no requirement of the law and none has been cited to us placing on a university or its employees any duty to regulate the private lives of their students, to control their comings and goings and to supervise their associations.

We do not believe that R. C. 3345.21, requiring a university to maintain “law and order” on campus, nor R. C. 2151.41, making it a crime to contribute to the delinquency of a child, have any bearing on the fact situation before us.

For these reasons we hold that plaintiffs have failed to state a cause of action and defendants ’ motion for judgment on the pleadings should be granted.

Having so determined, it is not necessary to consider the defense that the university and its employees are immune from suit.

Nora Barry Fischer, U.S. District Judge

Table of Contents

I. Introduction...962

II. Background...962

III. Jurisdiction...963

IV. Procedural history...963

V. Standard of review...964

VI. Discussion...965

A. Tina Hribal and Harold Hribal's motion to dismiss (Doc. No. 12)...965

B. Capital Asset Protection's motion to dismiss (Doc. No. 20)...967

C. Franklin Regional School District's motion to dismiss (Doc. No. 29)...969

1. Substantive due process right to bodily integrity...970

2. The state-created danger doctrine...970

3. Monell liability...976

VII. Conclusion...977 *962I. Introduction

More than 20 years ago, the Tenth Circuit Court of Appeals stated: "We are poignantly aware of the seeming transformation of our public schools from institutions of learning into crucibles of disaffection marred by increasing violence from which anguish and despair are often brought to homes across the nation." Graham v. Indep. Sch. Dist. No. I-89 , 22 F.3d 991, 992 (10th Cir. 1994). It is disheartening, to say the least, that this statement still rings true today. In yet another tragic - and indeed senseless - instance of school violence, this matter is now before the Court.

Plaintiff Gregory Keener brings this cause of action against defendant Alexander Hribal, a former classmate of his, who brought two kitchen knives to school and proceeded to stab 20 of his classmates in a seven-minute rampage. Plaintiff barely survived his life-threatening injury. In addition to suing the perpetrator, he sues Alex Hribal's parents, along with the school district and a private security company that performed services at the school.

Plaintiff raises various state law claims for negligence and battery, as well as federal civil rights claims under 42 U.S.C. § 1983. Each of the defendants now brings a motion to dismiss for failure to state a claim. Doc. Nos. 12, 20, and 29. For the reasons that follow, both the parents' motion and the security company's motions will be denied. The school district's motion will be granted. Plaintiff will have 21 days to file an amended complaint that states a viable cause of action under Section 1983 ; otherwise, this case will be remanded to the state courts.

II. Background

Plaintiff Gregory Keener brings this cause of action against the following defendants: Alexander Hribal; Tina and Harold Hribal - the parents of Alexander Hribal (the "parents"); Capital Asset Protection, Inc. ("Capital"); and Franklin Regional School District (the "school district"). As mentioned above, the suit arises out of a stabbing rampage perpetrated by Alexander Hribal, which occurred on April 9, 2014. At approximately 7:00 a.m., Alexander Hribal arrived at Franklin Regional High School (the "school") armed with two 12-inch kitchen knives taken from his parents' home. Doc. No. 1-2 ¶ 13. Alexander Hribal stabbed 20 students and a security guard in the attack. Id. ¶ 14. One of those students was plaintiff, who suffered severe injuries. Plaintiff barely survived; he was hospitalized for nearly 40 days, underwent several surgeries, and lost half the function of his liver and gallbladder. Id. ¶¶ 18-23.

Plaintiff brings claims against Alexander Hribal for battery (Count I), intentional infliction of emotional distress (Count II), negligent infliction of emotional distress (Count III), and negligence (Count IV). In addition, plaintiff brings a negligence claim (Count V)1 against the parents. With respect to the parents, plaintiff asserts that they acted negligently because they knew that their child was mentally ill and potentially dangerous, yet they failed to take adequate steps to prevent the attack. Id. ¶¶ 48-58.

*963Plaintiff also brings a negligence claim (Count VI) against Capital Asset Protection, Inc. The school district hired Capital to perform security services for all buildings and schools in the district, including Franklin Regional High School. Id. ¶¶ 9-10. According to plaintiff, Capital assigned just one security guard to perform security services at the school. The guard, who was 70 years old at the time, was "grossly unqualified, ill-equipped and physically incapable of deterring or stopping the attack, or any other legitimate safety threat to students." Id. ¶ 25. When the attack occurred, the guard allegedly yelled to students to "get out of the building." Id. ¶ 24. The guard was stabbed during the incident. Id.

With respect to the claim against Capital Asset Protection, Inc., plaintiff alleges numerous theories for negligence, to include its failure to implement adequate safety procedures, its failure to exercise reasonable care in selecting employees to perform security services, and its failure to adequately train personnel. Id. ¶ 63. Plaintiff also seeks punitive damages, asserting that Capital's failure to develop and implement adequate safety procedures constituted "willful and wanton indifference" toward his health and well-being. Id. ¶ 64.

Finally, plaintiff brings two constitutional claims against Franklin Regional School District via 42 U.S.C. § 1983. First, plaintiff asserts in Count VII that the school district violated his constitutional right to bodily integrity under the Fourteenth Amendment, which the Court interprets as a municipal liability claim. He then asserts in Count VIII another Fourteenth Amendment due process claim under a "state-created danger" theory. In short, plaintiff maintains that the school district adopted "a practice, custom and policy of deliberate indifference" to his safety and welfare; he further contends that the school district failed to hire a competent and prepared security company, despite its knowledge that the students faced "substantial risk of serious harm or death" as a result of an attack like the one that occurred. See generally id. ¶¶ 65-90. Plaintiff also seeks punitive damages against the school district. Id. ¶ 91.

III. Jurisdiction

The Court exercises subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1367. Venue is proper under 28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to the claims occurred in this judicial district.

IV. Procedural history

Plaintiff filed his complaint in the Court of Common Pleas of Westmoreland County on May 14, 2018. Doc. No. 1 at 2. The school district filed a notice of removal on July 6, 2018.2 Id.

With respect to the instant motions, the parents filed a motion to dismiss on July 16, 2018. Doc. No. 12. Capital filed a motion to dismiss on July 20, 2018. Doc. No. 20. Finally, the school district filed a motion *964to dismiss on August 13, 2018. Doc. No. 29. On September 18, 2018, the Court held oral argument on these motions. Doc. No. 37. The matters have been fully briefed (see Doc. Nos. 13, 21, 24, 25, 27, 28, 30, 31, 32, and 33) and are ripe for disposition.

V. Standard of review

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim satisfies the plausibility standard when the facts alleged "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Burtch v. Milberg Factors, Inc. , 662 F.3d 212, 220-21 (3d Cir. 2011) (citing Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). While the plausibility standard is not "akin to a 'probability requirement,' " Twombly , 550 U.S. at 556, 127 S.Ct. 1955, it does require a pleading to show "more than a sheer possibility that a defendant has acted unlawfully," Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Avoiding dismissal under Rule 12(b)(6) thus requires a pleading party's complaint to provide "enough factual matter" to allow the case to move beyond the pleading stage of litigation; the pleader must "nudge his or her claims across the line from conceivable to plausible." Phillips , 515 F.3d at 234-35 (quoting Twombly , 550 U.S. at 556, 570, 127 S.Ct. 1955 ) (brackets omitted).

In deciding a 12(b)(6) motion, courts in this circuit apply a three-step analysis: (1) "it must 'tak[e] note of the elements [the] plaintiff must plead to state a claim;' " (2) "it should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth;' " and, (3) "[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Connelly v. Lane Construction Corp. , 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal , 556 U.S. at 675, 679, 129 S.Ct. 1937 ; Burtch v. Milberg Factors, Inc. , 662 F.3d 212, 224 (3d Cir. 2011) ).

In making the third determination in this three-step analysis, the Court must be mindful that the matter pleaded need not include "detailed factual allegations," Phillips , 515 F.3d at 231 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ), and, as noted, it must construe all alleged facts, and draw all inferences gleaned therefrom, in the light most favorable to the non-moving party. Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc. , 343 F.3d 651, 653 (3d Cir. 2003) ). Moreover, a pleading party need only "put forth allegations that 'raise a reasonable expectation that discovery will reveal evidence of the necessary element[s].' " Fowler v. UPMC Shadyside , 578 F.3d 203, 213 (3d Cir. 2009) (quoting Graff v. Subbiah Cardiology Assoc., Ltd. , No. 08-207, 2008 WL 2312671 (W.D. Pa. June 4, 2008) ). A well-pleaded complaint, even when "it strikes a savvy judge that actual proof of [the] facts is improbable," will not be dismissed if the pleader demonstrates that his or her claim is plausible. Phillips , 515 F.3d at 234 (quoting Twombly , 550 U.S. at 555-56, 127 S.Ct. 1955 ).

Nevertheless, the facts provided must raise the expectation of relief above a purely speculative level, which includes more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Phillips , 515 F.3d at 231 (quoting Twombly , 550 U.S. at 554-56, 127 S.Ct. 1955 ). Rule 8(a)(2) "requires a 'showing,' rather than a blanket assertion, of an *965entitlement to relief." Id. "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Fowler , 578 F.3d at 210 (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ).

VI. Discussion

With that legal framework in mind, the Court now turns to each of the motions to dismiss.

A. Tina Hribal and Harold Hribal's motion to dismiss (Doc. No. 12)

As discussed above, plaintiff brings one state law claim (Count V) against the parents. He asserts that they were negligent in failing to prevent the attack despite having knowledge of their son's mental illness and his propensity for violence. See generally Doc. No. 1-2 ¶¶ 53-58. In their motion to dismiss, the parents argue that a parent-child relationship, alone, is insufficient to render them liable for the tortious actions of their child. Doc. No. 12 at 2. To that end, they claim that they did not have the ability or the opportunity to control their child, nor did they have knowledge of his plan to carry out the attack. Id. Furthermore, the parents seek to dismiss plaintiff's claim for punitive damages. Id. at 4.

It is well-established that a federal court shall apply Pennsylvania substantive law and federal procedural rules to the resolution of state law claims. See Erie Railroad Company v. Tomkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Accordingly, Pennsylvania law governs the disposition of the plaintiff's state law claims.

Ordinarily, "[t]he mere relation of parent and child imposes no liability upon the parent for the torts of the child." J.H. ex rel. Hoffman v. Pellak , 764 A.2d 64, 66 (Pa. Super. Ct. 2000) (citing Condel v. Savo , 350 Pa. 350, 39 A.2d 51, 52 (1944) ; Maxwell v. Keas , 433 Pa.Super. 70, 639 A.2d 1215, 1216 (1994) ). Parents, however, are not always insulated from liability for tortious acts of their children. "Parents may be liable ... where negligence on the part of the parents makes the injury possible." J.H. , 764 A.2d at 66 (citing Frey By & Through Frey v. Smith By & Through Smith , 454 Pa.Super. 242, 685 A.2d 169, 174 (1996) ); see also K.H. v. J.R. , 573 Pa. 481, 826 A.2d 863, 873 (2003). "If the injury ought to have been foreseen by the parents, their negligence is the proximate cause of the injury." Maxwell , 639 A.2d at 1215. Parental duty to supervise a child has been characterized as a duty to "exercise the control which they [the parents] have over their child, when they know, or in the exercise of due care should know, that injury to another is a natural and probable consequence." Condel , 39 A.2d at 53.

Regarding the supervisory responsibilities of a parent, Pennsylvania Courts have adopted the Restatement (Second) of Torts, Section 316:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(a) knows or has reason to know that he has the ability to control his child, and

(b) knows or should know of the necessity and opportunity for exercising such control.

RESTATEMENT (SECOND) OF TORTS § 316 ; see J.H. ex rel. Hoffman v. Pellak , 764 A.2d 64, 66 (Pa. Super. Ct. 2000) (stating that Pennsylvania has adopted Section 316 ); K.H. v. J.R. , 573 Pa. 481, 826 A.2d 863, 873 (2003) (quoting Section 316 with approval).

*966The "ability" and "opportunity" elements do not require a parent to be physically present at the "exact instant of the tort"; nevertheless, there must be some "present ability to discipline." K.H. , 826 A.2d at 875. Along these lines, parental liability is conditioned on the parent having (1) notice of a specific type of harmful conduct, and (2) a meaningful opportunity to interfere with it at the relevant time. J.H. , 764 A.2d 64, 67 (Pa. Super. Ct. 2000) (collecting cases).

In reviewing the complaint, the Court finds that the negligence claim against the parents is legally sufficient to survive a challenge under Rule 12(b)(6). A parent has a duty of reasonable care to prevent harm to another when that harm is a natural and probable consequence. The necessary elements center on (1) notice of a specific type of harmful conduct and (2) an ability to interfere at the relevant time. Plaintiff alleges in the complaint that the parents were "aware of their son's intent to carry out this attack, and were otherwise acutely aware of [their son's] serious mental illness(es) and propensity for violence prior to the attack." Doc. No. 1-2 ¶ 28. Plaintiff avers several times that the parents had actual knowledge of their son's mental illness and violent tendencies prior to the attack. Id. ¶ 28, 55, 56, 57. Plaintiff further alleges that the parents knew, or reasonably should have known, about their son's manifesto where he plotted his attack prior to its execution. Id. ¶ 57. These well-pleaded facts, when viewed in the light most favorable to plaintiff, suggest that the parents had notice of the potential harm.

Furthermore, regarding the parents' ability and opportunity to prevent the harm, plaintiff asserts that the weapons used in the attack (i.e., the 12-inch knives) came from the parents' home. Id. ¶ 12. Plaintiff further claims that the parents could have prevented the attack by taking reasonable steps such as (1) keeping their son out of school; (2) ensuring he took his duly prescribed medications; (3) involuntarily committing their son to an inpatient mental health facility; and/or (4) otherwise taking additional steps to seek out appropriate medical treatment. Id. ¶ 56. As discussed above, the ability and opportunity to prevent the harm does not require the parents to be physically present at the time of the attack; instead, what matters is that the parents had some opportunity to control their child at the relevant time. Here, the relevant time would have been prior to the attack, as plaintiff contends in the complaint.

Although plaintiff does not provide significant details to support his claim against the parents, the well-pleaded factual allegations do render the claim plausible. The complaint includes more than mere labels and conclusions. Moreover, the pleading standard does not require "detailed factual allegations." Phillips v. Cty. of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008). Rather, a pleading party need only "put forth allegations that 'raise a reasonable expectation that discovery will reveal evidence of the necessary element[s].' " Fowler v. UPMC Shadyside , 578 F.3d 203, 213 (3d Cir. 2009).

In their motion to dismiss, and at oral argument, parents' counsel spent considerable time discussing Dorley v. S. Fayette Twp. Sch. Dist. , 129 F.Supp.3d 220, 247 (W.D. Pa. 2015) (Hornak, J.). That case involved a high school student who participated in a training camp for members of the school's football team. The student broke his arm after an older, much larger player injured him in a one-on-one blocking drill during the camp. There, the court dismissed a negligence claim against the parents of the older child, finding that plaintiff failed to allege any facts indicating that the parents had any reason to know *967that their son was so reckless, aggressive, or violent that he should not be allowed to participate in a contact sport, or that they had the ability and opportunity to control him when he was under the supervision of his coaches at the camp. Id. Here, that case is distinguishable. Plaintiff alleges that the parents had been acutely aware of their son's violent propensities prior to the attack. There was no such allegation in Dorley .3

As an additional matter, the parents move to dismiss or strike plaintiff's request for punitive damages. Doc. No. 12 at 3. Under Pennsylvania law, punitive damages are proper "only in cases where the defendant's actions are so outrageous as to demonstrate willful, wanton or reckless conduct." Hutchison ex rel. Hutchison v. Luddy , 582 Pa. 114, 870 A.2d 766, 770 (2005). Although ordinary negligence will not support an award of punitive damages, they are appropriate "for torts sounding in negligence when the conduct goes beyond mere negligence and into the realm of behavior which is willful, malicious, or so careless as to indicate wanton disregard for the rights of the parties injured." Id. at 770 (citing RESTATEMENT (SECOND) OF TORTS § 908 (1979) ); see also Moran for & on Behalf of Estate of Moran v. G. & W.H. Corson, Inc. , 402 Pa.Super. 101, 586 A.2d 416, 422 (1991). "The state of mind of the actor is vital." Hutchison , 870 A.2d at 770 (internal citations omitted). To that end, punitive damages must be supported by evidence "sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk." Id. at 772.

Here, plaintiff has pled sufficient facts that, if proven at trial, could support the imposition of punitive damages. Plaintiff has pled that the parents knew about their son's intent to carry out the attack, and that they were aware of his serious mental illness and propensity for violence. Doc. No. 1-2 ¶¶ 28, 55, 56. Furthermore, plaintiff alleges that the parents knew about their son's manifesto before the attack. Id. ¶ 57. Yet, despite having knowledge of the serious risk of harm to students, the parents failed to act in conscious disregard of that risk. Id. These allegations, if proven, may support a claim for punitive damages. The Court thus finds that dismissing plaintiff's punitive damages claim at this stage of litigation would be premature.

B. Capital Asset Protection's motion to dismiss (Doc. No. 20)

The Court now considers plaintiff's punitive damages claim against Capital Asset Protection, Inc., found in Count VI of the complaint. Capital argues that plaintiff has failed to state a claim for punitive damages because (1) he fails to allege that Capital knew or reasonably should have known about the risk of the stabbing rampage; (2) the complaint, at most, raises issues of inadequate safety procedures, which does not amount to recklessness; and (3) the 70-year-old employee's conduct, as pled in the complaint, was not outrageous. See Doc. No. 21 at 3-4.

As discussed previously, punitive damages are only permissible for outrageous acts. The plaintiff must demonstrate that "(1) a defendant had a subjective appreciation of the risk of harm to which the *968plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk." Hutchison , 870 A.2d at 772 ; see also Stroud v. Abington Mem'l Hosp. , 546 F.Supp.2d 238, 257 (E.D. Pa. 2008) ("[P]rovided the plaintiff demonstrates that the defendant acted with at least a mental state of recklessness (conscious disregard), punitive damages may be recovered on a claim sounding in negligence.").

Here, plaintiff alleges that Capital was hired by the school district to perform security services for the school. Doc. No. 1-2 ¶ 11. He further pled that Capital hired a 70-year-old guard who was unarmed and physically incapable of deterring any legitimate safety threats at the school. Id. ¶¶ 24, 25. In addition, plaintiff pled in some factual detail how the company was ineffective at preventing or stopping the attack. Id. ¶¶ 10-30, 62. Among other things, plaintiff pled that

(1) Capital failed to develop or implement adequate safety procedures;

(2) Capital failed to properly select, hire, retain, monitor, supervise, and evaluate its employees; and

(3) The security guard intentionally shirked his duty by failing to take appropriate mitigating action during the attack.

See generally id. ¶ 62. Plaintiff alleges that these negligent acts establish willful and wanton indifference and conscious disregard for his health and well-being. See id.

The Court finds that plaintiff has sufficiently pled a claim for punitive damages against Capital to survive a motion to dismiss. Read in the light most favorable to plaintiff, these averments sufficiently allege that Capital knew of the risk of harm to plaintiff - given that Capital was specifically hired to perform security services for the school - and that Capital's actions were sufficiently outrageous based on its reckless mental state.4 While the Court declines to dismiss plaintiff's punitive damages claim at the pleading stage, it certainly acknowledges Capital's well supported argument that plaintiff faces a substantial burden to prove his entitlement to punitive damages in this case. This contention can be raised again at a later stage of litigation.

Finally, the Court briefly addresses Capital's reliance on Feld v. Merriam , 506 Pa. 383, 485 A.2d 742 (1984). There, defendant sought to hold a landlord liable for criminal acts of unknown third parties. The Court held that the trial court erred in submitting the issue of punitive damages to the jury because the type of danger at issue was not "an easily perceptible one." Id. at 748. "In deciding whether to impose punitive damages a court should not look to the third party's criminal conduct, which in this case was truly outrageous; a court should not look at the end result, which in this case also was outrageous; rather, the court should examine the actor's conduct." Id.

Here, Feld is instructive on punitive damages. Nevertheless, the Feld ruling *969was not made at the pleading stage. The court in that instance had the benefit of a fully developed record, including a jury verdict. Furthermore, at this stage, this Court need not determine whether as a matter of law Capital acted with the state of mind necessary to impose punitive damages. "[T]he clear trend in this Circuit is to permit adequately pled claims of punitive damages based on negligence to proceed to discovery." Young v. Westfall , No. 406-CV-2325, 2007 WL 675182, at *3 (M.D. Pa. Mar. 1, 2007). Accordingly, Capital's motion to dismiss will be denied.

C. Franklin Regional School District's motion to dismiss (Doc. No. 29)

This matter is in federal Court based on alleged civil rights violations. Plaintiff brings two claims pursuant to 42 U.S.C. § 1983. Specifically, in Count VII, he asserts a substantive due process violation under the Fourteenth Amendment for "injury to bodily integrity." Although not expressly stated in these terms, the Court interprets the allegations in Count VII as raising a municipal liability claim under Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and its progeny. In Count VIII, plaintiff further alleges a substantive due process violation resulting from the "state-created danger" doctrine.5 The school district alleges that each count fails to state a claim.

The pertinent language of 42 U.S.C. § 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 does not create any substantive rights. Instead, the statute provides a remedy for violations of constitutional rights where the alleged violation was committed by a person acting under the color of state law. Mark v. Borough of Hatboro , 51 F.3d 1137, 1141 (3d Cir.), cert. denied, 516 U.S. 858, 116 S.Ct. 165, 133 L.Ed.2d 107 (1995) ; Kneipp v. Tedder , 95 F.3d 1199, 1204 (3d Cir. 1996) ; Moore v. Tartler , 986 F.2d 682, 685 (3d Cir. 1993). "The first step in evaluating a Section 1983 claim is to identify the exact contours of the underlying right said to have been violated and to determine whether the plaintiff has alleged a deprivation of a constitutional right at all."

*970Morrow v. Balaski , 719 F.3d 160, 166 (3d Cir. 2013) (internal citations and quotations omitted).

1. Substantive due process right to bodily integrity

Here, plaintiff asserts violations of his substantive due process rights under the Fourteenth Amendment, specifically his right to bodily integrity.6 Doc. No. 1-2 ¶¶ 65-90. The Supreme Court has long established that, "[a]s a general matter, ... a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." DeShaney v. Winnebago Cnty. Dep't of Social Servs. , 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Indeed, "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors ... Its purpose was to protect the people from the State, not to ensure that the State protected them from each other." Id.

Although the state generally has no affirmative duties of care and protection, there are two exceptions. The first is known as the "special relationship" exception. It applies when the state "takes a person into custody and holds him there against his will." Id. at 199-200, 109 S.Ct. 998.7 The second exception, known as the "state-created danger" doctrine, applies when "the state's own actions create the very danger that causes the plaintiff's injury." Morrow v. Balaski , 719 F.3d 160, 167 (3d Cir. 2013) ; Kneipp v. Tedder , 95 F.3d 1199, 1201 (3d Cir. 1996). Kneipp was the first Third Circuit case applying the state-created danger doctrine; there, the Court held that a private citizen could assert a substantive due process violation when police officers themselves created the danger that caused the injury. Id. at 1213.

2. The state-created danger doctrine

To prevail under the state-created danger doctrine, a state actor must "create or enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment right to substantive due process." Morrow v. Balaski , 719 F.3d 160, 177 (3d Cir. 2013) (emphasis in original). Plaintiff must prove the following four elements:

1) the harm ultimately caused was foreseeable and fairly direct;

2) a state actor acted with a degree of culpability that shocks the conscience;

3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts, or a member of a discrete class of persons subjected *971to the potential harm brought about by the state's actions, as opposed to a member of the public in general; and

4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.

Id. (quoting Bright v. Westmoreland Cnty. , 443 F.3d 276, 281 (3d Cir. 2006) ) (citations and internal quotation marks omitted).

In applying these elements to the instant case, the Court finds plaintiff has failed to state an actionable claim.

As to the first element, foreseeability "requires that officials were actually aware, and thus on notice, of the risk of harm." Id. at 233 (citing Henry v. City of Erie , 728 F.3d 275, 282 (3d Cir. 2013) ); Gremo v. Karlin , 363 F.Supp.2d 771, 784 (E.D. Pa. 2005) ("Under Third Circuit jurisprudence, a harm is foreseeable when a state actor has actual awareness, based on concrete information, of a risk of harm to an individual or class of individuals such that the actor is on notice that his or her act or failure to act significantly enhances that risk of harm."). "Fairly direct" refers to actions that cannot be "separated from the ultimate harm by a lengthy period of time and intervening forces and actions." Id. (quoting Henry , 728 F.3d at 285 ) (internal quotations omitted).

Here, plaintiff argues that the foreseeability element is satisfied because (1) the school district was allegedly aware of Hribal's serious mental illness and violent propensities, and (2) the school district knew that Capital would provide inadequate security. Doc. No. 32 at 11. In his complaint, plaintiff avers, without any supporting facts, that the school district was "aware" of Hribal's violent tendencies and mental illness. Doc. No. 1-2 ¶ 29. He further asserts that the school district knew Capital would provide inadequate security because Capital hired a 70-yearold security guard. Id. ¶¶ 24-25; Doc. No. 32 at 11. Plaintiff further contends that the school district hired Capital as mere "window dressing" to placate students and parents, without any intention of providing meaningful security to students. Doc. No. 1-2 ¶ 86.

Assuming all of the allegations in the complaint are true, and when viewed in the light most favorable to plaintiff, the Court finds that they do not rise to the level of foreseeability as contemplated by the Third Circuit. Nothing about these allegations suggest that the school district had any indication that Hribal would bring knives to school and stab 20 of his classmates. The complaint makes no mention of any previous instances of violence - nor does it provide any concrete information of any kind - suggesting that the school had reason to know Hribal would attack his classmates, particularly in this matter.8 See, e.g, Mohammed v. Sch. Dist. of Phila. , 355 F.Supp.2d 779, 784 (E.D. Pa. 2005), aff'd, 196 F. App'x 79 (3d Cir. 2006) ("The cases in which the Courts have found this element satisfied generally involve situations where a specific harm to a specific person was foreseeable."); see also *972D.M. by Sottosanti-Mack v. Easton Area Sch. Dist. , No. CV 17-1553, 2017 WL 6557560, at *4 (E.D. Pa. Dec. 22, 2017) (holding that a student who stabbed a classmate in the face with a pencil was not foreseeable harm, despite the school knowing that the student had previously assaulted fellow classmates); Gayemen v. Sch. Dist. of the City of Allentown , No. 14-CV-1518, 2016 WL 3014896, at *9 (E.D. Pa. May 26, 2016), aff'd sub nom. Gayemen v. Sch. Dist. of City of Allentown, 712 F. App'x 218 (3d Cir. 2017) (holding that the foreseeability element was not satisfied when plaintiff failed to offer any evidence demonstrating that school officials were aware assailants had previously assaulted anyone else in the school). Even if school officials had reason to believe Hribal had violent propensities or some underlying mental illness, plaintiff must plead more to show that those officials had actual awareness , based on some type of concrete information, that the type of harm in this case was foreseeable and that the school district's affirmative conduct would significantly increase the risk of harm.

Similarly, plaintiff fails to plead that the harm was a "fairly direct" result of any school official's affirmative acts. "A plaintiff must plead that the state officials' actions precipitated or were the catalyst for the harm for which the plaintiff brings suit. It is insufficient to plead that state officials' actions took place somewhere along the causal chain that ultimately led to the plaintiff's harm." D.M. by Sottosanti-Mack v. Easton Area Sch. Dist. , No. CV 17-1553, 2017 WL 6557560, at *4 (E.D. Pa. Dec. 22, 2017) (quoting Henry v. City of Erie , 728 F.3d 275, 285 (3d Cir. 2013) ) ("internal quotations omitted".) As will be discussed, infra , plaintiff has failed to allege any affirmative acts that would give rise to liability under the state-created danger doctrine. In this Court's estimation, the school district's actions (or lack thereof) - that is, its alleged failure to implement proper security measures, and its purported knowledge that the 70-year-old security guard was incapable of stopping a security threat - do not provide a sufficient basis to establish causation.

With respect to the second element, state officials must act "with deliberate indifference or the intent to cause harm." Doe v. Plum Borough Sch. Dist. , No. 2:17-CV-00032, 2017 WL 3492542, at *6 (W.D. Pa. Aug. 15, 2017), dismissed, No. 17-2899, 2018 WL 1224409 (3d Cir. Jan. 17, 2018). Deliberate indifference exists when a party has consciously disregarded a substantial risk of serious harm, or when a risk of harm is so patently obvious that the party should have known of it. Id. "Under this standard, the danger must have been foreseeable to the state actors and the state's actions must evince a willingness to ignore that foreseeable risk of danger." Gremo v. Karlin , 363 F.Supp.2d 771, 788 (E.D. Pa. 2005) (quoting Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 910 (3d Cir. 1997) ) (internal quotations omitted).

As to the second element, plaintiff argues that the school district acted with culpability that shocks the conscience because (1) it had plenty of opportunity to put in place safety measures that could have prevented Hribal from carrying out the attack, and (2) it hired Capital to placate parents and students without intending to provide real security. Doc. No. 32 at 12. More generally, plaintiff makes a policy argument that the school district knew of the "extreme danger associated with mass school violence," and thus its actions (or lack thereof) are sufficiently "conscience shocking." Id. at 13.

The Court disagrees that the allegations in the complaint establish the requisite degree of culpability to state a claim under the second element. "This standard requires a willingness to ignore a *973foreseeable danger or risk ... It necessarily follows that as threshold matter, the danger must be foreseeable to demonstrate deliberate indifference." D.M. by Sottosanti-Mack v. Easton Area Sch. Dist. , No. CV 17-1553, 2017 WL 6557560, at *5 (E.D. Pa. Dec. 22, 2017) (internal quotations and citations omitted). As discussed above, plaintiff has failed to establish on the face of the complaint that school officials acted in willful disregard of a foreseeable danger. As this Court has previously explained, deliberate indifference occurs when a state official acts in conscience disregard of a substantial risk of harm, or when that risk is so "patently obvious that the party should have known of it." Doe v. Plum Borough Sch. Dist. , No. 2:17-CV-00032, 2017 WL 3492542, at *6 (W.D. Pa. Aug. 15, 2017), dismissed, No. 17-2899, 2018 WL 1224409 (3d Cir. Jan. 17, 2018) ; see also L.R. v. Sch. Dist. of Philadelphia , 836 F.3d 235, 246 (3d Cir. 2016).

Plaintiff avers that the school district (1) failed to properly implement and maintain safety measures in the event of emergencies, despite knowing that students faced a substantial risk of harm; (2) failed to ensure that Capital provided adequate security; and (3) hired Capital as a means to placate parents and students - mere "window dressing" for security. Despite plaintiff's creative arguments, these allegations, at most, amount to negligence, which is insufficient to establish culpability that shocks the conscience. Moreover, to the extent that plaintiff raises policy arguments about schools being aware of the risks of mass violence, this Court is not in a position to expand the confines of the Constitution on grounds of policymaking. Rather, state and federal legislatures retain the authority to respond to these kinds of situations, and to fashion appropriate legal remedies. Although this Court is naturally moved by the horrific circumstances surrounding plaintiff's injury, it is prudent to remember the reasoning in DeShaney :

Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for [plaintiffs] to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by [the young boy's] father.

489 U.S. 189, 202-03, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). A court may have sincere sympathy for plaintiff, his family, and all the other victims of this tragedy, but it is well to remember that Alexander Hribal, not the school district, inflicted the blows in this case.

The third element asks whether there is "some relationship"9 between the state actor and the plaintiff. "In the state-created danger context, the relationship between a state and a plaintiff need not be 'custodial' ... but rather requires contact between the parties such that the plaintiff was a foreseeable victim in tort." Doe v. Plum Borough Sch. Dist. , No. 2:17-CV-00032, 2017 WL 3492542, at *7 (W.D. Pa. Aug. 15, 2017) (quoting Knellinger v. York Street Prop. Dev., LP , 57 F.Supp.3d 462, 470 (E.D. Pa. 2014) ).

Here, plaintiff has pled sufficient facts to establish a relationship under the third element. Plaintiff was a member of a discrete *974class of persons - students at Franklin Regional High School - such that he could be viewed as a foreseeable victim in tort. Doc. No. 1-2 ¶¶ 2, 3, 11. Gayemen, 2016 WL 3014896, at *9 ("This Court ... concludes that [plaintiff's] attendance at Allen [High School] constituted a relationship between him and the School District such that he would be a foreseeable victim of an alleged danger created by the School District."); see also Gremo v. Karlin , 363 F.Supp.2d 771, 789 (E.D. Pa. 2005).

Finally, as to the fourth element, there must be "an allegation and subsequent showing that state authority was affirmatively exercised." Bright v. Westmoreland Cty. , 443 F.3d 276, 282 (3d Cir. 2006). "It is misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause." Id.

This fourth prong can be difficult to apply. Courts have readily admitted that "the line between action and inaction may not always be clear." Bright, 443 F.3d at 282 ; see also Morrow v. Balaski , 719 F.3d 160, 177 (3d Cir. 2013), as amended (June 14, 2013). The Third Circuit has elaborated, however, that the issue raised under the fourth element is whether "the state actors 'used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.' " Bright , 443 F.3d 276, 283 (3d Cir. 2006) (internal citations and quotations omitted). Ultimately, the fourth element intends to distinguish cases where state officials might have done more, from cases where officials created or increased the risk itself. Morrow , 719 F.3d 160, 179 (3d Cir. 2013).

Even if plaintiff has pled sufficient facts to establish the first three elements, plaintiff makes no allegations that satisfy the fourth prong. This insufficiency, alone, warrants dismissal of the claim. Giovinco v. Foster , No. CIV.A. 3:CV-03-1569, 2003 WL 23573864, at *3 (M.D. Pa. Dec. 15, 2003). As discussed above, plaintiff attempts to couch inaction as affirmative acts. To the extent that any of the allegations in the complaint raise potential affirmative conduct - for example, school officials hiring a security guard - these acts in no way increased the risk of harm to plaintiff. Taken as true and viewed in the light most favorable to plaintiff, the facts establish that the school district:

• failed to develop and implement adequate safety procedures in the event of an emergency (Doc. No. 1-2 ¶ 71, 72);

• failed to ensure Capital provided adequate security (id. ¶ 75); and

• retained Capital knowing that it might not provide adequate protection in the event of an emergency (id. ¶ 86).

Under the most generous reading of the complaint, plaintiff has also established that school officials knew about Hribal's violent propensities and took no action. Id. ¶ 29.

These allegations do not give rise to an actionable claim because they align with those cases where officials might have done more, as opposed to those cases where officials created or increased the risk of harm itself. Morrow , 719 F.3d 160, 179 (3d Cir. 2013).

Instructive on this analysis are two seminal Third Circuit opinions addressing the affirmative-action requirement. In Morrow , parents complained to school officials that a student had been bullying their two daughters. The bully even physically attacked those children in the school's lunchroom. Id. at 164. The school suspended the bully for three days. Id. Nevertheless, the bully continued to physically harass the children. The harassment continued to escalate;

*975at some point, the school district was given two "no-contact" orders after the bully was placed on probation by a juvenile criminal court based on previous assaults of the Morrow children. Id. School officials still took no action, and one of the Morrow children was again assaulted. Ultimately, the school district suggested that the parents enroll their daughters in a different school.

The Morrow Court ultimately found that the state-created danger exception did not apply because the parents failed to allege any affirmative action by school administrators that made the children "more vulnerable than they would have been had the administrators stood by and done nothing at all." Id. at 178. "Although the suspension was an affirmative act by school officials, we fail to see how the suspension created a new danger for the Morrow children or rendered them more vulnerable to danger had the state not acted at all." Id. The Morrow Court further explained that the school district's failure to expel the bully, and its alleged failure to enforce a disciplinary policy, did not trigger a duty to protect. Id. Although school officials might have done more, they did not increase the risk of harm itself. Id. at 179.

By contrast, in Kneipp v. Tedder , 95 F.3d 1199, 1201 (3d Cir. 1996), the Third Circuit held that police officers engaged in affirmative conduct that gave rise to actionable claims under the state-created danger exception because those officers created the danger that caused the injury. In Kneipp , police officers stopped Kneipp and her husband for causing a disturbance on a highway while they were walking home from a bar. The Kneipps were only one-third of a block from their home. Id. at 1201. Kneipp was unable to stand by herself because she was so severely intoxicated. Id. at 1201-03. Her husband asked the police officers if he could leave to tend to their young son who was home with a babysitter. Id. at 1202. The police officer allowed the husband to leave, and he assumed the officers would take care of his wife due to her inebriated state. Instead, the officers sent Kneipp home alone. She was forced to walk home alone in the cold, and she subsequently fell down an embankment and suffered hypothermia resulting in permanent brain damage. Id. at 1201-03.

The Kneipp Court found that the state acted affirmatively in creating a danger because the officers put the woman "in a worse position after the police intervened than she would have been if they had not done so." Id. at 1209. "It is conceivable that, but for the intervention of the police, [the husband] would have continued to escort his wife back to their apartment where she would have been safe." Id. Because the affirmative acts of the police created the dangerous situation, they were required to take additional measures to ensure her safety. Id. at 1210.

Here, plaintiff alleges no facts where a state actor created a dangerous situation.10

*976One cannot say that the school administrators placed plaintiff in a worse position than had its officials not acted at all. Similar to the facts in Morrow , it is alleged here that school administrators did not implement or enforce adequate safety measures. These allegations properly suggest that the school officials could have done more to protect students such as plaintiff. Nevertheless, the administrators' conduct in hiring a security company - even if they suspected that the security might be inadequate - did not render plaintiff more vulnerable to harm than had they not hired a security company at all. Plaintiff raises an interesting argument about the school district attempting to placate students and parents - "window dressing" for adequate safety. Despite the argument's novelty, it is unpersuasive. Because plaintiff unsuccessfully seeks to couch acts of omission as affirmative acts, his constitutional claim fails under the fourth element.11

3. Monell liability

As a final matter, the Court interprets plaintiff's complaint at Count VII as raising a municipal liability claim. Although the pleading is not a model of clarity as to this claim, plaintiff avers that the school district's actions demonstrated an "adopted practice, custom and policy of deliberate indifference to plaintiff's health, safety and welfare." Doc. No. 1-2 ¶ 74. Specifically, plaintiff avers that these "practices, customs and policies are demonstrated by the fact that ... [the school district] failed to properly implement, enforce, or maintain procedures in the event of emergencies," such as the one that occurred. Id. ¶ 75. He further avers that the school district "failed to ensure that defendant Capital was providing adequate security to the premises." Id.

"Courts recognize that municipal government units may constitute 'persons' against whom a claim may be raised under § 1983." Doe v. Plum Borough Sch. Dist. , No. 2:17-CV-00032, 2017 WL 3492542, at *7 (W.D. Pa. Aug. 15, 2017), dismissed, No. 17-2899, 2018 WL 1224409 (3d Cir. Jan. 17, 2018) (citing Jackson v. City of Erie Police Dep't , 570 F. App'x 112, 114 n. 2 (3d Cir. 2014) ). Nevertheless, in Monell v. New York City Dept. of Social Serv. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, the Supreme Court held that

... a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.

*977Id. at 694, 98 S.Ct. 2018. To that end, municipality liability cannot be based upon a theory of respondeat superior or vicarious liability. Id. at 694, 98 S.Ct. 2018, see also Kneipp v. Tedder , 95 F.3d 1199, 1211 (3d Cir. 1996). Rather, the plaintiff must show that the "municipality itself supported the violation of rights alleged" through the implementation of a policy or custom. Andrews v. City of Philadelphia , 895 F.2d 1469, 1480 (3d Cir. 1990) ; Monell , 436 U.S. at 692-95, 98 S.Ct. 2018.

Here, plaintiff has failed to state a municipal liability claim for at least two reasons. First, plaintiff fails to identify the specific policy or policymaker at issue. Conclusory allegations about a general lack of policies concerning safety measures is insufficient. See D.M. by Sottosanti-Mack v. Easton Area Sch. Dist. , No. CV 17-1553, 2017 WL 6557560, at *8 (E.D. Pa. Dec. 22, 2017). "[A] complaint must include specific factual allegations referencing the conduct, time, place, and persons responsible for any official municipal policy or custom." Kelty v. City of Philadelphia , No. CV 16-0306, 2016 WL 8716437, at *4 (E.D. Pa. June 10, 2016) (quoting Torres v. City of Allentown , No. 07-1934, 2008 WL 2600314, at *5, 2008 U.S. Dist. LEXIS 50522 at *13 (E.D. Pa. June 30, 2008) ).

Second, and equally problematic, plaintiff has not identified a constitutional violation for which he can assert an actionable claim for municipal liability. "A policy, practice, or custom is only unconstitutional because it allows another unconstitutional violation." Giovinco v. Foster , No. CIV.A. 3:CV-03-1569, 2003 WL 23573864, at *4 (M.D. Pa. Dec. 15, 2003) ; see also Sciotto v. Marple Newtown Sch. Dist. , 81 F.Supp.2d 559, 576 (E.D. Pa. 1999). As discussed in Part VI(C)(1)-(2), supra , plaintiff asserts a violation of his substantive due process right to bodily integrity; in this context, that claim is only actionable under the state-created danger doctrine. Because plaintiff has failed to state a claim under that theory, his Monell claim must be dismissed. See, e.g., Giovinco v. Foster , No. CIV.A. 3:CV-03-1569, 2003 WL 23573864, at *4 (M.D. Pa. Dec. 15, 2003) ("Because I have already held that Plaintiffs make no allegations which establish that the state created a danger ... Plaintiffs do not allege any other constitutional violation, there can be no liability for any policy, practice, or custom [the school district] maintained."); Gayemen v. Sch. Dist. of the City of Allentown , No. 14-CV-1518, 2016 WL 3014896, at *12 (E.D. Pa. May 26, 2016), aff'd sub nom. Gayemen v. Sch. Dist. of City of Allentown , 712 F. App'x 218 (3d Cir. 2017) ; Magwood v. French , 478 F.Supp.2d 821, 832 (W.D. Pa. 2007) (collecting cases); D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch. , 972 F.2d 1364, 1376 (3d Cir. 1992).

Finally, the Court briefly addresses plaintiff's demand for punitive damages against the school district. "Punitive damages claims are barred against municipalities under § 1983." Mitros v. Cooke , 170 F.Supp.2d 504, 507 (E.D. Pa. 2001) (citing City of Newport v. Fact Concerts, Inc. , 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) ). To the extent plaintiff seeks punitive damages against the school district, those claims will be dismissed with prejudice. Plaintiff's Section 1983 claims will otherwise be dismissed without prejudice.

VII. Conclusion

For the reasons stated herein, plaintiff has stated a claim under Pennsylvania law regarding the parents' alleged negligence. The actionable claim is not for vicarious liability, but for the parents' own alleged acts in making the injury possible. The Court has found that plaintiff has sufficiently *978alleged that the parents ought to have foreseen the injury and that their negligence is the proximate cause of that injury. Similarly, the Court has found that plaintiff has alleged sufficient facts that, if proven at trial, could support imposition of punitive damages.

Second, plaintiff has alleged sufficient facts that could support punitive damages against the security company. The Court notes that, with respect to both the parents' motion to dismiss and Capital's motion to dismiss, plaintiff will face a substantial burden moving forward. Nevertheless, the well-pleaded facts in the complaint, taken as true, render those claims plausible.

Third, plaintiff has failed to state an actionable Section 1983 claim. In this context, alleged violations of a due process right to bodily integrity is only actionable under the state-created danger doctrine. That is because the state otherwise has no duty to protect a citizen from violence caused by another private citizen. Here, the Court has found that plaintiff has failed to allege any facts that would satisfy the elements of that doctrine. In particular, he has failed to identify (1) that the harm was foreseeable and fairly direct; (2) that a state actor acted with culpability to shock the conscience; or (3) that a state actor acted affirmatively to create a danger to him. While school officials might have done more, their actions did not increase the risk of harm itself. Finally, because plaintiff has not pled sufficient facts to show a constitutional violation, his municipal liability claim also fails as a matter of law.

In granting the school district's motion to dismiss, the Court will permit leave to amend. The Court cannot say with certainty that amendment would be futile, so his Section 1983 claims will be dismissed without prejudice. See Phillips v. Cty. of Allegheny , 515 F.3d 224, 246 (3d Cir. 2008) ; Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc. , 482 F.3d 247, 251 (3d Cir. 2007) ("Our precedent supports the notion that in civil rights cases district courts must offer amendment-irrespective of whether it is requested-when dismissing a case for failure to state a claim unless doing so would be inequitable or futile."); Ne. Revenue Servs., LLC v. Maps Indeed, Inc. , 685 F. App'x 96, 103 (3d Cir. 2017). Plaintiff will have 21 days to file an amended complaint. If amendment is not forthcoming within that time, his claims against the school district will be dismissed with prejudice. In that instance, the remaining state law claims will then be remanded. See 28 U.S.C. § 1367(c)(3).

An appropriate order follows.

*1205OPINION

MAY, Judge.

Aaron Baker appeals the trial court's grant of summary judgment to Fenneman & Brown Properties, L.L.C. and Southern Bells of Indiana, Inc., all d/b/a Taco Bell (hereinafter collectively "Taco Bell"). Baker raises one issue, which we restate as whether Taco Bell has a duty to assist a customer who falls to the floor and loses consciousness when the customer's fall was not due to any fault of Taco Bell.1

We reverse and remand.2

FACTS AND PROCEDURAL HISTORY

On August 26, 1999, Baker entered the Taco Bell store in Newburgh, Indiana, to purchase a soft drink. Upon entering the store, Baker felt nauseous, but he continued to the counter, where he ordered a drink. Baker handed the cashier money for the drink and suddenly fell backward. Baker's head hit the floor, and he was knocked unconscious and began having convulsions.3

Baker and Taco Bell disagree regarding whether Taco Bell rendered assistance to Baker. Baker claims that when he regained consciousness, he was staring at the ceiling, he had no idea what was going on, and he did not know where he was. He claims that no Taco Bell employee called for medical assistance or helped him in any way. Taco Bell claims that the cashier walked around the counter to Baker, where she waited for his convulsions to stop, and then she asked Baker if he was okay and if he needed an ambulance. The employee claims Baker said he was fine and he did not need an ambulance, so she walked back around the counter.

What happened next is undisputed. Moments after Baker stood up, he fell again. This time, Baker fell forward and was knocked unconscious. The fall lacerated his chin, knocked out his four front teeth, and cracked the seventh vertebra of his neck. When Baker regained consciousness, he was choking on the blood and teeth in his mouth. Baker stumbled out of the store to a friend, who contacted Baker's fiancé to take him to the hospital.

Baker filed a complaint against Taco Bell, in which he alleged: 1) Taco Bell breached its duty to render assistance to him until he could be cared for by others when Taco Bell employees knew or should have known that he was ill or injured, and 2) Taco Bell's "conduct constituted gross negligence, wanton disregard and wanton recklessness" toward Baker. (Appellant's App. at 8.) Baker sought damages for med*1206ical bills, lost wages, pain and suffering, and mental anguish.

Taco Bell moved for summary judgment, claiming it owed Baker no duty. Baker responded by arguing Taco Bell had a duty to help him, and even if it did not, a Taco Bell employee testified in her deposition that she offered assistance to Baker; Taco Bell, therefore, assumed a duty to provide reasonable assistance to Baker. The trial court granted Taco Bell's motion.

STANDARD OF REVIEW

When we review a trial court's grant of summary judgment, we apply the same standard the trial court applied: we determine whether a genuine issue of material fact existed and whether the moving party was entitled to judgment as a matter of law. Luhnow v. Horn, 760 NE.2d 621, 625 (Ind.Ct.App.2001). While a trial court's grant of summary judgment is clothed with a presumption of validity and the appellant bas the burden of demonstrating the trial court erred, we must assess the trial court's decision carefully to ensure the appellant was not improperly denied his day in court. Id. If the moving party demonstrates that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law, then the burden shifts to the nonmov-ant to designate specific facts that raise a genuine issue for trial. Id.

DISCUSSION AND DECISION

Baker claims Taco Bell had a duty to assist him and that it breached that duty by failing to provide assistance to him. Taco Bell argues it had no duty to assist Baker because it was not responsible for the instrumentality that caused Baker's initial injury. We believe Baker is correct.

To effectively assert a negligence claim, Baker must establish: (1) that Taco Bell had a duty "to conform [its] conduct to a standard of care arising from [its] relationship with [Baker]," (2) that Taco Bell failed to conform its conduct to that standard of care, and (8) that Baker incurred injuries as a proximate result of Taco Bell's breach of its duty. See Ind. State Police v. Don's Guns & Galleries, 674 N.E.2d 565, 568 (Ind.Ct.App.1996), trans. denied 688 N.E.2d 592 (Ind.1997). The existence of a duty is a question of law for the court to decide. Id. To determine whether a duty exists, we must balance three factors: "(1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns." Id.

As a general rule, an individual does not have a duty to aid or protect another person, even if he knows that person needs assistance. L.S. Ayres v. Hicks, 220 Ind. 86, 93, 40 N.E.2d 334, 337 (1942), reh'g denied w/opinion 220 Ind. 86, 41 N.E.2d 195 (1942). See also Restatement (Second) of Torts § 314 ("The fact that the 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.") (hereinafter, "Restatement"). However, both common law and statutory exceptions to that general rule exist. Neg, eg., Restatement § 314B (employer has a duty to protect or aid an injured employee); Ind. Code § 85-46-1-4 (neglect of a dependent is a felony). See also L.S. Ayres, 220 Ind. at 94, 40 N.E.2d at 337 ("under some circumstances, moral and humanitarian considerations may require one to render assistance to another who has been injured, even though the injury was not due to negligence on his part and may have been caused by the negligence of the injured person").

Baker claims Taco Bell had the duty to assist him described under Section 314A of *1207the Restatement, which provides the following exception to the general rule that one person need not assist another:

§ 314A. Special Relations Giving Rise to Duty to Aid or Protect

1) A common carrier is under a duty to its passengers to take reasonable action:

(a) to protect them against unreasonable risk of physical harm, and

(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

(2) An innkeeper is under a similar duty to his guests.

(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) One who is required by law to take or who voluntarily takes the custody of another under cireumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

The duty that arises under Section 314A exists because of the special relationship between the parties. Restatement § 314A, emt. b. The relationships listed in the rule are not intended to be exclusive, id; nevertheless, some courts have restricted the application of § 314A to business invitees. See, eg., Gilbertson v. Leininger, 599 N.W.2d 127, 131 (Minn.1999) (holding host to an overnight social guest does not have a duty under § 314A). In addition, the exception applies only while the relationship exists, so onee the passenger leaves the train or the guest leaves the hotel, the railroad or hotel no longer has a duty to aid or protect an ill or injured individual. Restatement § 314A, emt. c. See also Sachs v. TWA Getaway Vacations, Inc., 125 F.Supp.2d 1368, 1374 (S.D.Fla.2000) (holding tour operator had no duty to protect tour participants when on bus not owned by tour operator); but see Kellner v. Lowney, 145 N.H. 195, 761 A.2d 421 (2000) (holding motel owner could be liable for injury to boy crossing public highway between two portions of motel property because owner should have foreseen the risk to his guests of crossing the highway to get from hotel rooms to portion of hotel property where religious services were held).

In LS. Ayres, our supreme court considered whether a department store, which was not in any way liable for a boy's initial injury by an escalator, nevertheless could be held liable for aggravation of the injuries caused by its employees' failure to stop the escalator. The court determined

there may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless and in a situation of peril, when the one proceeded against is a master or an invitor or when the injury resulted from use of an instrumentality under the control of the defendant. Such an obligation may exist although the accident or original injury was caused by the negligence of the plaintiff or through that of a third person and without any fault on the part of the defendant. Other relationships may impose a like obligation, but it is not necessary to pursue that inquiry further at this time.

220 Ind. at 95, 40 N.E.2d at 337. The court noted that the boy "was an invitee and he received his initial injury in using an instrumentality provided by" LS. Ayres and then held LS. Ayres could be liable for the aggravation of the boy's injury caused by its failure to assist him. Id.; 40 N.E.2d at 337-838.

Taco Bell claims it had no duty to assist Baker because it was not responsible for Baker's initial illness or injury. It argues *1208that, under L.S. Ayres, an Indiana business has a duty to assist a customer only if "the injury resulted from the use of an instrumentality under the control of the defendant." Id.; 40 N.E.2d at 337. In essence, Taco Bell argues that Indiana law recognizes only a limited duty under § 314A of the Restatement. Taco Bell's argument fails for a number of reasons.

First, the cases cited by the supreme court in L.S. Ayres suggest the court did not intend to limit the application of § 314A to situations where the plaintiff was an invitee and the instrumentality causing the injury belonged to the defendant. For example, the court discussed Depue v. Flatau, 100 Minn. 299, 111 N.W. 1 (1907), in which a home owner was held liable for aggravation of injuries to a severely ill, fainting, and helpless businessman that the home owner sent away unattended on a cold winter night. L.S. Ayres, 220 Ind. at 94, 40 N.E.2d at 337. There, as here, the initial illness was not the responsibility of the defendant. Nevertheless, our supreme court relied on that case when determining whether L.S. Ayres had a duty to assist the injured boy.

Second, when the supreme court had reason later that same year to mention LS. Ayres in another of its opinions, it summarized the holding as follows: "this court recognized a duty to one in peril on the defendant's premises as an invitee even though the peril was created without negligence on the part of the defendant." Jones v. State, 220 Ind. 384, 48 N.E.2d 1017, 1018 (1942). That summarization suggests the supreme court did not intend, as Taco Bell insists, to limit its holding to situations where a plaintiff could prove both that he was an invitee and that the defendant's instrumentality caused the initial injury.

Third, the Restatement explains:

The duty to give aid to one who is ill or injured extends to cases where the illness or injury is due to natural causes, to pure accident, to the acts of third person, or to the negligence of the plaintiff himself, as where a passenger has injured himself by clumsily bumping his head against a door.

Restatement § 314A, emt d. A number of the illustrations provided in the Restatement parallel the fact pattern here and suggest Taco Bell had a duty to assist Baker. For example, Mustration 2 provides:

A, a passenger riding on the train of B Railroad, suffers an apoplectic stroke, and becomes unconscious. The train crew unreasonably assume[s] that A is drunk, and dofes] nothing to obtain medical assistance for him, or to turn him over at a station to those who will do so. A continues to ride on the train in an unconscious condition for five hours during which time his illness is aggravated in a manner which proper medical attention would have avoided. B Railroad is subject to lability to A for the aggravation of his illness.

Id. § 314A. Mustration 7 provides:

A is a small child sent by his parents for the day to B's kindergarten. In the course of the day A becomes ill with scarlet fever. Although recognizing that A is seriously ill, B does nothing to obtain medical assistance, or to take the child home or remove him to a place where help can be obtained. As a result, A's illness is aggravated in a manner which proper medical attention would have avoided. B is subject to liability to A for the aggravation of his injuries.

Id.

Review of decisions from a number of other jurisdictions suggests we should interpret Indiana law to impose a duty in *1209this situation. Seq, eg., Gingeleskie v. Westin Hotel, et al., 145 F.3d 1337, 1998 WL 279393 at ** 2 (9th Cir.1998) (holding question of fact existed regarding whether hotel took reasonable steps under § 314A to get a sick man to a hospital when the employee called a cab rather than an ambulance); Estate of Starling v. Fisherman's Pier, Inc., 401 So.2d 1136, 1138 (Fla.Dist.Ct.App.1981) (holding business has an affirmative duty to take steps to protect a drunk man passed out on business's pier, such that he would not roll into the ocean and drown), rev. denied 411 So.2d 381 (Fla.1981); Miller v. McDonald's Corporation, 439 So.2d 561, 565 (La.Ct.App.1983) (holding business owner had duty to render reasonable aid after learning person on his premises is injured or ill and remanding to allow plaintiff to amend his complaint to so allege), writ not considered 442 So.2d 462 (La.1983); Southland Corp. v. Griffith, 332 Md. 704, 633 A.2d 84, 91-92 (1998) (holding business had a duty to provide aid to injured customer by calling the police when a customer requested the employee do so); Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W.Va. 689, 271 S.E.2d 335, 338-40 (1980) (holding business had duty under § 314A of the Restatement to help a man who fainted and that whether business met that duty was a question of fact for the jury); Lloyd v. S.S. Kresge Co., d/b/a K-Mart, 85 Wis.2d 296, 270 N.W.2d 423, 426-27 (Wis.Ct.App.1978) (holding question of fact existed regarding whether K-Mart failed to give reasonable assistance to customer who was ill when it forced her to wait for her ride outside the store on a cold winter night).

Finally, public policy suggests Taco Bell had a duty to provide reasonable care in this situation. When a storeowner opens his property to the public, he does so because he hopes to gain some economic benefit from the public. "Social policy dictates that the storeowner, who is deriving this economic benefit from the presence of the customer, should assume the affirmative duty [to help customers who become ill as] a cost of doing business." Id.

Taco Bell argues placing this duty on businesses is unreasonable because then, in essence, a business would be required to hire employees who were trained to diagnose and provide medical services. See Br. of Appellee at 14 ("A rule requiring first aid to be delivered to any invitee, no matter the type of business and no matter the cireumstances that led to the injury, would require an impossible and frightening standard of care for persons employed in the service industry."); id. at 15 ("Taco Bell sells tacos. Taco Bell does not and has never held itself out to be a medical treatment facility.... To require Taco Bell to treat these 'patients' would be unfair and unsafe for the 'patient' and the Taco Bell employee alike."). We disagree.

As comment f to Section 314A of the Restatement explains:

[The business] is not required to take any action beyond that which is reasonable under the cireumstances. In the case of an ill or injured person, [the business] will seldom be required to do more than give such first aid as [it] reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained. [A business] is not required to give any aid to one who is in the hands of apparently competent persons who have taken charge of him, or whose friends are present and apparently in a position to give him all necessary assistance.

Accordingly, the duty that arises is a duty to "exercise reasonable care under the circumstances." Id. emt. e. A high school *1210student employed at Taco Bell would not be expected to provide the type of first aid an emergency room doctor would provide, as such an expectation would not be "reasonable." As a Wyoming court explained:

A restaurant whose employees are reasonably on notice that a customer is in distress and in need of emergency medical attention has a legal duty to come to the assistance of that customer. However, a restaurant does not have a duty to provide medical training to its food service personnel, or medical rescue services to its customers who become ill or injured through no act or omission of the restaurant or its employees. A restaurant in these cireum-stances meets its legal duty to a customer in distress when it summons medical assistance within a reasonable time.

Drew v. LeJay's Sportsmen's Café, Inc., 806 P.2d 301, 304 (Wyo.1991).

Moreover, as a practical matter, we fail to see the logic in Taco Bell's position that it should have no duty to aid in these types of situations. First, we find it unlikely customers would patronize a business that left another customer who was ill or injured lying on the floor of the business simply because the business was not responsible for the customer's illness or injury.

Second, imposing on a business a duty to provide reasonable care even when the business is not responsible for an illness or injury will rarely force a business to act in cireumstances in which it should not already have been acting. For example, if, as Taco Bell asserts, a business has no duty to assist if it is not responsible for the instrumentality, then: 1) if a customer falls to the ground, an employee should determine before offering assistance whether the customer slipped on ice, in which case the business has a duty to act, or whether the customer merely passed out from syncope, in which case the business has no duty; or 2) if a customer's face is turning blue, an employee should determine before providing assistance whether the person is choking on a food item from the business, in which case the employee must offer assistance, or whether the person is having a heart attack or choking on a food item purchased from a third party, in which case the employee need not offer assistance. By implementing policies and procedures that allow their employees to assist injured persons only when the business causes the illness or injury, a business might risk liability claims caused by an employee's failure to act, or failure to act promptly, when an illness or injury was in fact caused by an instrumentality of the business. Consequently, we are not placing a duty on businesses that they should not have already assumed.

In sum, Indiana case law, the Restatement (Second) of Torts, authority from other jurisdictions, and public policy all suggest Taco Bell had a duty, as a business that invited members of the public to enter its facility, to provide reasonable assistance to Baker even though Taco Bell was not responsible for Baker's iliness. Consequently, we hold Taco Bell had a duty to "take reasonable action ... to give ... aid" to Baker after he fell and "to care for [him] until [he could] be cared for by others." Restatement § 314A.

Baker asserts Taco Bell provided no assistance. Taco Bell's employee claims she offered Baker assistance, but he refused to accept it. Thus, there is a question of material fact that precludes summary judgment on this issue, and we must reverse and remand for trial.

Reversed and remanded.

KIRSCH, J., and MATHIAS, J., concur.

*243Lummus, J.

The defendant operated a retail grocery and meat store in Lynn, heated by hot air registers in the floor. On May 23, 1932, the plaintiff entered the store and walked towards the grocery counter. She stopped to take a “cookie” from a plate held by a person dressed as a clown, who was engaged in exhibiting “cookies,” though not as a servant of the defendant. When she started to walk again, she found that one of her heels had become caught in one of the openings in a register. In consequence of that, she fell and was hurt.

The judge denied the defendant’s motion for a directed verdict, subject to its exception. After a verdict for the plaintiff, the judge, under leave reserved (G. L. [Ter. Ed.] c. 231, § 120), entered a verdict for the defendant, subject to the plaintiff’s exception. The latter exception brings the case here.

The register was described in an answer by an officer of the defendant to an interrogatory filed by the plaintiff. Since the answer was introduced in evidence by the plaintiff, and was not contradicted by any evidence, the plaintiff is bound by it. Gordon v. Bedard, 265 Mass. 408, 411. Slamin v. New York, New Haven & Hartford Railroad, 282 Mass. 590, 592. Dome Realty Co. v. Cohen, 290 Mass. 36, 39. The description showed a “steel register” of “the ordinary type in common and general use,” containing seventy-two openings, each seven eighths of an inch square.

Obviously the plaintiff’s heel, if not worn out of shape, had to be very small at the bottom in order to get caught in such a register. She described the heel as “an ordinary heel that she wore all the time,” although she testified that at the trial she was wearing shoes with broader heels.

Since due care is that degree of care which a man of ordinary prudence would use under the circumstances (Labrecque v. Donham, 236 Mass. 10), the fact that a certain device or practice is in common use tends to show that its use is not negligent. Cass v. Boston & Lowell Railroad, 14 Allen, 448, 450. McMahon v. McHale, 174 Mass. 320, 326. Dolan v. Boott Cotton Mills, 185 Mass. 576, 579, 580. *244 Moynihan v. Holyoke, 193 Mass. 26. Pitcher v. Old Colony Street Railway, 196 Mass. 69, 71. Long v. Athol, 196 Mass. 497, 508. McCrea v. Beverly Gas & Electric Co. 216 Mass. 495, 498. Hecht v. Boston Wharf Co. 220 Mass. 397, 405. Draper v. Cotting, 231 Mass. 51, 59-61. Bowen, Inc. v. G. R. Armstrong Manufacturers’ Supplies, Inc. 241 Mass. 444, 447. Cronan v. Armitage, 285 Mass. 520, 525. But that fact is not conclusive of due care, for a large number of persons may be wanting in due care in their usual practices. Maynard v. Buck, 100 Mass. 40. Dolan v. Boott Cotton Mills, 185 Mass. 576, 580. Smith v. Gammino, 225 Mass. 285. Wilson v. Alexander, 230 Mass. 242. Bernier v. Pittsfield Coal Gas Co. 257 Mass. 188, 190.

In the present case the register was of a type “in common and general use.” Although that is not conclusive of the defendant’s due care, the plaintiff had the burden of introducing evidence warranting a finding of negligence. There was no evidence that registers with smaller openings were in common use. When the court can see that the physical facts, with any other evidence that may exist, do not warrant the inference that a reasonable man in the position of the defendant would have anticipated danger and guarded against it, a verdict for the plaintiff is not warranted. Lyons v. Boston Elevated Railway, 204 Mass. 227. Phinney v. Eastern Massachusetts Street Railway, 285 Mass. 207, 210. Pastrick v. S. S. Kresge Co. 288 Mass. 194. Zacharer v. Wakefield, ante, 90. Although the plaintiff described her heel as “ordinary,” there is nothing beyond the use of that word to show that the defendant had reason to expect in 1932 that women would do their marketing while wearing heels so small. If, however, the vagaries of fashion had indeed brought into common use for such purposes heels of that -description, there is no evidence how long they had been in vogue. The defendant could not be expected to reconstruct its store immediately to meet the problems occasioned by a sudden, extreme and very likely evanescent fashion. We think the verdict for the defendant was rightly entered.

The case is not like Upham v. Boston, 187 Mass. 220, *245where there was a want of repair, and a hole large enough to be dangerous to ordinary travel. We need not consider Shorkey v. Great Atlantic & Pacific Tea Co. 259 Mich. 450, where a case similar to the present was determined in favor of the defendant on the ground that if the defendant was negligent the plaintiff must have been guilty of contributory negligence.

Exceptions overruled.

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.

GIBSON, C. J.

This is an action for damages for personal injuries alleged to have been inflicted on plaintiff by defendants during the course of a surgical operation. The trial court entered judgments of nonsuit as to all defendants and plaintiff appealed.

On October 28, 1939, plaintiff consulted defendant Dr. Tilley, who diagnosed his ailment as appendicitis, and made arrangements for an appendectomy to be performed by defendant Dr. Spangard at a hospital owned and managed by defendant Dr. Swift. Plaintiff entered the hospital, was given a hypodermic injection, slept, and later was awakened by Doctors Tilley and Spangard and wheeled into the operating room by a nurse whom he believed to be defendant Gisler, an employee of Dr. Swift. Defendant Dr. Reser, the anesthetist, also an employee of Dr. Swift, adjusted plaintiff for *488the operation, pulling his body to the head of the operating table and, according to plaintiff’s testimony, laying him back against two hard objects at the top of his shoulders, about an inch below his neck. Dr. Eeser then administered the anesthetic and plaintiff lost consciousness. When he awoke early the following morning he was in his hospital room attended by defendant Thompson, the special nurse, and another nurse who was not made a defendant.

Plaintiff testified that prior to the operation he had never had any pain in, or injury to, his right arm or shoulder, but that when he awakened he felt a sharp pain about half way between the neck and the point of the right shoulder. He complained to the nurse, and then to Dr. Tilley, who gave him diathermy treatments while he remained in the hospital. The pain did not cease, but spread down to the lower part of his arm, and after his release from the hospital the condition grew worse. He was unable to rotate or lift his arm, and developed paralysis and atrophy of the muscles around the shoulder. He received further treatments from Dr. Tilley until March, 1940, and then returned to work, wearing his arm in a splint on the advice of Dr. Spangard.

Plaintiff also consulted Dr. Wilfred Sterling Clark, who had X-ray pictures taken which showed an area of diminished sensation below the shoulder and atrophy and wasting away of the muscles around the shoulder. In the opinion of Dr. Clark, plaintiff’s condition was due to trauma or injury by pressure or strain, applied between his right shoulder and neck.

Plaintiff was also examined by Dr. Fernando Garduño, who expressed the opinion that plaintiff’s injury was a paralysis of traumatic origin, not arising from pathological causes, and not systemic, and that the injury resulted in atrophy, loss of use and restriction of motion of the right arm and shoulder.

Plaintiff’s theory is that the foregoing evidence presents a proper case for the application of the doctrine of res ipsa loquitur, and that the inference of negligence arising therefrom makes the granting of a nonsuit improper. Defendants take the position that, assuming that plaintiff’s condition was in fact the result of an injury, there is no showing that the act of any particular defendant, nor any particular instrumentality, was the cause thereof. They attack plaintiff’s *489action as an attempt to fix liability “en masse” on various defendants, some of whom were not responsible for the acts of others; and they further point to the failure to show which defendants had control of the instrumentalities that may have been involved. Their main defense may be briefly stated in two propositions: (1) that where there are several defendants, and there is a division of responsibility in the use of an instrumentality causing the injury, and the injury might have resulted from the separate act of either one of two or more persons, the rule of res ipsa loquitur cannot be invoked against any one of them; and (2) that where there are several instrumentalities, and no showing is made as to which caused the injury or as to the particular defendant in control of it, the doctrine cannot apply. We are satisfied, however, that these objections are not well taken in the circumstances of this case.

The doctrine of res ipsa loquitur has three conditions: “ (1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” (Prosser, Torts, p. 295.) It is applied in a wide variety of situations, including cases of medical or dental treatment and hospital care. (Ales v. Ryan, 8 Cal. 2d 82 [64 P.2d 409]; Brown v. Shortlidge, 98 Cal.App. 352 [277 P. 134]; Moore v. Steen, 102 Cal.App. 723 [283 P. 833] ; Armstrong v. Wallace, 8 Cal.App.2d 429 [47 P.2d 740] ; Meyer v. McNutt Hospital, 173 Cal. 156 [159 P. 436]; Vergeldt v. Hartzell, 1 F.2d 633; Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228]; Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425]; see Shain, Res Ipsa Loquitur, 17 So.Cal.L. Rev. 187, 196.)

There is, however, some uncertainty as to the extent to which res ipsa loquitur may be invoked in cases of injury from medical treatment. This is in part due to the tendency, in some decisions, to lay undue emphasis on the limitations of the doctrine, and to give too little attention to its basic underlying purpose. The result has been that a simple, understandable rule of circumstantial evidence, with a sound background of common sense and human experience, has occasionally been transformed into a rigid legal formula, which *490arbitrarily precludes its application in many cases where it is most important that it should be applied. If the doctrine is to continue to serve a useful purpose, we should not forget that “the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.” (9 Wigmore, Evidence [3d ed.], § 2509, p. 382; see, also, Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425, 432]; Boss v. Double Shoals Cotton Mills, 140 N.C. 115 [52 S.E. 121; 1 L.B.A.N.S. 298]; Maid v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231].) In the last-named case, where an unconscious patient in a hospital received injuries from a fall, the court declared that without the doctrine the maxim that for every wrong there is a remedy would be rendered nugatory, “by denying one, patently entitled to damages, satisfaction merely because he is ignorant of facts peculiarly within the knowledge of the party who should, in all justice, pay them.”

The present case is of a type which comes within the reason and spirit of the doctrine more fully perhaps than any other. The passenger sitting awake in a railroad car at the time of a collision, the pedestrian walking along the street and struck by a falling object or the debris of an explosion, are surely not more entitled to an explanation than the unconscious patient on the operating table. Viewed from this aspect, it is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone’s negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability. (See Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228].) If this were the state of the law of negligence, the courts, to avoid gross injustice, would be forced to invoke the principles of absolute liability, irrespective of negligence, in actions by persons suffering in*491juries during the course of treatment under anesthesia. But we think this juncture has not yet been reached, and that the doctrine of res ipsa loquitur is properly applicable to the case before us.

The condition that the injury must not have been due to the plaintiff’s voluntary action is of course fully satisfied under the evidence produced herein; and the same is true of the condition that the accident must be one which ordinarily does not occur unless someone was negligent. We have here no problem of negligence in treatment, but of distinct injury to a healthy part of the body not the subject of treatment, nor within the area covered by the operation. The decisions in this state make it clear that such circumstances raise the inference of negligence, and call upon the defendant to explain the unusual result. (See Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Brown v. Shortlidge, 98 Cal.App. 352 [277 P. 134].)

The argument of defendants is simply that plaintiff has not shown an injury caused by an instrumentality under a defendant’s control, because he has not shown which of the several instrumentalities that he came in contact with while in the hospital caused the injury; and he has not shown that any one defendant or his servants had exclusive control over any particular instrumentality. Defendants assert that some of them were not the employees of other defendants, that some did not stand in any permanent relationship from which liability in tort would follow, and that in view of the nature of the injury, the number of defendants and the different functions performed by each, they could not all be liable for the wrong, if any.

We have no doubt that in a modern hospital a patient is quite likely to come under the care of a number of persons in different types of contractual and other relationships with each other. For example, in the present case it appears that Doctors Smith, Spangard and Tilley were physicians or surgeons commonly placed in the legal category of independent contractors; and Dr. Reser, the anesthetist, and defendant Thompson, the special nurse, were employees of Dr. Swift and not of the other doctors. But we do not believe that either the number or relationship of the defendants alone determines whether the doctrine of res ipsa loquitur applies. Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for *492failure in this regard. Any defendant who negligently injured him, and any defendant charged with his care who so neglected him as to allow injury to occur, would he liable. The defendant employers would be liable for the neglect of their employees; and the doctor in charge of the operation would be liable for the negligence of those who became his temporary servants for the purpose of assisting in the operation.

In this connection, it should be noted that while the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon him for their negligent acts under the doctrine of respondeat superior. Thus a surgeon has been held liable for the negligence of an assisting nurse who leaves a sponge or other object inside a patient, and the fact that the duty of seeing that such mistakes do not occur is delegated to others does not absolve the doctor from responsibility for their negligence. (See Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Armstrong v. Wallace, 8 Cal.App.2d 429 [47 P.2d 740]; Ault v. Hall, 119 Ohio St. 422 [164 N.B. 518, 60 A.L.R 128]; and see, also, Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 233].)

It may appear at the trial that, consistent with the principles outlined above, one or more defendants will be found liable and others absolved, but this should not preclude the application of the rule of res ipsa loquitur.. The control, at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant or of his employees or temporary servants. This, we think, places upon them the burden of initial explanation. Plaintiff was rendered unconscious for the purpose of undergoing surgical treatment by the defendants; it is manifestly unreasonable for them to insist that he identify any one of them as the person who did the alleged negligent act.

The other aspect of the case which defendants so strongly emphasize is that plaintiff has not identified the instrumentality any more than he has the particular guilty defendant. Here, again, there is a misconception which, if carried to the extreme for which defendants contend, would unreasonably limit the application of the res ipsa loquitur rule. It should be enough that the plaintiff can show an injury resulting *493from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make.

An examination of the recent cases, particularly in this state, discloses that the test of actual exclusive control of an instrumentality has not been strictly followed, but exceptions have been recognized where the purpose of the doctrine of res ipsa loquitur would otherwise be defeated. Thus, the test has become one of right of control rather than actual control. (See Metz v. Southern Pac. Co., 51 Cal.App.2d 260, 268 [124 P.2d 670].) In the bursting bottle eases where the bottler has delivered the instrumentality to a retailer and thus has given up actual control, he will nevertheless be subject to the doctrine where it is shown that no change in the condition of the bottle occurred after it left the bottler’s possession, and it can accordingly be said that he was in constructive control. (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453 [150 P.2d 436].) Moreover, this court departed from the single instrumentality theory in the colliding vehicle cases, where two defendants were involved, each in control of a separate vehicle. (See Smith v. O’Donnell, 215 Cal. 714 [12 P. 2d 933]; Godfrey v. Brown, 220 Cal. 57 [29 P.2d 165, 93 A.L.R. 1072]; Carpenter, 10 So.Cal.L.Rev. 170.) Finally, it has been suggested that the hospital cases may properly be considered exceptional, and that the doctrine of res ipsa loquitur “should apply with equal force in cases wherein medical and nursing staffs take the place of machinery and may, through carelessness or lack of skill, inflict, or permit the infliction of, injury upon a patient who is thereafter in no position to say how he received his injuries.” (Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231]; see, also, Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425, 435], where the court refers to the “instrumentalities” as including “the unconscious body of the plaintiff.”)

In the face of these examples of liberalization of the tests for res ipsa loquitur, there can be no justification for the rejection of the doctrine in the instant case. As pointed out above, if we accept the contention of defendants herein, there will rarely be any compensation for patients injured while unconscious. A hospital today conducts a highly integrated system of activities, with many persons contributing their efforts. There may be, e. g., preparation for surgery by nurses *494and internes who are employees of the hospital; administering of an anesthetic by a doctor who may be an employee of the hospital, an employee of the operating surgeon, or. an independent contractor; performance of an operation by a surgeon and assistants who may be his employees, employees of the hospital, or independent contractors; and post surgical care by the surgeon, a hospital physician, and nurses. The number of those in whose care the patient is placed is not a good reason for denying him all reasonable opportunity to recover for negligent harm. It is rather a good reason for re-examination of the statement of legal theories which supposedly compel such a shocking result.

We do not at this time undertake to state the extent to which the reasoning of this case may be applied to other situations in which the doctrine of res ipsa loquitur is invoked. We merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.

The judgment is reversed.

Shenk, J., Curtis, J., Edmonds, J., Carter, J., and Schauer, J., concurred.

Respondents’ petition for a rehearing was denied January 25, 1945. Traynor, J., voted for a rehearing.

Mitchell, J.1

Upon the 1-ecord in this case it must be taken as the facts that defendant’s clerk in his drug-store, in the course of his employment as such, sold to plaintiff’s intestate a deadly poison without labelling it “Poison,” as required by statute; that she, in ignorance of its deadly qualities, partook of the poison, -which caused her death. Except for the ability of counsel and the earnestness with which they have argued the case, we would not have supposed that there could be any serious doubt of defendant’s liability on this state of facts. It is immaterial for present purposes whether section 329 of the Penal Code or section 14, c. 147, Laws 1885, or both, are still in force, and constitute the law' governing this case. The requirements of both statutes are substantially the same, and the sole object of both is to protect the public against tbe dangerous qualities of poison. It is now well settled, certainly in this state, that where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it"was imposed for any injuries of the character which the statute or'ordinance was designed to prevent, and which were proximately produced/ by such neglect. In support of this we need only cite our own decision in Bott v. Pratt, 33 Minn. 323, (23 N. W. Rep. 237.)

Defendant contends that this is only true where a right of action for the alleged negligent act existed at common law; that no liability existed at common law for selling poison without labelling it, and therefore none exists under this statute, no right of civil action being given by it. Without stopping to consider the correctness of the assumption that selling poison without labelling it might not be actionable negligence at common law, it is sufficient to say that, in our opinion, defendant’s contention proceeds upon an entire misapprehension of the nature and gist of a cause of action of this kind. The common law gives a right of action to every one sustaining injuries caused proximately by the negligence of another. The pres*105ent is a common-law action, the gist of which is defendant’s negligence, resulting in the death of plaintiff’s intestate. Negligence is the breach of legal duty. It is immaterial whether the duty is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others. In either case the failure to perform the duty constitutes negligence, and renders the party liable for injuries resulting from it. The only difference is that in the one case the measure of legal duty is to be determined upon common-law principles, while in the other the statute fixes it, so that the violation of the statute constitutes conclusive evidence of negligence, or, in other words, negligence per se. The action in the latter case is not a statutory one, nor does the statute give the right of action in any other sense except that it makes an act negligent which otherwise might not be such, or at least only evidence of negligence. All that the statute does is to establish a fixed standard by which the fact of negligence may be determined. The gist of the action is still negligence, or the non-performance of a legal duty to the person injured.

What has been already said suggests the answer to the further contention that if any civiliiability exis.ts.lt is only againslthe clerk who sold the poison, and who alone is criminally liable. Whether the“act constituting the actionable negligence was such on common-law principles, or is made such by statute, the doctrine of agency applies, to wit, that the master is civilly liable for the negligence of his servant committed in the course of his employment, and resulting in injuries to third persons.

Judgment affirmed.

HOLMAN, J.

The patron of a drinking establishment seeks to recover against the operator for personal injuries allegedly inflicted by other customers during a barroom brawl. The jury returned a verdict for defendant. Plaintiff appealed.

Prom the evidence introduced, the jury could find as follows:

A fight erupted in a bar between a group of persons of American Indian ancestry, who were sitting in a booth, and other customers who were at an adjacent table with plaintiff. One of plaintiff’s friends had refused to allow a patron from the booth to dance with the friend’s wife because the stranger was intoxicated. Thereafter, such threats as, “Hey, Whitey, how *585big are yon?” were shouted from the booth at plaintiff and his companions. One of the persons at the table, after complaining to the bartender, was warned by him, “Don’t start trouble with those guys.” Soon thereafter, those individuals who had been sitting in the booth approached the table and one of them knocked down a person who was talking to a member of plaintiff’s party. With that, the brawl commenced.

After a short melee, someone shouted “Fuzz!” and those persons who had been sitting in the booth ran out a door and into the parking lot, with one of plaintiff’s friends in hot pursuit. Upon reaching the door, the friend discovered plaintiff lying just outside with his feet wedging the door open.

Plaintiff suffered retrograde amnesia and could remember nothing of the events of the evening. No one could testify to plaintiff’s whereabouts at the time the band in the booth went on the warpath or to the cause of the vicious head injuries which plaintiff displayed when the brawl was ended.

The customers in the booth had been drinking in defendant’s place of business for approximately two and one-half hours before the affray commenced.

The principal issue is whether, as plaintiff contends, violations of ORS 471.410 (3) and of Oregon Liquor Control Regulation No. 10-065 (2) constitute negligence as a matter of law. The portion of the statute relied on by plaintiff reads as follows:

“(3) No person shall give or otherwise make available any alcoholic liquor to a person visibly intoxicated # *

The portion of the regulation to which plaintiff points provides:

“(2) No licensee shall permit or suffer any *586loud, noisy, disorderly or boisterous conduct, or any profane or abusive language, in or upon his licensed premises, or permit any visibly intoxicated person to enter or remain upon his licensed premises.”

The trial court held that a violation of either the statute or the regulation did not constitute negligence per se. It refused requested instructions and withdrew allegations of negligence which were based on their violation.

1. A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute or regulation was enacted to prevent. Dimick v. Linnell, 240 Or 509, 511, 402 P2d 734 (1965); Smith v. Portland Traction Co., 226 Or 221, 359 P2d 899 (1961). The reason behind the rule is that when a legislative body has generalized a standard from the experience of the community and prohibits conduct that is likely to cause harm, the court accepts the formulation. Justice Tray-nor in Clinkscales v. Carver, 22 Cal2d 72, 136 P2d 777 (1943).

However, in addition, it is proper for the court to examine preliminarily the appropriateness of the standard as a measure of care for civil litigation under the circumstances presented. F. James, Jr., “Statutory Standards and Negligence in Accident Cases,” 11 La L Rev 95, 111-12 (1950-51); Restatement (Second) of Torts § 286, comment d. (1965). The statute in question prevents making available alcohol to a person who is already visibly intoxicated. This makes the standard particularly inappropriate for the awarding of civil damages because of the extreme difficulty, if *587not impossibility, of determining whether a third party’s injuries would have been caused, in any event, by the already inebriated person. Unless we are prepared to say that an alcoholic drink given after visible intoxication is the cause of a third party’s injuries as a matter of law, a concept not advanced by anyone, the standard would be one almost impossible of application by a factfinder in most circumstances.

2. Moreover, while it does not necessarily follow from the inclusion in the same statute of the prohibitions against purveying alcoholic drinks to minors and to intoxicated persons that a violation of either provision should be treated identically, we have already held in Wiener v. Gamma Phi ATO Frat., 255 Or 632, 485 P2d 18 (1971) that the statute, insofar as minors are concerned, is not an appropriate standard of care in civil damage actions brought by a third party who is injured as the result of the acts of a drunken minor. Hence, we agree with the trial court that a violation of the statute should not constitute negligence as a matter of law in a civil action for damages against its violator.

The regulation promulgated by the commission is an altogether different matter. The regulation requires certain conduct of licensees in the operation of bars. The regulation was issued under OES 471.730(5) which provides:

“The function, duties and powers of the commission include the following:

C6& # * # *

“ (5) To adopt such regulations as are necessary and feasible for carrying out the provisions of this chapter and to amend or repeal such regulations. When such regulations are adopted they shall have the full force and effect of law.”

*588ORS 471.030, entitled “Purpose of Liquor Control Act,” provides, in part, as follows:

“(1) The Liquor Control Act shall be liberally construed so as:

“(a) To prevent the recurrence of abuses associated with saloons or resorts for the consumption of alcoholic beverages.

An examination of the regulation discloses that it concerns matters having a direct relation to the creation of physical disturbances in bars which would, in turn, create a likelihood of injury to customers. A common feature of our western past, now preserved in story and reproduced on the screen hundreds of times, was the carnage of the barroom brawl. No citation of authority is needed to establish that the “abuses associated with saloons,” which the Liquor Control Act seeks to prevent, included permitting on the premises profane, abusive conduct and drunken clientele (now prohibited by the regulation) which results in serious personal injuries to customers in breach of the bar owner’s duty to protect his patrons from harm. We find it reasonable to assume that the commission, in promulgating the regulation, intended to prevent these abuses, and that they had in mind the safety of patrons of bars as well as the general peace and quietude of the community. In view of the quoted purpose of the Act and of the history of injury to innocent patrons of saloons, we cannot assume otherwise.

3. In addition, we see no reason why the standard is not an appropriate one for use in the awarding of civil damages. Because plaintiff was within the class of persons intended to be protected by the regulation *589and the harm caused to him was the kind intended to he prevented by the statute, we hold that the trial court erred in not treating the alleged violations of the regulation as negligence as a matter of law.①

4. Besides contending that the regulation should not be used as a standard of care for the protection of plaintiff, defendant also contends that, in any event, there was insufficient evidence to submit to the jury the questions of whether permitting visibly intoxicated persons to remain upon the premises, and failing to remove them therefrom after they had threatened violence, were causes of the injuries to plaintiff. Defendant argues that there is no proof of causation because it was not shown that one of the persons in the booth inflicted the injuries upon plaintiff, nor, if it is inferred that one of them did, could it be shown that it was as the result of defendant’s failure to remove such persons from the premises. We believe it would be fair for the jury to infer, in the circumstances set forth in the statement of the facts, that plaintiff was injured by one of the persons in the booth who had created the disturbance and that the injuries would not have occurred except for defendant’s violation of the commission’s regulation, as alleged.

The judgment of the trial court is reversed and the case is remanded for a new trial.

Danforth, J.

The defendant made an excavation in one of its public streets, and neither removing or leveling the earth taken therefrom, left it in the way. While the respondent was riding with her husband, the carriage in which they were was, without carelessness on the part of either, upset by the pile of earth, and she was injured. That the street was defective through the culpable omission of duty on the part of the defendant is not denied, but the accident happened on Sunday, and the learned counsel for the appellant claims that it owed no duty to the plaintiff to keep its streets in repair on that day, because it did not appear that she was then traveling “either from necessity or charity,” nor for any purpose permitted by the law. It is plain, therefore, that she was violating the statute relating to the “observance of Sunday” (1 R. S. 628, title 8, chap. 20, art. 8, § 70), but we do not perceive how that fact relieves the defendant.

It imposed an obligation upon the plaintiff to refrain from traveling, and for its violation prescribed a forfeiture of one dollar. It also declares that upon complaint made before a magistrate, and conviction had, that sum might be collected by distress and sale of the goods and chattels of the offender, or if sufficient could not be found, she might be “committed to the common jail for not less than one or more than three days.” The statute goes no further, and we are aware of no principle upon which *222it can be held that the right to maintain an action in respect of special damage resulting from the omission of a defendant to perform a public duty is taken away because the person injured was at the time disobeying a positive law. The courts are required to construe a penal statute strictly, and having before him, for judgment, an alleged violation of the Sunday law, Lord Mansfield said: “If the act of Parliament gives authority to levy but one penalty, there is an end of the question, for there is no penalty at common law.” (Crepps v. Durden, 2 Cowper, 640.) This was a proceeding to enforce the statute, but in Carroll v. Staten Island R. R. Co. (58 N.Y. 126; 17 Am. Pep. 221), an action by a passenger against a carrier to recover damages for injuries received through its carelessness, this court held that the fact, “that the plaintiff was at the time of the injury traveling contrary to the statute,” was no defense to the action. The policy of the statute and its limitations were then considered, and the court refused to add to the penalty imposed by it a forfeiture of the right to indemnity for an injury resulting from the defendant’s negligence.

The Sunday law received a similar construction in Phila., Wil. & Balt. R. R. Co. v. Phil, & Havre de Grace Steam Towboat Co. (23 How. U. S. Sup. Ct. Rep. 209), the court holding that the offender, the plaintiff in the action, was liable to the fine or penalty imposed thereby, and nothing more, saying, “We do not feel justified, therefore, on any principles of justice, equity, or of public policy, in inflicting an additional penalty of $7,000, on the libelants, by way of set-off, because their servants may have been subject to a penalty of twenty-shillings each for breach of the statute.” To the same effect is Baldwin v. Barney (12 R. I. 392 ; 34 Am. Rep. 670).

It may indeed be said that if the plaintiff had obeyed the law, remained at home, and not traveled, the accident would not have happened. That is not enough. The same obedience to the law would have saved the plaintiffs in the cases just cited. It must appear that the disobedience contributed to the accident, or that the statute created a right in the defendant, which it could enforce. But the object of the statute is the *223promotion of public order, and not the advantage of individuals. The traveler is not declared to be a trespasser upon the street, nor was the defendant appointed to close it against her. In such an action the fault which prevents a recovery is one which directly contributes to the accident; as carelessness in driving, either a vicious or unmanageable horse, or at an improper rate of speed, or without observation of the road, or in an insufficient vehicle, or with a defective harness, or in a state of intoxication, or under some other condition of driver, horse or carriage, which may be seen to have brought about the injury.

It may doubtless be said that if the plaintiff had not traveled, she would not have been injured; and this will apply to nearly every case of collision or personal injury from the negligence or willful act of another. Had the injured party not been present he would not have been hurt. But the act of travel is not one which usually results in injury. It, therefore, cannot be regarded as the immediate cause of the accident, and of such only the law takes notice. At common law the act was not unlawful, and the plaintiff was still under its protection, and may resort to it against a wrong-doer by whose act she was injured. This has been held in many cases where the person injured was at the time doing an act prohibited by the city ordinance or general statute (Steele v. Burkhardt, 104 Mass. 59; Welch v. Wesson, 6 Gray, 505; Norris v. Litchfield, 35 N. H. 271), and even violating the law now in question, or one similar to it. Carroll v. Staten Island Co., and Phila., Wil. & Balt. R. R. Co. v. Phila. & Havre de Grace Towboat Co. have already been referred to. (See, also, Schmid v. Humphrey, 48 Iowa, 652; 30 Am. Rep. 414.)

Sutton v. The Town of Wauwatosa (29 Wis. 21; 9 Am. Rep. 534) is in point, not only in its circumstances but in the relations of the parties. The plaintiff was driving his cattle to market on Sunday, and they were injured by the breaking down of a defective bridge which the defendant, through negligence, had failed properly to maintain. The Sunday statute was relied upon, but the town was held liable. In this State a municipal corporation is regarded as a legal entity, and re*224sponsible for its omission to perform corporate duties, to the same extent as a natural person would be under the same circumstances. (Dillon on Municipal Corporations, § 778; Bailey v. The Mayor, 3 Hill, 531.) The authorities, therefore, which deny to an individual through whose negligence another has been injured immunity from the consequences of his wrong, because the injured person was violating the law in question, apply here. Many of them are referred to in the cases named above and need not again be cited.

There are, as the counsel for the appellant contends, authorities the other way. Decisions by very eminent and learned courts. In Vermont. (Johnson v. Town of Irasburgh, 47 Vt. 28 ; 19 Am. Rep. 111; Holcomb v. Town of Danby, 51 Vt. 428.) In Massachusetts. (Bosworth v. Swansey, 10 Metc. 363; Jones v. Andover, 10 Allen, 18.) And immunity is also given by that court, under the same statute, to a railroad corporation through whose negligence the plaintiff was injured. (Smith v. Boston and Maine R. R., 120 Mass. 490 ; 21 Am. Rep. 538.) But the decisions already made by us (Merritt v. Earle, 29 N. Y. 115; Wood v. Erie Railway Co., 72 id. 196 ; 28 Am. Rep. 125 ; Carroll v. Staten Island R. R. Co., supra) are in the contrary direction, and are sustained, we think, by reasons of justice and public policy. In Baldwin v. Barney (supra) a question arising under the Sunday laws of Massachusetts came before the court in an action by one injured in that State, while traveling on Sunday, by the reckless driving of one also traveling. On the trial the plaintiff was non-suited, but on appeal the Massachusetts cases are reviewed and disapproved, and after a very deliberate discussion of the decisions in that and other States the court held that the defendant could not show the illegality of the plaintiff’s act as a defense, and the nonsuit was set aside. There will be seen great conflict in decided cases, but the weight of authority seems to favor the conclusion already reached by us. (Cooley on Torts, § 157; Wharton on Negligence, § 331.)

This result disposes of the appellant’s objections, for they all rest on the assumption that as one could not lawfully travel on *225Sunday, there was negligence either of the plaintiff or her husband, and if of the latter, that it was to be imputed to her. It is indeed suggested by the learned counsel for the appellant, that before the accident the husband “had been drinking,” and “at the time of the accident was driving a fast horse recklessly.” But if it is intended to present this view as ground for reversal it is not tenable, for neither at the close of the plaintiff’s ease, nor at the end of the testimony when a dismissal of the complaint was asked for, was this subject alluded to. I have, moreover, carefully examined the evidence referred to, and find none which would warrant the defense, or permit a jury to find upon the affirmative of such a proposition. The husband had indeed “drank beer,” but the quantity is not stated, nor does it seem to have affected him. Asked by the defendant’s counsel, “had you drank any beer on that day?” answers: “Yes, sir.” “Who did yon drink with?” answers, “Mr. Webber.” And as for the rate of speed at which he was driving, he says : “at an ordinary slow jog, just off a walk.” and we are referred to no evidence which shows the contrary.

It is not necessary to consider whether, if a different condition had been established, the negligence of the husband in those respects could have been imputed to the wife. The defense relied upon, was the Sunday law, and as it is not available, the judgment appealed from should be affirmed with costs.

All concur, except Finch, J., taking no part, and Tracy, J., absent.

Judgmen affirmed.

POSNER, Chief Judge.

We have before us a charming miniature of a case. In 1993 Dolores Howard, age 65, slipped and fell in a puddle of liquid soap that someone — no one knows who — had *359spilled on the floor of the aisle in a Wal-Mart store in Cahokia, Illinois. She was injured, and brought suit against Wal-Mart in an Illinois state court; the defendant removed the case to federal district court. At the time the suit was brought and removed, there was enough possibility that Howard’s injury was severe (the injured leg had become infected) to lift the case just over the then $50,000 threshold for a diversity suit. But later she recovered and at trial asked for only $25,000 in damages. The jury awarded her $18,750. Wal-Mart has appealed out of fear (its lawyer explained to us at argument) of the precedential effect in future slip-and-fall cases of the judge’s refusal to grant judgment for Wal-Mart as a matter of law. We don’t tell people whether to exercise their rights of appeal, but we feel impelled to remind Wal-Mart and its lawyer that a district court’s decision does not have precedential authority, e.g., Old Republic Ins. Co. v. Chuhak & Tecson, P.C., 84 F.3d 998, 1003-04 (7th Cir.1996); Anderson v. Romero, 72 F.3d 518, 525 (7th Cir.1995)—let alone a jury verdict or an unreported order by a magistrate judge (by any judicial officer, for that matter) refusing on unstated grounds to throw out a jury’s verdict.

The issue on appeal is whether there was enough evidence of liability to allow the case to go to a jury, and, specifically, whether there was enough evidence that an employee rather than a customer spilled the soap. See Donoho v. O’Connell’s, Inc., 13 Ill.2d 113, 148 N.E.2d 434 (1958); Wind v. Hy-Vee Food Stores, Inc., 272 Ill.App.3d 149, 208 Ill.Dec. 801, 650 N.E.2d 258, 262 (1995). Even if a customer spilled it, Wal-Mart could be liable if it failed to notice the spill and clean it up within a reasonable time. Donoho v. O’Connell’s, Inc., supra, 148 N.E.2d at 437-38; Swartz v. Sears, Roebuck & Co., 264 Ill.App.3d 254, 201 Ill.Dec. 210, 636 N.E.2d 642, 654 (1993). It has a legal duty to make its premises reasonably safe for its customers. But there is no evidence with regard to how much time elapsed between the spill and the fall; it may have been minutes. Wal-Mart is not required to patrol the aisles continuously, but only at reasonable intervals. See Culli v. Marathon Petroleum Co., 862 F.2d 119 (7th Cir.1988) (collecting Illinois cases). So Howard could prevail only if there was enough evidence that an employee spilled the soap to satisfy the requirement of proving causation by a preponderance of the evidence.

The accident occurred in the morning, and morning is also when the employees stock the shelves. The defendant presented evidence that the puddle of liquid soap on which Howard slipped was about the diameter of a softball and was in the middle of the aisle. Howard testified that it was a large puddle on the right side of the aisle and “when I got up, I had it all over me, my coat, my pants, my shoes, my socks.” An employee could have dropped one of the plastic containers of liquid soap on the floor while trying to shelve it and the container could have broken and leaked. Or the cap on one of the containers might have come loose. Or the containers might have been packed improperly in the box from which they were loaded onto the shelves and one of them might have sprung a leak. Alternatively, as Wal-Mart points out, a customer, or a customer’s child, might have knocked a container off the shelf. A curious feature of the case, however, is that the container that leaked and caused the spill was never found. Howard argues, not implausibly, that a customer who had come across a damaged container or had damaged it would be unlikely to purchase it, having lost part of its contents — a large part, if Howard’s testimony was believed; and the jury was entitled to believe it — or indeed to put it in her shopping cart and risk smearing her other purchases with liquid soap. In light of this consideration, we cannot say that the jury was irrational in finding that the balance of probabilities tipped in favor of the plaintiff, though surely only by a hair’s breadth.

Is a hair’s breadth enough, though? Judges, and commentators on the law of evidence, have been troubled by cases in which the plaintiff has established a probability that only minutely exceeds 50 percent that his version of what happened is correct. The concern is illuminated by the much-discussed bus hypothetical. Suppose that the plaintiff is hit by a bus, and it is known that 51 percent of the buses on the road *360where the plaintiff was hit are owned by Bus Company A and 49 percent by Company B. The plaintiff sues A and asks for judgment on the basis of this statistic alone (we can ignore the other elements of liability besides causation by assuming they have all been satisfied, as in this case); he tenders no other evidence. If the defendant also puts in no evidence, should a jury be allowed to award judgment to the plaintiff? The law’s answer is “no.” See Richard W. Wright, “Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts,” 73 la. L. Rev. 1001, 1050-1051 (1988), and cases cited there. Our hypothetical ease is a variant of Smith v. Rapid Transit, 317 Mass. 469, 58 N.E.2d 754 (1945), where the court held that it “was not enough” “that perhaps the mathematical chances somewhat favor the proposition that a bus of the defendant caused the accident.” Id. at 755. Kaminsky v. Hertz Corp., 94 Mich.App. 356, 288 N.W.2d 426 (1979), is sometimes cited as being contrary to Smith, but this is not an accurate reading. Besides the fact that the corresponding percentages were 90 percent and 10 percent, there was nonstatistical evidence pointing to the defendant’s ownership of the truck that had caused the accident.

Smith and Kaminsky involve explicitly probabilistic evidence. But as all evidence is probabilistic in the sense of lacking absolute certainty, all evidence can be expressed in probabilistic terms, and so the problem or dilemma presented by those cases is general. The eyewitness might say that he was “99 percent sure” that he had seen the defendant, and jurors appraising his testimony might reckon some different probability that he was correct. What powers the intuition that the plaintiff should lose the bus case is not the explicitly probabilistic nature of the evidence, but the evidentiary significance of missing evidence. If the 51/49 statistic is the plaintiff’s only evidence, and he does not show that it was infeasible for him to obtain any additional evidence, the inference to be drawn is not that there is a 51 percent probability that it was a bus owned by A that hit the plaintiff. It is that the plaintiff either investigated and discovered that the bus was actually owned by B (and B might not have been negligent and so not liable even if a cause of the accident, or might be judgment-proof and so not worth suing), or that he simply has not bothered to conduct an investigation. If the first alternative is true, he should of course lose; and since it may be true, the probability that the plaintiff was hit by a bus owned by A is less than 51 percent and the plaintiff has failed to carry his burden of proof. If the second alternative is true — the plaintiff just hasn’t conducted an investigation — he still should lose. A court shouldn’t be required to expend its scarce resources of time and effort on a case until the plaintiff has conducted a sufficient investigation to make reasonably clear that an expenditure of public resources is likely to yield a significant social benefit. This principle is implicit in the law’s decision to place the burden of producing evidence on the plaintiff rather than on the defendant. Suppose it would cost the court system $10,000 to try even a barebones case. This expenditure would be worthless from the standpoint of deterring accidents should it turn out that the bus was owned by B. It makes sense for the court to require some advance investigation by the plaintiff in order to increase the probability that a commitment of judicial resources would be worthwhile.

These objections to basing a decision on thin evidence do not apply to the present case. Not only is there no reason to suspect that the plaintiff is holding back unfavorable evidence; it would have been unreasonable, given the stakes, to expect her to conduct a more thorough investigation. This is a tiny case; not so tiny that it can be expelled from the federal court system without a decision, but so tiny that it would make no sense to try to coerce the parties to produce more evidence, when, as we have said, no inference can be drawn from the paucity of evidence that the plaintiff was afraid to look harder for fear that she would discover that a customer and not an employee of Wal-Mart had spilled the soap.

We conclude, therefore, that the jury verdict must stand. And, Wal-Mart, this decision, a reported appellate decision, unlike the *361decision of the district court, will have precedential authority!

Affirmed.

OPINION

RILEY ANDERSON, Chief Justice.

We granted the application for permission to appeal in this slip and fall case to decide the issue of whether the defendant can attribute fault to an unidentified, or “phantom,” tortfeasor.

In this case, the plaintiff was injured when he slipped on ice and water that had been spilled on the floor in defendant’s store. The defendant argued that the jury should be allowed to consider the fault of the unidentified tortfeasor responsible for spilling the ice and water.

The trial judge instructed the jury that it could consider the fault of the unidentified tortfeasor, and the jury found that the plaintiff had sustained damages in the total amount of $2,625.00. The jury assigned 30% of fault to the defendant and 70% of fault to the unidentified tortfeasor. Upon the plaintiffs motion for a new trial, however, the trial judge issued an order assigning 100% of plaintiffs damages to defendant, finding that it had erred in allowing the jury to assign fault to the unidentified tortfeasor. Accordingly, the trial judge overruled the motion for new trial and held the defendant hable for the entire judgment.

The Court of Appeals affirmed the trial court’s judgment, emphasizing the jury’s finding that the defendant was negligent and holding that the defendant should not be able to attribute any of the fault to an unidentified nonparty unless the defendant can prove the “existence” of the nonparty “whose fault contributed to the plaintiffs injuries by clear and convincing evidence.” *786Because the defendant failed to do so, the Court of Appeals held that “the trial judge correctly attributed all the fault to the original defendant.”

After our consideration of the record, the parties’ arguments, and the applicable authority, we conclude that the defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn.Code Ann. § 20-1-119 (1994 & Supp.1999), even if the defendant establishes the nonparty’s existence by clear and convincing evidence.

BACKGROUND

Three-year-old Mitchell Brown broke his ankle when he slipped and fell on ice and water in the vestibule of defendant Wal-Mart’s store. At trial, Mitchell Brown’s mother, Lisa Brown, testified that she entered the vestibule with her two young children and walked toward the pay telephone to make a call to her husband. As she proceeded to make the call, Ms. Brown saw that her children were standing in the middle of ice and water spilled on the floor. She testified that as soon as she stretched out her hand and told her children to come toward her, her son Mitchell fell. Ms. Brown also testified that when she first entered the store, she noticed a Wal-Mart employee standing at a door to the vestibule.

There was no evidence presented concerning who spilled the ice and water. According to the testimony of Mark Morgan, the assistant manager on duty at the time of the accident, both a cup and the ice on the floor were from Wal-Mart’s self-serve fountain drink dispenser.

Morgan testified that Wal-Mart’s policy was to restrict all drinks to the snack area of the store. Morgan conceded, however, that he was aware of customers carrying drinks throughout the store and that a customer could enter the store, purchase a-drink, and leave through any of the store’s exits without violating the policy to restrict drinks to the snack area. Moreover, Kevin Brewer, a Wal-Mart employee working on the day of the accident, testified that he could get fired if he were to stop anyone from leaving the snack area with a drink.

Brewer also testified, that he was responsible for maintaining the safety of the vestibule. He stated that he had walked through the vestibule “probably within the last five minutes” before the accident occurred and that he had not seen any spills on the floor. Brewer claimed that when he cleaned up the spill after the accident, the ice cubes “were still in ice form ... still real hardened,” so he believed that the spill had not been on the floor for a very long period of time.

At the close of the proof, the trial court instructed the jury that they

must determine the fault, if any, of the parties,... What I’m talking about when I say “parties” in this case is the unknown — what the law calls an unknown tortfeasor. [Wal-Mart’s counsel] argued to you about this person or persons who left this cup of ice on the floor — that unknown person.

The jury found that plaintiff suffered damages in amount of $2,625.00, and assigned 30% of the fault to Wal-Mart and 70% of fault to the “unknown person.” Consequently, the court ordered that Wal-Mart pay the plaintiff $787.50.

The plaintiff filed a motion for a new trial, arguing that the trial court erred by allowing the jury to consider the fault of the unidentified nonparty. The trial court agreed with the plaintiff, stating that “[t]here is no way the Plaintiff in the instant case could sue and obtain judgment against whomever left the cup of ice on the floor at Wal-Mart, because no one knows who to sue.” Because the trial court was satisfied with the jury’s assessment of plaintiffs total damages, it overruled the motion for a new trial but ordered that the judgment of $2,625.00 would “remain intact,” which effectively assigned 100% of the fault to Wal-Mart.

*787On appeal, the Court of Appeals affirmed the trial court, stressing that the jury must have found that Wal-Mart had constructive notice of the dangerous condition. The Court of Appeals further reasoned, however, that the “phantom tortfeasor” defense is consistent with this Court’s cases since our adoption of a modified version of comparative fault. Accordingly, the Court of Appeals held that “[s]ince the phantom tortfeasor defense can be easily abused, we think the original defendant should be required to prove the existence of a third party whose fault contributed to the plaintiffs injuries by clear and convincing evidence.” Because the court found that the defendant had failed to do so, it concluded that “the trial judge correctly attributed all the fault to the original defendant.”

We granted defendant Wal-Mart’s application for permission to appeal.

DISCUSSION

The issue presented is a question of law, and our review is de novo with no presumption of correctness. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn.1996).

We begin our analysis with the Tennessee Rules of Civil Procedure, which govern complaints and answers. Wal-Mart argues that under the Tennessee Rules of Civil Procedure, a defendant need only describe another potential tortfeasor in an answer in order for the jury to attribute fault to such a tortfeasor. Tenn. R. Civ. P. 8.03. This rule states in pertinent part:

In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute ... comparative fault (including the identity or description of any other alleged tortfeasors).

Id. (emphasis added). According to Wal-Mart, the language “identity or description” could arguably encompass an unidentified comparative tortfeasor.

Rule 8.03 is a rule of pleading which allows a defendant to allege that a nonparty contributed to the plaintiffs damages, ultimately allowing the plaintiff to plead and serve, and the trier of fact to assign fault to, the comparative tortfeasor alleged in defendant’s answer. Rule 8.03 contemplates that at the pleading stage, either the identity or a description of another potential tortfeasor is sufficient to initiate discovery. Cf. George v. Alexander, 931 S.W.2d 517, 521-22 (Tenn.1996) (reasoning that a defendant intending to argue that a nonparty was the cause in fact of plaintiffs injury must identify or describe the non-party in strict adherence to Tenn. R. Civ. P. 8.03 because a plaintiff should be afforded timely notice of the other potential tort-feasor). Tennessee’s case law and statutory law both indicate, however, that when pre-trial discovery fails to identify the “described” comparative tortfeasor alleged in defendant’s answer, the defendant should not be allowed to argue, and the trier of fact should not be permitted to make a determination, that a percentage of fault should be attributed to the unidentified nonparty.

This Court expressed its concern regarding future cases involving nonparties when we adopted a modified version of comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992). In adopting comparative fault, we attempted to reconcile the plaintiffs interest in being made whole with the defendant’s interest in paying only that percentage of damages for which that particular defendant is responsible. We anticipated, however, that situations would arise in which one of these interests must yield to the other and that many issues regarding “nonparty” tortfeasors must “await an appropriate controversy.” Id. at 60 (opinion on petition to rehear). In this regard, we stated that:

fairness and efficiency require that defendants called upon to answer allegations in negligence be permitted to allege, as an affirmative defense, that a nonparty caused or contributed to the *788injury or damage for which recovery is sought.... However, in order for a plaintiff to recover a judgment against such additional person, the plaintiff must have made a timely amendment to his complaint and caused process to be served on such additional person. Thereafter, the additional party will be required to answer the amended complaint.

Id. at 58 (emphasis added).

The legislature responded to our decision in McIntyre by enacting Tenn.Code Ann. § 20-1-119 to enable a plaintiff to plead and serve nonparties alleged in a defendant’s answer as potential tortfeasors. This section applies when a defendant raises comparative fault as an affirmative defense and the statute of limitations would otherwise bar the plaintiffs cause of action against the comparative tortfeasor alleged in defendant’s answer. Within ninety days of the filing of the defendant’s answer alleging that a person not a party to the suit caused or contributed to the injury or damages for which the plaintiff seeks recovery, the plaintiff may either “[a]mend the complaint to add such person as a defendant” or “[i]nstitute a separate action against that person.” Tenn.Code Ann. § 20 — 1—119(a)(1), (2). “Person” is defined as “any individual or legal entity.” Tenn.Code Ann. § 20-1-119(f).

Accordingly, in providing that a plaintiff should either amend the complaint or institute a separate suit against the “person” alleged as a comparative tortfeasor in defendant’s answer, Tenn.Code Ann. § 20-1-119 contemplates that the plaintiff will actually know the identity of the alleged individual or entity. See Ridings, 914 S.W.2d at 82 (stating that this section “contemplates that those persons to whom fault may be attributed are limited to those against whom liability for the plaintiffs damages may be asserted.”). Contrary to the conclusion of the Court of Appeals, clear and convincing evidence of the existence of a phantom tortfeasor is not sufficient identification for purposes of pleading and serving process. In our view, unless the nonparty is identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn.Code Ann. § 20-1-119, the trial court should not permit the attribution of fault to the nonparty.

Despite Tennessee’s rules of pleading and statutory developments since McIntyre, Wal-Mart argues that the case of Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252 (Tenn.1997), permits the attribution of fault against a “phantom” tort-feasor. We disagree.

Snyder was a products liability case involving an employee who was injured by an allegedly defective product in the course and scope of his employment. In that case, we emphasized that a defendant product manufacturer should not “effectively be precluded from presenting a defense.” Id. at 256. We reasoned:

A defense that the product was not defective or unreasonably dangerous when it left the defendants’ control would not be credible unless the defendants were permitted to introduce evidence as to what actually happened to the product leading up to the incident that injured the plaintiff.

Id. Accordingly, we held that the jury could consider the immune employer’s conduct in determining the cause in fact of plaintiffs injuries. The jury in Snyder, however, was precluded from assigning fault to a party against whom the plaintiff could not assert a cause of action. We therefore reject Wal-Mart’s argument that Snyder demands a different outcome in this case.

From our review of other jurisdictions, it appears that the resolution of this issue of an unidentified, or “phantom,” tortfea-sor depends primarily upon how each jurisdiction interprets its own comparative fault statute and rules of pleading, and that there is not a clear majority rule. *789However, we find persuasive the policy reasons relied upon by the Superior Court of New Jersey, which is also a modified comparative fault state, in the case of Bencivenga v. Inc., 258 N.J.Super. 399, 609 A.2d 1299 (App.Div.1992). In holding that an unidentified tortfeasor may not be considered when apportioning fault, the court reasoned:

The amount of plaintiffs judgment and amount of defendant’s liability will vary depending upon whether the absent-unnamed person’s negligence is considered by the fact finder. Defendant, however, has a greater incentive to join and name additional potential tortfeasors or to see that they are identified.... Thus, defendant has significant incentive in naming and joining multiple tortfeasors so as to create the potential for diminishing defendant’s. percentage of liability.... Given that incentive, it is appropriate to place upon defendant the burden of finding and naming any additional person since it is to defendant’s advantage to spread the risk or defeat the claim.

Id. at 1304. As the New Jersey court recognized, a defendant has a substantial interest in finding and naming all potential tortfeasors in order to diminish its percentage of fault. In our view, to allow a defendant to attribute fault to an unidentified nonparty would not only diminish a defendant’s incentive to identify additional tortfeasors, cf. George, 931 S.W.2d at 521-22, but also would effectively impose a burden on the plaintiff to “defend” the unidentified nonparty.

Finally, in light of our conclusion that the trier of fact should not have been permitted to assign fault to an unidentified nonparty, we agree with the Court of Appeals that the trial judge did not err in assigning 100% of the fault to Wal-Mart upon the plaintiffs motion for a new trial. The trial judge did not usurp the role of the jury as we cautioned against in Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn.1997) (where trial court “correctly determined that it lacked the authority to reapportion ... fault in its role as thirteenth juror ). Rather, as the Court of Appeals reasoned, “the [trial judge] was assigning 100 percent of the damages assessed by the jury to Defendant in light of the legal conclusion that Defendant’s fault could not be shared with an unknown tortfeasor.” Accordingly, we affirm the Court of Appeals decision that Wal-Mart is liable for the entire judgment of $2,625.00.

CONCLUSION

After our review of the record, the parties’ arguments, and applicable authority, we conclude that a defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn.Code Ann. § 20-1-119, even if the defendant establishes the non-party’s existence by clear and convincing evidence. Consequently, we affirm the Court of Appeals’ judgment as modified on the separate grounds stated. Costs of appeal shall be paid by the defendant for which execution shall issue if necessary.

DROWOTA, BIRCH, HOLDER, BARKER, JJ., concur.

SANDERS, Justice.

This is a tort action. Plaintiff, the 67-year-old widow of Tanner Perkins, seeks damages for the death of her husband in the collision of an automobile, in which he was riding, with a train of the defendant railroad. The district court awarded damages. The Court of Appeal affirmed.1 We granted certiorari to review the judgment of the Court of Appeal.

The tragic accident which gave rise to this litigation occurred at the intersection of Eddy Street and The Texas and New Orleans Railroad Company track in the town of Vinton, Louisiana, at approximately 6:02 a. m., after daylight, on September 28, 1959. At this crossing Eddy Street runs north and south, and the railroad track, east and west. Involved was a 113-car freight train pulled by four diesel engines traveling east and a Dodge auto*647mobile driven by Joe Foreman in a southerly direction on Eddy Street. Tanner Perkins, a guest passenger, was riding in the front seat of the automobile with the driver.

Located in the northwest quadrant of the intersection of the railroad track and Eddy Street was a warehouse five hundred feet long. A “house track” paralleled the main track on the north to serve the warehouse. This warehouse obstructed the view to the west of an automobile driver approaching the railroad crossing from the north on Eddy Street. It likewise obstructed the view to the north of trainmen approaching the crossing from the west. Having previously served on this route, the engineer and brakeman were aware of this obstruction.

To warn the public of the approach of trains, the defendant railroad had installed at the crossing an automatic signal device consisting of a swinging red light and a bell. At the time of the accident, this signal was operating. A standard Louisiana railroad stop sign and an intersection stop sign were also located at the crossing.

Proceeding east, the train approached the intersection with its headlight burning, its bell ringing, and its whistle blowing.

The engineer, brakeman, and fireman were stationed in the forward engine of the train. The engineer was seated on the right or south side, where he was unable to observe an automobile approaching from the left of the engine. The brakeman and fireman, who were seated on the left or north side of the engine, were looking forward as the train approached the intersection. These two crewmen saw the automobile emerge from behind the warehouse. At that time the front wheels of the automobile were on or across the north rail of the house track. The fireman estimated that the train was approximately 60 feet from the crossing when the automobile emerged from behind the warehouse. The brakeman, however, estimated that the train was 30 to 40 feet from the crossing at the time the automobile came into view. Both crewmen immediately shouted a warning to the engineer, who applied the emergency brakes. The train struck the right side of the automobile and carried it approximately 1250 feet. The two occupants were inside the automobile when it came to rest. Both were killed.

The speed of the automobile in which Tanner Perkins was riding was variously estimated from 3-4 miles per hour to 20-25 miles per hour.

The plaintiff and defendant railroad concede in their pleadings that Joe Foreman, the driver of the automobile, was negligent in driving upon the track in front of the train and that his negligence was a proximate cause of the death of Tanner Perkins.2

It is conceded that the railroad’s safety regulations imposed a speed limit of 25 miles per hour on trains in the town of Vinton. The plaintiff has conceded in this Court that this self-imposed speed limit was a safe speed at the crossing. The train was in fact traveling at a speed of 37 miles per hour.

Applicable here is the rule that the violation by trainmen of the railroad’s own speed regulations adopted in the interest of safety is evidence of negligence.3 The rule has special force in the instant-case because of the unusually hazardous nature of the crossing. We find, as did the *648Court of Appeal, that the trainmen were negligent in operating the train 12 miles per hour in excess of the speed limit.

As one of several defenses, the defendant railroad strenuously contends that the excessive speed of the train was not a proximate cause of the collision for the reason that the accident would not have been averted even had the train been traveling at the prescribed speed of 25 miles per hour. Contrariwise, the plaintiff contends that the speed of the train constituted a “proximate, direct and contributing cause” of the accident.

Thus presented, the prime issue in this case is whether the excessive speed of the train was a cause in fact4 of the fatal collision.

It is fundamental that negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought.5 It need not, of course, be the sole cause. Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm. Under the circumstances of the instant case, the excessive speed was undoubtedly a substantial factor in bringing about the collision if the collision would not have occurred without it. On the other hand, if the collision would have occurred irrespective of such negligence, then it was not a substantial factor.6

The burden of proving this causal link is upon the plaintiff.7 Recognizing that the fact of causation is not susceptible of proof to a mathematical certainty, the law requires only that the evidence show that it is more probable than not that the harm was caused by the tortious conduct of the defendant.8 Stated differently, it must appear that it is more likely than not that the harm would have been averted but for the negligence of the defendant. .

In the instant case the train engineer testified that at a speed of 25 miles per hour he would have been unable to stop the train in time to avoid the accident. Other facts of record support his testimony in this regard. With efficient brakes, the mile-long train required 1250 feet to stop at a speed of 37 miles per hour. It is clear, then, that even at the concededly safe speed of 25 miles per hour, the momentum of the train would have, under the circumstances, carried it well beyond the crossing. This finding, of course, does not fully determine whether the collision would have been averted at the slower speed. The automobile was also in motion during the crucial period. This necessitates the further inquiry of whether the automobile would have cleared the track and evaded the impact had the train been moving at a proper speed at the time the trainmen observed the automobile emerge from behind the warehouse.9 Basic to this inquiry are the *649speed of the automobile and the driving distance between it and a position of safety.

The testimony of the witnesses is in hopeless conflict as to the speed of the automobile at the time of the collision. The estimates range from a low of 3 miles per hour to a high of 25 miles per hour. Both the district court and Court of Appeal concluded that the speed of the automobile had not been definitely established. Each of these courts found only that the automobile was proceeding at “a slow speed.” In her brief the plaintiff states: “The speed of the automobile cannot be determined, at least by the testimony.” We conclude that the evidence fails to establish the speed of the automobile with reasonable certainty.

Although the record discloses that the train struck the automobile broadside, it does not reflect the driving distance required to propel the vehicle from the danger zone.

Finally, we also note that the defendant railroad produced testimony, which is the only testimony of record on this point, that the deceased made no attempt to leave the moving automobile. That he was in the vehicle when it came to rest is undisputed. Moreover, the record fails to reflect the distance required for the deceased to scramble past the diesel engine to a place of safety, had he succeeded in getting out of the automobile.

Despite these deficiencies in the evidence, the plaintiff argues that had the train been traveling at a proper speed the driver of the automobile would “conceivably” have had some additional time to take measures to avert disaster and the deceased would have had some additional time to extricate himself from danger. Hence, the plaintiff reasons, the collision and loss of life “might not” have occurred.

On the facts of this case, we must reject the escape theory advanced in this argument. Because of the deficiencies in the evidence which we have already noted, it is devoid of evidentiary support. The record contains no probative facts from which the Court can draw a reasonable inference of causation under this theory. In essence, the argument is pure conjecture.

Based upon the evidence of record, it appears almost certain that the fatal accident would have occurred irrespective of the excessive speed of the train. It follows that this speed was not a substantial factor in bringing about the accident.

We conclude that the plaintiff has failed to discharge the burden of proving that the negligence of the defendant was a cause in fact of the tragic death. The judgment in favor of plaintiff is manifestly erroneous.

For the reasons assigned, the judgment of the Court of Appeal is reversed, and the plaintiff’s suit is dismissed at her cost.

HAMITER, J., dissents, being of the opinion that the decree of the Court of Appeal should be affirmed.

HAMLIN, J., dissents with written reasons.

HAMLIN, Justice

(dissenting).

I am compelled to agree with the Court of Appeal that in view of the blind crossing the overspeeding by the employees of the Railroad Company was negligence, which was a proximate cause of the accident.

It is my opinion that this train (approxii mately on mile long, made up of one hundred and thirteen cars and four diesels) should not have entered the Town of Vinton at thirty-seven miles per hour, its speed at the time of the accident. Notwithstanding the rules of the Railroad Company that its speed in Vinton should not have exceeded twenty-five miles per hour, even this speed, under the circumstances found by the Court of Appeal, would be excessive.

I respectfully dissent.

CARTER, J.

Each of the two defendants appeals from a judgment against them in an action for personal injuries. Pursuant to stipulation the appeals have been consolidated.

Plaintiff’s action was against both defendants for an injury to his right eye and face as the result of being struck by bird shot discharged from a shotgun. The case was. tried by the court without a jury and the court found that on November 20, 1945, plaintiff and the two defendants were hunting quail on the open range. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7% size shot. Prior to going hunting plaintiff discussed the hunting procedure with defendants, indicating that they were to exercise care when shooting and to “keep in line.” In the course of hunting plaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. The view of defendants with reference to plaintiff was unobstructed and they knew his location. Defendant Tice flushed a quail which rose in flight to a 10-foot elevation and flew between plaintiff and defendants. Both defendants shot at the quail, shooting in plaintiff’s direction. At that time defendants were 75 yards from plaintiff. One shot struck plaintiff in his eye and another in his upper lip. Finally it was found by the court that as *83the direct result of the shooting by defendants the shots struck plaintiff as above mentioned and that defendants were negligent in so shooting and plaintiff was not contributorily negligent.

First, on the subject of negligence, defendant Simon-son contends that the evidence is insufficient to sustain the finding on that score, but he does not point out wherein it is lacking. There is evidence that both defendants, at about the same time or one immediately after the other, shot at a quail and in so doing shot toward plaintiff who was uphill from them, and that they knew his location. That is sufficient from which the trial court could conclude that they acted with respect to plaintiff other than as persons of ordinary prudence. The issue was one of fact for the trial court. (See, Rudd v. Byrnes, 156 Cal. 636 [105 P. 957, 20 Ann.Cas. 124, 26 L.R.A. N.S.134].)

Defendant Tice states in his opening brief, “we have decided not to argue the insufficiency of negligence on the part of defendant Tice.” It is true he states in his answer to plaintiff’s petition for a hearing in this court that he did not concede this point but he does not argue it. Nothing more need be said on the subject.

Defendant Simonson urges that plaintiff was guilty of contributory negligence and assumed the risk as a matter of law. He cites no authority for the proposition that by going on a hunting party the various hunters assume the risk of negligence on the part of their companions. Such a tenet is not reasonable. It is true that plaintiff suggested that they all “stay in line,” presumably abreast, while hunting, and he went uphill at somewhat of a right angle to the hunting line, but he also cautioned that they use care, and defendants knew plaintiff’s position. We hold, therefore, that the trial court was justified in finding that he did not assume the risk or act other than as a person of ordinary prudence under the circumstances. (See, Anthony v. Hobbie, 25 Cal.2d 814, 818 [155 P.2d 826] ; Rudd v. Byrnes, supra.) None of the cases cited by Simonson are in point.

The problem presented in this case is whether the judgment against both defendants may stand. It is argued by defendants that they are not joint tort feasors, and thus jointly and severally liable, as they were not acting in concert, and that there is not sufficient evidence to show which defendant was guilty of the negligence which caused the injuries—the shooting by Tice or that by Simonson. Tice argues that there is *84evidence to show that the shot which struck plaintiff came from Simonson’s gun because of admissions allegedly made by him to third persons and no evidence that they came from his gun. Further in connection with the latter contention, the court failed to find on plaintiff’s allegation in his complaint that he did not know which one was at fault—did not find which defendant was guilty of the negligence which caused the injuries to plaintiff.

Considering the last argument first, we believe it is clear that the court sufficiently found on the issue that defendants were jointly liable and that thus the negligence of both was the cause of the injury or to that legal effect. It found that both defendants were negligent and “That as a direct and proximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did lodge in plaintiff’s right eye and that another birdshot pellet was caused to and did lodge in plaintiff’s upper lip.” In so doing the court evidently did not give credence to the admissions of Simonson to third persons that he fired the shots, which it was justified in doing. It thus determined that the negligence of both defendants was the legal cause of the injury—or that both were responsible. Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them. The one shot that entered plaintiff’s eye was the major factor in assessing damages and that shot could not have come from the gun of both defendants. It was from one or the other only.

It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the- injury suffered by the third person, although the negligence of only one of them could have caused the injury. (Moore v. Foster, 182 Miss. 15 [180 So. 73]; Oliver v. Miles, 144 Miss. 852 [110 So. 666; 50 A.L.R. 357]; Reyher v. Mayne, 90 Colo. 586 [10 P.2d 1109]; Benson v. Ross, 143 Mich. 452 [106 N.W. 1120, 114 Am.St.Rep. 675].) The same rule has been applied in criminal cases (State v. Newberg, 129 Ore. 564 [278 P. 568, 63 A.L.R. 1225]), and both drivers have been held liable for the negligence of one where they engaged in a racing contest causing an injury to d third person (Saisa v. Lilja, 76 F.2d 380). These cases speak of the action of defendants as being in concert as the ground *85if decision, yet it would seem they are straining that concept and the more reasonable basis appears in Oliver v. Miles, supra. There two persons were hunting together. Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was travelling on it. The court stated they were acting in concert and thus both were liable. The court then stated: “ We think that . . . each is liable for the resulting injury to the boy, although no one can say definitely who actually shot him. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence.” [Emphasis added.] (P. 668 [110 So.'].) It is said in the Restatement: “For harm resulting to a third person from the tortious conduct of another, a person is liable if he . . . (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.” (Rest., Torts, § 876(b) (c).) Under subsection (b) the example is given: “A and B are members of a hunting party. Each of them in the presence of the other shoots across a public road at an animal, this being negligent as to persons on the road. A hits the animal. B’s bullet strikes C, a traveler on the road. A is liable to C.” (Rest., Torts, § 876 (b), com., illus. 3.) An illustration given under subsection (c) is the same as above except the factor of both defendants shooting is missing and joint liability is not imposed. It is further said that: “If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence may be held by the jury to be a substantial factor in bringing it about.” (Rest., Torts, § 432.) Dean Wigmore has this to say: “When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person’s two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm, (b) ... The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how *86much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves. Since, then, the difficulty of proof is the reason, the rule should apply whenever the harm has plural causes, and not merely when they acted in conscious concert. ...” (Wigmore, Select Cases on the Law of Torts, § 153.) Similarly Professor Carpenter has said: “[Suppose] the case where A and B independently shoot at C and but one bullet touches C’s body. In such case, such proof as is ordinarily required that either A or B shot C, of course fails. It is suggested that there should be a relaxation of the proof required of the plaintiff . . . where the injury occurs as the result of one where more than one independent force is operating, and it is impossible to determine that the force set in operation by defendant did not in fact constitute a cause of the damage, and where it may have caused the damage, but the plaintiff is unable to establish that it was a cause.” (20 Cal.L.Rev. 406.)

When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers—both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer evidence' to determine which one caused the injury. This reasoning has recently found favor in this court. In a quite analogous situation this court held that a patient injured while unconscious on an operating table in a hospital could hold all or any of the persons who had any connection with the operation even though he could not select the particular acts by the particular person which led to his disability. (Ybarra v. Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258].) There the court was considering whether the patient could avail himself of res ipsa loquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff has made out a case when he has produced evidence which gives rise to an inference of negligence which was the proximate cause of the injury. It is up to *87defendants to explain the cause of the injury. It was there said: “If the doctrine is to continue to serve a useful purpose, we should not forget that ‘the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.’ ” (P. 490.) Similarly in the instant case plaintiff is not able to establish which of defendants caused his injury.

The foregoing discussion disposes of the authorities cited by defendants such as Kraft v. Smith, 24 Cal.2d 124 [148 P.2d 23], and Hernandez v. Southern California Gas Co., 213 Cal. 384 [2 P.2d 360], stating the general rule that one defendant is not liable for the independent tort of the other defendant, or that ordinarily the plaintiff must show a causal connection between the negligence and the injury. There was an entire lack of such connection in the Hernandez ease and there were not several negligent defendants, one of whom must have caused the injury.

Defendants rely upon Christensen v. Los Angeles Electrical Supply Co., 112 Cal.App. 629 [297 P. 614], holding that a defendant is not liable where he negligently knocks down with his car a pedestrian and a third person then ran over the prostrate person. That involves the question of intervening cause which we do not have here. Moreover it is out of harmony with the current rule on that subject and was properly questioned in Hill v. Peres, 136 Cal.App. 132 [28 P.2d 946] (hearing in this Court denied), and must be deemed disapproved. (See, Mosley v. Arden Farms Co., 26 Cal. 2d 213 [157 P.2d 372, 158 A.L.R. 872]; Sawyer v. Southern California Gas Co., 206 Cal. 366 [274 P. 544]; 2 Cal.Jur. 10-Yr. Supp. Automobiles, § 349; 19 Cal.Jur. 570-572.)

Cases are cited for the proposition that where two or more tort feasors acting independently of each other cause an injury to plaintiff, they are not joint tort feasors and plaintiff must establish the portion of the damage caused by each, even though it is impossible to prove the portion of the injury caused by each. (See, Slater v. Pacific American Oil Co., 212 Cal. 648 [300 P. 31]; Miller v. Highland Ditch Co., 87 Cal. 430 [25 P. 550, 22 Am.St.Rep. 254]; People v. Gold Run D. & M. Co., 66 Cal. 138 [4 P. 1152, 56 Am.Rep. 80]; Wade v. Thorsen, 5 Cal.App.2d 706 [43 P.2d 592]; California O. Co. v. Riverside P. C. Co., 50 Cal.App. 522 [195 P. 694]; *88 City of Oakland v. Pacific Gas & E. Co., 47 Cal.App.2d 444 [118 P.2d 328].) In view of the foregoing discussion it is apparent that defendants in cases like the present one may be treated as liable on the same basis as joint tort feasors, and hence the last-cited cases are distinguishable inasmuch as they involve independent tort feasors.

In addition to that, however, it should be pointed out that the same reasons of policy and justice shift the burden to each of defendants to absolve himself if he can—relieving the wronged person of the duty of apportioning the injury to a particular defendant, apply here where we are concerned with whether plaintiff is required to supply evidence for the apportionment of damages. If defendants are independent tort feasors and thus each liable for the damage caused by him alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. (See, Colonial Ins. Co., v. Industrial Acc. Com., 29 Cal.2d 79 [172 P.2d 884].) Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tort feasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not in a position to complain of uncertainty. (California O. Co. v. Riverside P. C. Co., supra.)

It is urged that plaintiff now has changed the theory of his case in claiming a concert of action; that he did not plead or prove such concert. From what has been said it is clear that there has been no change in theory. The joint liability, as well as the lack of knowledge as to which defendant was liable, was pleaded and the proof developed the ease under either theory. We have seen that for the reasons of policy discussed herein, the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently.

The judgment is affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.

Appellant Tice’s petition for a rehearing was denied December 16, 1948.

Hogan, J.

This action was brought by plaintiff to recover damages alleged to have been sustained by him due to drinking contaminated water from the defendant’s domestic service.

During the year 1910 and for many years prior thereto the defendant under legislative authority was engaged in the business of selling water to its inhabitants. A duty was imposed on the commissioner of public works to provide an abundant supply of wholesome water for public and private use, to devise plans and sources of water supply, to plan and supervise the distribution of water through the city and to protect it against contamination. The city has two systems of water supply. One for potable water brought by it from Hemlock lake some distance south of the city to reservoirs near the city and thence distributed by gravity to consumers. That system is known as the Hemlock system. The second or Holly system for fire purposes in the business district, the water being pumped from the Genesee river near the center of the city into a separate set of distributing pipes. The Holly system carried a pressure of from sixty to seventy pounds to the square inch which *518in case of fire was increased to one hundred thirty pounds. The pressure in Hemlock system was about fifty pounds to the square inch. The Erie canal ran through the city. A number of hit bridges, including one at Brown street, crossed the same. The bridges were raised by admitting water under pressure to a cylinder forcing a piston out and raising the platform of the bridge. The pipes furnishing water to the cylinders were “Y” shaped; one branch being connected with the Hemlock system and the second branch with the Holly system. Gates were installed in each pipe at a point about 20 feet back from the place of connection with the “Y” pipe to control the flow of waters therein. If the gates in both pipes were open at one time both systems would discharge water into the “Y” pipe. If one gate was closed the discharge would be confined to the other pipe. The employees of the city had possession of the wrenches or keys by which these gates could be opened or closed, the water for operating the bridge being furnished by the city.

A check valve was installed in the Hemlock pipe at a point between the gate and the piston pipe for the purpose of preventing the water from the Holly system entering the pipe of the Hemlock system as it otherwise would when the gates in both pipes were open because of the greater pressure in the Holly system; thus when the pressure of the water is toward the piston pipe the valve will open and permit' the water to flow freely, but when the stronger pressure is from the opposite direction the valve closes and remains closed so long as the greater pressure remains. When closed the water from the Holly system is prevented from entering the Hemlock system pipes.

Above the point where the defendant pumps water from the Genesee river into the Holly system mains a large quantity of sewage from villages and public institutions is discharged into the Genesee river and at times *519water from the Erie canal overflows into the river. The evidence disclosed that a number of drains from buildings in the city also discharged into the river. The water used for the purpose of operating the lift bridges is shut off in the fall of the year at the close of navigation on the Erie canal and turned on when navigation is resumed, usually about May. In the year 1910 the gates of the two systems located near the Brown street bridge were opened by direction of the superintendent of water works of the city. In June, 1910, numerous complaints were received by the superintendent from inhabitants, consumers of the Hemlock water, residing or employed in the vicinity of Brown street bridge, in substance that the water was roily, dirty and had an offensive odor. No attention was given the matter of complaints until one resident called upon the health commissioner of the city and the latter accompanied the complainant to her home, observed the condition of the water, took a sample of the water from the faucet and observed that it looked and smelled badly. He thereupon had it analyzed by a chemist which analysis disclosed a serious condition of contamination. The health officer thereupon notified the public through the newspapers not to drink the water without boiling it, continued bis investigation, collected water from a number of houses and caused an analysis to be made of same which disclosed contamination and he thereupon notified the water department that the Hemlock water was contaminated. The latter department started an investigation on October 2d, upwards of three months after many complaints had been made to it, and upon arrival at the Brown street bridge discovered the source of contamination to be at that point and that water from the Holly system was being discharged through the Hemlock system pipes. The water was thereupon shut off and a few days later the discovery was made that there was no check valve in the pipe of the Hemlock system and the water of the *520two systems commingled and were being furnished to consumers in that locality as potable waters.

The plaintiff, a resident of the city of Rochester and a machinist, was employed by a firm whose place of business was at the corner of Allen and Platt streets, about one block from the Brown street bridge. The factory was supplied with Hemlock lake water for drinking purposes. Plaintiff drank the water from time to time, using his individual drinking glass. He was taken ill September 6, 1910, with typhoid fever and was sick in bed for six weeks and unable to work for some twelve weeks. Asserting that his illness was caused by reason of drinking contaminated water supplied by the city, he seeks to recover damages by reason thereof. The evidence disclosed upon the trial clearly established that the water furnished by the defendant for potable purposes in the locality of the Brown street bridge was contaminated. The negligence of the defendant charged is — that it carelessly and negligently permitted poisonous and polluted water from the Genesee river to flow through the Holly system mains and pipes into the mains and .pipes of the Hemlock system thereby polluting and contaminating the Hemlock water rendering the same dangerous to life and health of the inhabitants of the city in violation of its duty to furnish pure and wholesome water; a failure to inspect the pipes from time to time to discover whether or not the check valve was in place and operating and failure to exercise diligence in a discovery of the nature and source of the contamination following many complaints as to the condition of the water. The facts adduced upon the trial were ample to permit a consideration of the question of negligence of the city by a jury and if found by a jury to sustain such finding. It is argued by counsel for the city that plaintiff’s case as to how he contracted typhoid fever rests wholly upon conjecture. Upon the appeal to the Appellate Division after the first trial the latter *521court reversed the judgment recovered by plaintiff upon that ground. (163 App. Div. 245.) Upon the appeal to the Appellate Division in the case under review two of the justices, who concurred for reversal on the first appeal on the ground stated, dissented from the decision affirming the nonsuit at Trial Term, presumptively indicating that the evidence upon the second trial had been supplemented by additional testimony and rendered the earlier decision distinguishable from the present record.

The important question in this case is — did the plaintiff produce evidence from which inference might reasonably be drawn that the cause of his illness was due to the use of contaminated water furnished by defendant. Counsel for respondent argues that even assuming that the city may be held liable to plaintiff for damages caused by its negligence in furnishing contaminated water for drinking purposes, (a) that the evidence adduced by plaintiff fails to disclose that he contracted typhoid fever by drinking contaminated water; (b) that it was incumbent upon the plaintiff to establish that his illness was not due to any other cause to which typhoid fever may be attributed for which defendant is not hable.. The evidence does disclose several causes of typhoid fever which is a germ disease, the germ being known as the typhoid bacillus, which causes may be classified as follows:

First. Drinking of polluted water. Second. Raw fruits and vegetables in certain named localities where human excrement is used to fertilize the soil are sometimes sources of typhoid infection. Third. The consumption of shell fish, though not a frequent cause. Fourth. The consumption of infected milk and vegetables. Fifth. The house fly in certain localities. Sixth. Personal contact with an infected person by one who has a predilection for typhoid infection and is not objectively sick with the disease. Seventh. Ice if affected with typhoid bacilli. Eighth. Fruits, vegetables, etc., washed in infected water.

*522 Ninth. The medical authorities recognize that there are still other causes and means unknown. This fact was developed on cross-examination of physicians called by plaintiff.

Treating the suggestions of counsel in their order, (a) that the evidence fails to disclose that plaintiff contracted typhoid fever by drinking contaminated water. The plaintiff having been nonsuited at the close of his case is entitled to the most favorable inference deducible from the evidence. That plaintiff on or about September 6th, 1910, was taken ill and very soon thereafter typhoid fever developed is not disputed. That he was employed in a factory located one block distant from the Brown street bridge in which Hemlock lake water was the only supply of water for potable and other purposes, and that the water drawn from faucets in that neighborhood disclosed that the water was roily and of unusual appearance is not questioned. And no doubt prevails that the Holly system water was confined to the main business part of the city for use for fire purposes and -sprinkling streets and is not furnished for domestic or drinking purposes.

The evidence of the superintendent of water works of the city is to the effect that Hemlock lake water is a pure wholesome water free from contamination of any sort at the lake and examinations of the same are made weekly; that the Holly water is not fit for drinking purposes taken as it is from the Genesee river. Further evidence was offered by plaintiff by several witnesses, residents in the locality of Brown street bridge, who discovered the condition of the water at various times during July, August and September and made complaint to the water department of the condition of the same. Dr. Goler, a physician and health officer of the city, was called by plaintiff and testified that in September when complaint was made to him by a resident of the district he went to the locality, visited houses in the *523immediate neighborhood, found that the water drawn from the faucet of the Hemlock supply looked badly and smelled badly. He took a sample of the water to the laboratory and had it examined by a chemist who found that it contained an increase in 'solids and very many times, that is twenty to thirty times as much chlorine or common salt as is found in the domestic water supply —- the presence of chlorine in excessive quantities indicates contamination in that quantity, bad contamination and usually sewage contamination. Further examination followed in the district. Water was collected from various houses and a large number of samples, perhaps less than, one hundred, but over twenty-five. The examination continued and the wedge of the city outlined by the river and city line and Magne street had the domestic water supply contaminated in the same way. An examination of the water of the Holly system disclosed the same, very similar in quantity of chlorine or common salt contents as the domestic water supply in the houses in the immediate neighborhood of Oak and Frank streets, but further north from what was eventually the point of greatest contamination the amount of chlorine grew less. About the following day, the source of contamination having- been discovered, the doctor made an investigation as to the reported cases of typhoid fever in the city in the months of August, September and October for the purpose of determining the number of cases, where the cases came from, what gave rise to it, and he stated that in his opinion the outbreak of typhoid was due to polluted water, contaminated as he discovered afterwards by sewage. In answer to a hypothetical question embracing generally the facts asserted by plaintiff the witness testified that he had an opinion as to the cause of the, infection of plaintiff and such opinion was that it was due to contaminated water.

Doctor Dodge, of the faculty of the University of *524Rochester, a professor of biology, also bacteriologist of the city of Rochester, about October first made an analysis of samples of water taken from No. 58 Warehouse street and from the Holley system, corner of Oak and Platt streets. The analysis of the water from Warehouse street disclosed the number of bacteria to be 880 cubic centimeter. The analysis of the Holly water disclosed four thousand bacteria cubic centimeter. An analysis of the Hemlock water at the University disclosed approximately 150 to 200. While his examination did not disclose any colon bacillus, it did disclose some evidence of the same. Dr. Brady, the physician who attended the plaintiff, and Dr. Culkin both testified that in their opinion the plaintiff contracted typhoid fever from drinking polluted water.

Plaintiff called a witness who resided on Brown street about two minutes’ walk from the bridge and proved by her that she drank water from the Hemlock mains in the fall of 1910 and was ill with typhoid fever. Thereupon counsel for defendant stipulated that fifty-seven witnesses which the plaintiff proposed to call will testify that they drank water from the Hemlock taps in the vicinity of the district west of the Genesee river and north of Allen street in the summer and fall of 1910 and during said summer and fall suffered from typhoid fever, that in view of the stipulation such witnesses need not be called by plaintiff and the stipulation shall have the same force and effect as though the witnesses had been called and testified to the facts.

The plaintiff resided with his wife some three miles distant from the factory where he was employed. The water consumed by him at his house outside the infected district was Hemlock water. The only water in the factory was Hemlock water and he had there an individual cup from which he drank. He was not outside of the city during the summer of 1910. Therefore, the only water he drank was in the city of Rochester.

*525A table of statistics as to typhoid fever in the city of Rochester for the years 1901-1910, inclusive, was produced by the health officer and received in evidence. That exhibit was the subject of comment in the opinion of Justice Foote upon the first appeal. The fact is evident from a perusal of his opinion that upon the first trial plaintiff did not undertake to establish the number of cases of typhoid fever in the district where the water was contaminated as compared with the total number of cases in the city in 1910, which evidence was supplied upon this trial. The statistics disclose that the number of typhoid cases in the city in 1910 was 223, an excess of 50 cases of any year of the nine years preceding. Recalling that complaints as to water commenced in the summer of 1910 and as shown by the evidence that typhoid fever does not develop until two or three weeks after the bacilli have been taken into the system, in connection with the fact that the source of contamination was not discovered until October, the statistics disclose that of the 223 cases of typhoid in the city in the year 1910, 180 cases appear during the months of August, September, October and November as against forty-three cases during the remaining eight months; thirty-five of which were prior to August and eight in the month of December, two months after the source of contamination of the water was discovered.

The evidence on the trial discloses that at least fifty-eight witnesses, residents of the district, drank the contaminated water and suffered from typhoid fever in addition to plaintiff; thus one-third of the 180 cases during the months stated were shown to exist in that district.

Counsel for respondent asserts that there was a failure of proof on the part of plaintiff in that he did not establish that he contracted disease by drinking contaminated water and in support of his argument cites a rule of law, that when there are several possible causes of injury *526for one or more of which a defendant is not responsible, plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which defendant was responsible. He submits that it was essential for plaintiff to eliminate all other of seven causes from which the disease might have been contracted. If the argument should prevail and the rule of law stated is not subject to any limitation the present case illustrates the impossibility of a recovery in any case based upon like facts. One cause of the disease is stated by counsel to be “personal contact with typhoid carriers or other persons suffering with the disease, whereby bacilli are received and accidentally transferred by the hands or some other portion of the person or clothes to the mouth.” Concededly a person is affected with typhoid some weeks before the disease develops. The plaintiff here resided three miles distant from his place of employment and traveled to and from his work upon the street car. To prove the time when he was attacked with typhoid, then find every individual who traveled on the same car with him and establish by each one of them that he or she was free from the disease even to bis or her clothing is impossible. Again the evidence disclosed that typhoid fever was caused by sources unknown to medical science. If the word of the rule stated is to prevail plaintiff would be required to eliminate sources which had not yet been determined or ascertained. I do not believe the rule stated to be as inflexible as claimed for. If two or more possible causes exist, for only one of which a defendant may be liable, and a party injured establishes facts from which it can be said with reasonable certainty that the direct cause of the injury was the one for which the defendant was liable the party has complied with the spirit of the rule.

The plaintiff was employed in the immediate locality where the water was contaminated. He drank the water daily. The consumption of contaminated water is a very *527frequent cause of typhoid fever. In the locality there were a large number of cases of typhoid fever and near to sixty individuals who drank the water and had suffered from typhoid fever in that neighborhood appeared as witnesses on behalf of plaintiff. The plaintiff gave evidence of his habits, his home surroundings and his method of living, and the medical testimony indicated that his illness was caused by drinking contaminated water. Without reiteration of the facts disclosed on the trial I do not believe that the case on the part of plaintiff was so lacking in proof as matter of law that his complaint should be dismissed. On the contrary the most favorable inferences deducible from the plaintiff were such as would justify a submission of the facts to a jury as to the reasonable inferences to be drawn therefrom, and a verdict rendered thereon for either party would rest not in conjecture but upon reasonable possibilities.

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

Cardozo, Pound and Andrews, JJ., concur; Hiscock, Ch. J., Chase and McLaughlin, JJ., dissent.

Judgment reversed, etc.

Cardozo, Ch. J.

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

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

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

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

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

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

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

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

Andrews, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The judgment appealed from should be affirmed, with costs.

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

Judgment reversed, etc.