HOLLAND, Justice.

The plaintiff-appellant, Kristyn Pipher (“Pipher”), appeals from the Superior Court’s judgment as a matter of law in favor of the defendant-appellee, Johnathan Parsell (“Parsell”). Pipher argues that the Superior Court erred when it ruled that, as a matter of law, Parsell was not negligent. We agree and hold that the issue of Parsell’s negligence should have been submitted to the jury.

Facts

On March 20, 2002, around 6 p.m., Pi-pher, Parsell and Johnene Beisel (“Beis-el”), also a defendant, 3 were traveling south on Delaware Route 1 near Lewes, Delaware, in Parsell’s pickup truck. All three were sitting on the front seat. Par-sell was driving, Pipher was sitting in the middle, and Beisel was in the passenger seat next to the door. They were all sixteen-years-old at the time.

As they were traveling at 55 mph, Beisel unexpectedly “grabbed the steering wheel causing the truck to veer off onto the shoulder of the road.” Parsell testified that Beisel’s conduct caused him both shock and surprise. Although Beisel’s conduct prompted him to be on his guard, Parsell further testified that he did not expect Beisel to grab the wheel again. Nevertheless, his recognition of how serious Beisel’s conduct was, shows he was aware that he now had someone in his car who had engaged in dangerous behavior.

Parsell testified that he did nothing in response to Beisel’s initial action. Approx *892 imately thirty seconds later, Beisel again yanked the steering wheel, causing Par-sell’s truck to leave the roadway, slide down an embankment and strike a tree. Pipher was injured as a result of the collision.

Pipher’s testimony at trial was for the most part consistent with Parsell’s testimony. Pipher recalled that the three occupants in the vehicle were talking back and forth and that the mood was light as they drove south on Route 1. She also testified that after Beisel yanked the steering wheel for the first time, Parsell was able to regain control of the truck. According to Pipher, despite the dangerous nature of the conduct, Parsell and Beisel just laughed about it like it was a joke. Pipher testified she felt that Beisel grabbed the steering wheel a second time because Parsell “laughed it off’ the first time.

At trial, Parsell acknowledged that he could have taken different steps to try to prevent Beisel from grabbing the steering wheel a second time. First, Parsell acknowledged, he could have admonished Beisel not to touch the steering wheel again. Second, he acknowledged that he could have pulled over to the side of the road and required Beisel to get into the back seat. Third, Parsell acknowledged that he could have warned Beisel that he would put her out of the vehicle.

The trial judge concluded that, as a matter of law, Parsell had no duty to do anything after Beisel yanked the wheel the first time because it would be reasonable for the driver to assume that it would not happen again. The trial judge also ruled that (1) there was no negligence in failing to discharge the dangerous passenger and (2) that failing to admonish the dangerous passenger was not negligence and could not be considered a proximate cause of Pipher’s injuries.

Standard of Review

In order to establish a negligence claim, a plaintiff must establish that “defendant owed plaintiff a duty of care; defendant breached that duty; and defendant’s breach was the proximate cause of plaintiffs injury.” 4 The defendant is entitled to judgment as a matter of law if the plaintiff fails to establish a prima facie case of negligence, or under no reasonable view of the evidence could a jury find in favor of the plaintiff. 5 Disputed issues of foreseeability and proximate cause involve factual determinations that must be submitted to a jury.

“To be held liable in negligence, a defendant must have been under a legal obligation — a duty — to protect the plaintiff from the risk of harm which caused his injuries.” 6 This Court has recognized that “whether a duty exists is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined by the court.” 7 If no duty exists, “a trial court is authorized to grant judgment as a matter of law.” 8 On appeal, questions of law are reviewed de novo.

Duty of Driver

A “driver owes a duty of care to her [or his] passengers because it is foreseeable that they may be injured if, *893 through inattention or otherwise, the driver involves the car she [or he] is operating in a collision.” 9 Almost forty-five years ago, this Court held that a minor who operates a motor vehicle on the highways of Delaware will be held to the same standard of care and “must accord his [or her] own passengers the same diligence and protection which is required of an adult motorist under similar circumstances.” 10 The following year, this Court recognized an important correlative principle: “One riding as a passenger in a motor vehicle ... has the right to assume that the driver will exercise reasonable care and caution and is under no duty to supervise the driving ... in the absence of knowledge that the driver is unfit or incompetent to drive.” 11

Pipher argues that after Beisel grabbed the steering wheel initially, Parsell was on notice that a dangerous situation could reoccur in the truck. Pipher further argues that once Parsell had notice of a possibly dangerous situation, he had a duty to exercise reasonable care to protect his passengers from that harm. Finally, Pipher concludes that Parsell was negligent when he kept driving without attempting to remove, or at least address, that risk.

In a similar case, the Supreme Court of Vermont held a driver was liable for damages resulting from the passenger seizing the driver’s arm. 12 In that case, a drunken passenger known for being a “playful fellow,” and having previously attempted to shake hands with the driver of the vehicle over the course of fifteen minutes, then seized the arm of the driver, causing the vehicle to collide with a farm wagon. The Vermont Court held that the knowledge the passenger was “a playful fellow” and had in the course of the ride “persisted in trying to shake hands” with the driver “should have forecast the peril of an accident to an operator of reasonable prudence and vigilance.” 13 In such cases, the driver is expected to make a reasonable attempt to prevent the passenger from taking such actions again.

In general, where the actions of a passenger that cause an accident are not foreseeable, there is no negligence attributable to the driver. 14 But, when actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable, the failure to prevent such conduct may be a breach of the driver’s duty to either other passengers or to the public. 15 Under the circumstances of this case, a reasonable jury could find that Parsell breached his duty to protect Pipher from Beisel by preventing Beisel from grabbing the steering wheel a second time.

Conclusion

The issue of Parsell’s alleged breach of duty to Pipher, the foreseeability of Beis-el’s repeat conduct, and the proximate cause of Pipher’s injuries were all factual *894 determinations that should have been submitted to the jury. 16 Accordingly, the judgment of the Superior Court, that was entered as a matter of law, is reversed. This matter is remanded for further proceedings in accordance with this opinion.

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.

Latter, J.

The general proposition of law is that if a defendant owes a plaintiff no duty, then refusal to act is not negligence. (Palsgraf v. L. I. R. R. Co., 248 N. Y. 339.) But there are many ways that a defendant’s duty to act may arise. Plaintiff’s intestate was taken ill in defendant’s store. We will assume that defendant owed her no duty at all — that defendant could have let her be and die. But if a defendant undertakes a task, even if under no duty to undertake it, the defendant must not omit to do what an ordinary man would do in performing the task.

*905Here the defendant undertook to render medical aid to the plaintiff’s intestate. Plaintiff says bhat defendant kept his intestate for six hours in an infirmary without any medical care. If defendant had left plaintiff’s intestate alone, beyond doubt some bystander, who would be influenced more by charity than by legalistic duty, would have summoned an ambulance. Defendant segregated this plaintiff’s intestate where such aid could not be given and then left her alone.

The plaintiff is wrong in thinking that the duty of a common carrier of passengers is the same as the duty of this defendant. The common carrier assumes its duty by its contract of carriage. This defendant assumed its duty by meddling in matters with which legalistically it had no concern. The plaintiff is right in arguing that when the duty arose, the same type of neglect is actionable in both cases. (See Middleton v. Whitridge, 213 N. Y. 499.)

The motion is denied.

OPINION

RANSOM, Justice.

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

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

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

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

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

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

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

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

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

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

Accordingly, the court adjudged that:

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

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

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

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

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

The Goviches timely filed notice of appeal from the June 12 order dismissing them from the suit. Because that order was a final order with respect to the Goviches, their appeal was perfected when the notice was filed. Nonetheless, citing Mabrey v. Mobil Oil Corp., 84 N.M. 272, 502 P.2d 297 (Ct.App.), cert. denied, 83 N.M. *230740, 497 P.2d 742 (1972), Ark-Les argues that because the second notice of appeal mentioned and attached only the order denying defendants' motion to compel, that notice fails to confer jurisdiction over the partial summary judgment order. We disagree.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IT IS SO ORDERED.

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

RIVES, Circuit Judge.

The appellants are Negroes, British subjects, natives of Jamaica, married to each other, and in their early fifties. For more than twenty years the husband has been a minister of the Church of England. The wife is a musician and teacher. Racial segregation is not practiced in the island of Jamaica.

Prior to 1956, the appellants had left that island on only one trip and that was to European countries and South American countries which did not segregate the races. They were not familiar with the racial segregation practiced in the Southern part of the United States.

In August 1956, they decided to make an extended visit to the United States, landing in Miami and going by bus first to Kansas City and then to New York. They made arrangements for the trip through the Mountain Travel Service before leaving Jamaica and bought tickets over the appellee’s bus line. When the bus arrived in Perry, Florida, they were sitting together in the forward part of the bus usually occupied by white passengers. The husband was dark or black, while the wife, though a Negress, appeared to be a white woman.

• At Perry, Florida, one Milton Poppell entered the bus and violently assaulted and beat the husband and slapped the wife. The circumstances are well described in the testimony of Poppell, quoted in the margin.1 Other evidentiary *329facts are stated in some detail in the opinion of the district court reported in 162 F.Supp. at page 203 et seq.

After reaching New York, the appellants brought suit against the appellee in a New York State Court, claiming that the appellee had breached the duties owed to them as passengers by omitting to warn them of a foreseeable danger, by failing to protect them from that danger, and by willfully, or at least negligently^ aggravating the danger. The appellee,, incorporated under the laws of Florida,, being sued by citizens and subjects of *330Great Britain, had the case removed to the United States District Court for the Eastern District of New York.2 That Court transferred the action to the United States District Court for the Northern District of Florida.3

There the case was tried to the court without a jury. After fairly finding the evidentiary facts in a manner to which the appellants take only minor exceptions, the district court entered judgment for the defendant, feeling that the law of the State of Florida required it to do so, and said in part:

“In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151, the Florida Supreme Court held that a carrier was not liable to a passenger for an unprovoked and illegal assault in cases such as this case. Without regard to the views of this Court as to what the law should be in such a case as this the decision of this Court is completely controlled by the decision of the Supreme Court of Florida in the ease cited above.

“Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.”

Bullock v. Tamiami Trail Tours, D.C. N.D.Fla.1958, 162 F.Supp. 203, 205.

We are not in agreement with the district court either as to the Florida law or as to the ultimate facts, inferences or conclusions of duty and breach of duty on the part of the appellant carrier. In so far as those ultimate facts are simply the result reached by processes of legal reasoning from, or the interpretation of the legal significance of, the evidentiary facts, they are subject to review by this Court free from the restraining influence of the “clearly erroneous” rule, Rule 52 (a), Federal Rules of Civil Procedure, 28 U.S.C.A.; Galena Oaks Corporation v. Scofield, 5 Cir., 1954, 218 F.2d 217, 219. To the extent that the inference of negligence is controlled by Rule 52(a), supra, this Court, on the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746.

In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151, the case relied upon by the district court as dispositive of the case at bar, a female passenger was assaulted by a male passenger in a Pullman berth, they being the only two occupants of the car. Holding that the plaintiff’s proof failed to support her allegations that a porter and conductor heard her calls and bells in time to have prevented the assault, the court stated:

“The liability of the carrier in such case rests, not upon the tort of the passenger, but upon the negligent omission of the carrier through its servants to prevent the tort being committed. A failure to do anything which could have been done by the servant to prevent the injury renders the carrier liable. But to do something to prevent an injury resulting from an assault by a fellow passenger implies knowledge on the part of the servant that the act is contemplated by the stranger, or by due diligence the servant could have obtained such knowledge, or had the opportunity to acquire it sufficiently long in advance of its infliction to have prevented it with the force at his command. 4 R.C.L. 1185.

“In guarding a passenger from a danger which is not usual or not incident to ordinary travel the carrier is held to the use of ordinary and reasonable care and diligence. It is the failure of the carrier through its agents to afford the required protection, after they had reasonable grounds for believing that violence or the insult was imminent, upon which the liability of the carrier rests. It is not the fact of injury to the passenger that fixes the carrier’s liability. The injury must have been of such character and inflicted under such circumstances as that it might *331have been reasonably anticipated or naturally expected to occur.” (Italics supplied.) 93 So. at pages 156-157.

In Kenan v. Houstoun, 1952, 150 Fla. 357, 7 So.2d 837, 838, where, after alighting from the Florida East Coast train, plaintiff was struck on the legs by an ejection of steam from a nearby L&N train causing her to move about rapidly and fall over baggage, the court, in quashing a judgment against the Florida East Coast Railway, stated:

“ * * * When it appears that the agency which caused the injury was other than defendant or its agents the plaintiff must prove that defendant knew or by the exercise of ordinary care could have known of it in time to remove the cause of the injury. 10 Am.Jur. 173, Chesapeake & O. Ry. Co. v. Burton, 4 Cir., 50 F.2d 730, 731.

“It is settled law that under the facts stated the Florida East Coast was bound to furnish Mrs. Houstoun reasonably safe facilities for leaving the train and to remain in the station but unless said company or its agents were in some way responsible or could have foreseen and prevented the accident, it cannot be held responsible for injury caused by the negligent act of a third person. In this case, the L. and N. Railway was the third person and we think was responsible for the accident. It was in no way attributable to the negligence of petitioner nor do we know of any criterion by which it could have been put on notice of it. It had not happened before and the character of it was of such a nature that it could not have been reasonably foreseen.” (Italics supplied.)

Therefore, in Hall v. Seaboard Air Line Ry. Co. and Kenan v. Houstoun, supra, the rule may be generally stated that a carrier is liable for injury to its passenger caused by a fellow passenger or a third party if such injury by its nature could have been “reasonably anticipated” or “naturally expected to occur” or “reasonably foreseen” in time to have prevented the injury. [84 Fla. 9, 93 So. 157.] If the injury could have been reasonably anticipated in time to have prevented its occurrence, the carrier is subjected to the highest degree of care to its passenger either to protect him from or to warn him of the danger.4

It was impossible for the driver to have protected the Bullocks from Poppell’s assault after his intent became evident, but we think that the district court was clearly erroneous in holding that Tamiami could not have reasonably anticipated or foreseen the danger to the Bullocks in time to have at least warned them of its imminence. We can visualize no stronger case than this to show a situation where two bus drivers and the bus company officials should have reasonably anticipated that mischief was hovering about and that the Bullocks were in some danger.

The first driver testified that many people in West Florida would not approve of the Bullocks’ being seated together toward the front of the bus. Driver Cunningham stated that there would have been less chance of trouble if the Bullocks had been sitting in the back. The first driver, after explaining to a complaining passenger that he could not move the Bullocks, heard another passenger say something like “they probably will move on down the line.” Both drivers had actual notice of the two Company bulletins dated January 31, 1953, and January 23, 1956, the latter plainly warning the drivers of possible racial disturbances.5 Certainly, the first driver *332and, no doubt, Cunningham knew the Bullocks were Jamaicans and British Nationals, and it is logical to infer that the drivers knew the Bullocks were not experienced with “southern tradition.” All of the appellee’s witnesses testified that this was the first instance they knew of in that part of the country where a Negro man and a seemingly white woman were seated together on a public carrier.

Furthermore, this Court will take judicial notice (as the district court should have done) of the commonly and generally known fact that the folkways prevalent in Taylor County, Florida, the county seat being Perry, would cause a reasonable man, familiar with local customs, to anticipate that violence might result if a Negro man and a seemingly white woman should ride into the county seated together toward .the front of an inter urban bus.6

The next question is whether or not Tamiami, so charged with a duty of foreseeing danger to its passengers, took proper precautions to avoid such danger by the “utmost care and diligence of very cautious persons.” 7 We think that Tamiami failed to exercise this care in several ways. It should have instructed its agency in Jamaica to. advise Negroes applying for passage’ through the southern part of the United States of the South’s tradition of segregation.. It should have instructed its driver to advise Negroes who were obviously foreigners, here known to be such, of segregation customs. The driver should have explained to the Bullocks his reasons for wanting them to move. Above all, the driver should not, either willfully or negligently, have informed the assailant of the Bullocks’ position on the bus and of their apparent color and lack of color.

The district court found, at least impliedly, that Tamiami was not guilty of any willful or aggravated misconduct justifying the imposition of punitive damages, and to that extent its finding is not clearly erroneous. Upon the present record, however, we conclude that the danger should reasonably have been foreseen by Tamiami in time to act with the utmost care to avoid injury to its passengers, particularly by warning them and by not doing foolish things to increase their danger, and that Tamiami breached the duty owed to its passengers, the appellants. The judgment is therefore reversed and the cause remanded with directions8 to enter judgment for each of the plaintiffs, appellants, and upon the evidence contained in this record, to award each of them reasonable compensatory damages, including damages for physical injury and mental suffering and humiliation.9

Reversed and remanded with directions.

Alexander, J.

Christine Lauritzen (Christine) appeals an order of the Pierce County Superior Court granting a summary judgment in favor of her husband, Bret Lauritzen (Bret). She contends that the trial court erred in concluding, as a matter of law, that Bret, the driver of a vehicle in which she was riding as a passenger when she was injured by a third party, had no legal duty to protect her from the foreseeable criminal acts of that third party. We affirm.

On January 7,1990, the Lauritzens, residents of Puyallup, arrived in Miami, Florida, for several days of vacation, after spending a week vacationing on Grand Cayman in the Cayman Islands.1 The Lauritzens had been warned by friends and relatives "to be careful” in Miami because it was "different” from Grand Cayman. They were also warned to "watch [their] back all the time, that there are certain areas to stay out of’ including areas "along the beachfront”. When they arrived at their hotel in Miami, they found a pamphlet in their room that warned visitors to take various security measures, including locking doors and identifying people before opening the door. Christine also observed that there were "three deadbolts on the door and cameras around”.

*435On the day following their arrival in Miami, Bret and Christine drove into "Miami City” in order to do some shopping. As they left a store late in the day, an employee told them "to hurry up and get to [their] car because it got quite dangerous when the police kind of get ready and leave”. The store employee also told them to "be careful[,] get to you[r] car[,] and get out of here”. Christine observed that this area of the city was "a very bad area to be after dark”.

The Lauritzens reached their car safely. As they departed the parking lot between 6:45 and 7 p.m., Bret asked the parking attendant about the best route to return to the freeway that would take them to their hotel in the "[Miami] beach area”. The attendant told Bret that "it’s real easy. . . . when you get out of here, take the left, and you’ll hit the on-ramp right there”. Bret left the parking lot and turned right, telling Christine, "I’m going my own way home. . . . I’m going to take the scenic route”.

They soon became lost, and Bret became angry. Whenever Christine tried to give directions, Bret told her to "shut [her] mouth”. At one point they drove by a police station, and Christine suggested that they stop and ask directions. Bret refused. Christine also suggested that they go back to the parking lot and follow the parking attendant’s directions. Bret again refused. Although Bret had a map on his lap as he was driving, he would not let Christine examine it. After driving for approximately 45 minutes to 1 hour, they arrived, according to Christine, in "a very ugly part of town”.

Bret finally pulled into the parking lot of a convenience store in order to examine his map with better light. The Lauritzens remained in the vehicle. Approximately 5 minutes later, Christine, while looking through the mirror on her side, saw a person "kind of crouch down, coming around the car”. She screamed, and a rock crashed through the window. The unidentified assailant then reached into the car and grabbed a shopping bag that was lying on the floor of the car. Bret "put the car in drive and took off’. As they sped away, Bret asked her if she was shot. Christine *436answered that she "didn’t know, and . . . wasn’t going to look because [she] felt real f[a]int”.

Bret eventually pulled the car into a gas station, where he called the police. It was later discovered that Christine had been injured by flying glass from the shattered window.

Christine thereafter filed a complaint in Pierce County Superior Court against Bret, generally alleging that Bret was negligent in failing to adequately protect her safety in that he placed her in the danger that ultimately resulted in her being injured. Bret denied liability and moved for summary judgment, contending that, under the circumstances, he had no legal duty to protect his wife from the criminal acts of third parties. In support of his motion, Bret submitted Christine’s complaint and excerpts from her deposition. In opposition to the motion, Christine submitted additional excerpts from her deposition. The trial court granted Bret’s motion, concluding that Bret owed Christine no legal duty under the circumstances.

Following Christine’s appeal to this court, we requested additional briefing on the question of which law should apply, Washington’s or Florida’s.

I

Bret contends that the trial court should have applied Florida law, which he claims would bar this action pursuant to Florida’s interspousal immunity doctrine. Christine asserts that the trial court properly applied Washington law to the merits of the case.

In any conflict of laws case, our first task is to determine if an actual conflict of laws exists. "An actual conflict between the law of Washington and the law of another state must be shown to exist before Washington courts will engage in a conflict of law analysis.” Burnside v. Simpson Paper Co., 123 Wn.2d 93, 103, 864 P.2d 937 (1994); International Tracers of Am. v. Estate of Hard, 89 Wn.2d 140, 144, 570 P.2d 131 (1977), appeal dismissed, 435 U.S. 1004 (1978). If the laws and interests of the concerned states are not in conflict the result is deemed a "false” conflict or no conflict at all. Burnside, at 100 n.3; see Robert A. Leflar et al., American Conflicts Law § *43792, at 270-73 (4th ed. 1986). In the absence of a conflict, the forum is free to apply its own law. Burnside, at 104.

We are persuaded that no conflict exists between Florida law and Washington law. The doctrine of interspousal immunity has been abolished in both states. See Freehe v. Freehe, 81 Wn.2d 183, 192, 500 P.2d 771 (1972); Waite v. Waite, 618 So. 2d 1360, 1361 (Fla. 1993) ("[W]e now find that there no longer is a sufficient reason warranting a continued adherence to the doctrine of interspousal immunity. . . . [B]oth public necessity and fundamental rights require judicial abrogation of the doctrine.”).2 Thus, it is unnecessary for us to engage in a conflict of laws analysis of the laws and policies of the two states and we will simply apply Washington law in determining the issues presented by this appeal.

II

Christine contends that the trial court erred in concluding, on summary judgment, that Bret, as the driver of a vehicle, owed no legal duty to Christine, as a passenger, to protect her from foreseeable criminal acts of an unknown third party. Bret asserts that such a duty has never been recognized under Washington law, and that we should decline to recognize one now.

Summary judgment is properly granted when the pleadings, affidavits, depositions and admissions on file demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); Kesinger v. Logan, 113 Wn.2d 320, 325, 779 P.2d 263 (1989). All facts and reasonable inferences must be considered in the light most favorable to the non-moving party, and summary judgment should be granted only if, given all of the evidence, reasonable persons could reach but one conclusion. Scott v. Pacific W. Mt. Resort, 119 Wn.2d 484, 502-03, 834 P.2d 6 (1992); Kesinger, at 325. The burden is on the moving party to demonstrate that there is no issue of material fact. Scott, at 503. We review a trial court’s grant of summary judgment de novo, and engage in *438the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).

In order to prove actionable negligence, a plaintiff must establish: (1) the existence of a duty owed to the complaining party; (2) a breach of that duty; (3) injury; and (4) that the claimed breach was a proximate cause of the resulting injury. Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992); Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984). A threshold question in any negligence case is whether the defendant owed a duty of care to the plaintiff. Whether a defendant owes a duty of care to a plaintiff is a question of law. Hansen, at 479; Pedroza, at 228. Absent a duty of care, a defendant is not subject to liability for negligent conduct.

Under the common law "a private person does not have a duty to protect others from the criminal acts of third parties”. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 223, 802 P.2d 1360 (1991); see E.L. Kellett, Annotation, Comment Note — Private Person’s Duty and Liability for Failure To Protect Another Against Criminal Attack by Third Person, 10 A.L.R.3d 619 § 3 (1966) (hereinafter Annot., Duty and Liability) (collecting cases). Washington has recognized an exception to this general rule in cases where "a special relationship exists between the defendant and either the third party or the foreseeable victim of the third party’s conduct”. Hutchins, at 227 (quoting Petersen v. State, 100 Wn.2d 421, 426, 671 P.2d 230 (1983)).

The "special relationship” that triggers a duty of care is described in the Restatement (Second) of Torts § 315 (1965), which provides as follows:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Petersen, 100 Wn.2d at 426 (quoting with approval Restatement (Second) of Torts § 315 (1965)).

*439Both Bret and Christine concede that there was no special relationship between the unknown assailant and Bret to warrant the imposition of a legal duty under subsection (a). Despite this concession, Christine relies in part on Petersen, at 428, where our Supreme Court held that a psychiatrist had a duty to take reasonable precautions to protect foreseeable victims from the criminal acts of the psychiatrist’s patient because of the special relationship between the psychiatrist and the patient under § 315(a). This holding has no applicability to our analysis as to whether a duty exists here under subsection (b) because, as we have noted, Christine did not allege a special relationship between Bret and the criminal actor.

Christine contends that under § 315(b) of the Restatement, a special relationship existed between Christine and Bret, not as husband and wife, but as driver and passenger, that gave rise to a legal duty on the part of Bret to afford her "a right to protection”. She asks us to recognize this special relationship under Washington law.

Those relationships between a defendant and a foreseeable victim that have been previously recognized by Washington courts as "special”, and, therefore, giving rise to a legal duty to protect the victim from foreseeable criminal acts of third parties, have been described as "protective in nature, historically involving an affirmative duty to render aid”. Hutchins, at 228; see W. Page Keeton et al., Prosser and Keeton on Torts § 56, at 383 (5th ed. 1984) (hereafter Prosser & Keeton). Examples of special relationships include: a school district toward a pupil, McLeod v. Grant Cy. Sch. Dist. 128, 42 Wn.2d 316, 319-22, 255 P.2d 360 (1953); an innkeeper to his or her guests, Miller v. Staton, 58 Wn.2d 879, 883, 365 P.2d 333 (1961) (duty of innkeeper to protect guests from criminal activity of other guests); a common carrier to its passengers, Hutchins, at 228;3 an employer to his or her employees, *440 Bartlett v. Hantover, 9 Wn. App. 614, 621, 513 P.2d 844 (1973) ("employer has a duty to make reasonable provision against foreseeable dangers of criminal misconduct to which the employment exposes the employee”), rev’d in part on other grounds, 84 Wn.2d 426, 526 P.2d 1217 (1974); a hospital to its patients; and a business establishment toward its customers. See Hutchins, at 228 (citing examples from Prosser & Keeton § 56, at 383).

In all of the above, the special relationship involved situations where one party was, in some sense, entrusted with the well being of another. The entrustment aspect is what appears to us to underlie the imposition of the additional duty to protect someone from foreseeable criminal acts of third parties. Christine asks us to recognize a new special relationship that would trigger a legal duty — namely, the relationship between an automobile driver and his or her passenger. She does not cite, nor have we been able to locate, a decision of any court that recognizes such a "special relationship”.

There are admittedly some similarities between a driver/ passenger relationship and those "special relationships” that have been recognized previously by Washington courts. The driver of an automobile, like an employer, innkeeper, or common carrier, has substantially more control over the place where the incident occurred and the activities in and around that place than does the subordinate passenger. Furthermore, the passenger has no ability to direct the vehicle, and no ability to exit the vehicle while it is in motion. The major difference, however, is that in all the situations where a special relationship has been recognized, the party that has been found to have a legal duty was in a position to provide protection from foreseeable criminal acts of third parties because he or she had control over access to the premises *441that he or she was obliged to protect. Employers and innkeepers, as we have noted above, are obliged to provide some protection to employees and guests on their premises. The same rationale applies to schools, hospitals, business establishments, and common carriers.

Drivers of passenger vehicles and passengers do not appear to be in the same situation. A driver of a car clearly is not in control of the surrounding streets and highways or the conduct of other persons using those streets or highways. It is difficult to imagine what reasonable precautions a driver could take, beyond locking doors, to control access to a vehicle while, for instance, it is stopped at a traffic light or parked in a parking lot.4

Furthermore, most of the existing special relationships involve situations where the prospective defendant (employer, innkeeper, business owner) is benefiting financially from the prospective plaintiff (employee, guest, business invitee). See Annot., Duty and Liability § 2, at 625. There is ordinarily no such financial relationship between driver and passenger. Finally, there is no historic duty on the part of a driver to render aid to a passenger. See Hutchins, at 228.

In at least one special relationship recognized in Washington, the scope of the duty to protect someone against the criminal acts of a third party has been limited somewhat. Innkeepers are responsible only for protecting their guests from the criminal acts of other guests. Miller, at 883. If a duty on the part of a driver to protect a passenger from criminal acts of a third party is eventually recognized, it should be similarly narrow.5 For instance, there may be an argument for *442a "special relationship” giving rise to a legal duty on the part of a driver to protect a passenger against foreseeable criminal acts by other passengers. That would be consistent with the aforementioned duty of an innkeeper to protect guests from the criminal acts of other guests. See Waldron v. Hammond, 71 Wn.2d 361, 363, 428 P.2d 589 (1967); Miller, at 883. Christine asks us to define a broader duty.

If we were to require a driver to protect his or her passenger from foreseeable criminal acts of third parties we would be requiring more of that person than we do of other persons in the "special relationships” that have previously been recognized in Washington. Even if we were to view the driver’s automobile as his or her "premises”, the duty would necessarily extend beyond the reach of the vehicle itself given the inherent mobility of an automobile. Given the unfortunate fact of pervasive crime and violence in many urban areas, drivers could, if we were to adopt Christine’s position, be held liable for merely driving in an urban area at night, because criminal acts are certainly foreseeable in such areas. We are not inclined to impose such a duty.

Christine further asks us to recognize a special relationship between an automobile driver and a passenger based on a balancing of public policies. She relies on Roberts v. Pinkins, 171 Mich. App. 648, 430 N.W.2d 808 (1988), a case decided by the Michigan Court of Appeals, and a law review article, Gregory A. Crouse, Comment, Negligence Liability for the Criminal Acts of Another, 15 J. Marshall L. Rev. 459 (1982). The Pinkins court established a balance of interests to determine if a special relationship exists. "[T]he court must balance the societal interests involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence, and the relationship between the parties.” Pinkins, at 652. Additional factors that contribute to the finding of a duty include the foreseeability of criminal activity, the defendant’s ability to cope with the proposed duty, the victim’s inability to protect himself or herself from criminal activity, the costs of providing protection, and whether the plaintiff bestowed some economic benefit on the *443defendant. See also Annot., Duty and Liability § 2, at 624-25. For the reasons stated previously, we are persuaded that these factors weigh against imposing a duty on a driver.

III

Christine next cites the Restatement (Second) of Torts § 302B to support her claim that Bret owed her a duty. That section provides that, even absent a special relationship, there may be some situations where a duty arises to protect a person from the criminal acts of third parties.6 However, § 302B recognizes a duty if "the defendant’s property affords a special (or peculiar) temptation or opportunity for crime” or if the defendant’s affirmative actions bring about a special "temptation or opportunity” for criminal conduct. Hutchins, at 230-32. Bret’s vehicle did not, in our judgment, present a special temptation as it sat in the parking lot of a convenience store. Comment d to § 302B explains that a defendant may "proceed upon the assumption that others will obey the law”. Hutchins, at 230. Bret did exactly that. He had no prior knowledge of specific criminal activity in the exact location where he parked the car. In Hutchins, the court found that this section of the Restatement did not apply to the owner of a building in which a person was attacked, observing that "[c]riminal conduct ... is an unfortunate fact of urban life. . . . [and] if we were to hold to the contrary, we would essentially make urban land possessors the insurers of all those passing on public sidewalks or streets.” Hutchins, at 232-33. The same logic applies to the facts of this case. No duty exists under § 302B.

IV

In light of all the authorities noted above, we conclude that there was no "special relationship” between Bret Lauritzen, as a driver of a private passenger vehicle, and Christine Lauritzen, as his passenger, which gave rise to a *444duty on the part of Bret to protect her from the foreseeable criminal acts of third parties.7

Affirmed.

Morgan, C.J., and Seinfeld, J., concur.

Review denied at 125 Wn. 2d 1006 (1994).

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.

OPINION

BAKER, Judge

Today we are called upon to clearly define the standard of care one competitor owes another in a sporting event. Although this court may have tangentially addressed the issue in the past, there has been no case since the adoption of the Comparative Fault Act where an in-depth analysis was warranted. Thus, the precise issue we must decide is whether a participant in an athletic activity may recover in tort for injury as the result of another participant's negligent conduct.

FACTS

The uncontroverted facts are that on September 7, 1997, Rebecca Mark (Rebecca) and Kyle Moser (Kyle) were co-participants in a triathlon competition in Marion County, which consisted of three events, swimming, bicycling, and running. Before the competition, each triathlon participant agreed to abide by the rules adopted by USA Triathlon. In addition, all the participants signed an entry form, which included a waiver provision and release from liability.

During the bicycling leg of the triathlon, Kyle was riding on the left side of Rebecca and cut in front of her. As a result, the two bicycles collided and Rebecca was hospitalized with serious injuries. Kyle was subsequently disqualified for violating the USA Triathlon rule against endangerment. That rule provides: "No cyclist shall endanger himself or another participant. Any cyclist who intentionally presents a danger to any participant or who, in the judgment of the Head Referee, appears to present a danger to any participants shall be disqualified." Record at 115. The triathlon referee, Ardith Spence, stated that Kyle's conduct was not considered intentional; rather, he was disqualified for violating the rule "because, by moving over, an accident occurred." R. at 111.

On June 7, 1998, Rebecca filed a two-count complaint against Kyle. In Count I, Rebecea alleged that the collision was caused by Kyle's negligence and, in the alternative, in Count II, Rebecca alleged that Kyle acted intentionally, recklessly and willfully in causing her injuries. In response, on September 29, 2000, Kyle filed a motion for summary judgment as to both counts of Rebecea's complaint. Specifically, Kyle argued that Rebecca was barred from recovering on a negligence theory and, instead, asserted that she was required to establish that he intentionally, recklessly, willfully, or wantonly caused her injuries. In addition, Kyle argued that there was no evidence indicating that he had intentionally or recklessly caused the collision between the two bicycles.

The trial court held a hearing on Kyle's motion on June 7, 2000. Thereafter, on August 3, 2000, the trial court granted summary judgment as to Count I of Rebecca's complaint and denied it as to Count II. Rebecca now appeals the trial court's judgment regarding the negligence count.

DISCUSSION AND DECISION

I. Standard of Review

The standard of review of a summary judgment is well settled. This court *414 applies the same standard as the trial court. USA Life One Ins. Co. v. Nuckolls, 682 N.E.2d 534, 537 (Ind.1997). We do not weigh the evidence designated by the parties. Instead, we liberally construe the evidence in the light most favorable to the non-moving party. Id. Summary judgment is appropriate only if the pleadings and the evidence show both the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind.1996). Where material facts conflict, or undisputed facts lead to conflicting material inferences, summary judgment is inappropriate. Id.

IIL. The Current State of the Law

A. Indiana Low

Many people might think that Rebecca's claim would be barred because she in some way incurred, or assumed, the risk of injury by participating in the sporting event. However, under present Indiana law that would not necessarily be the case if the standard of care was negligence. On January 1, 1985, Indiana adopted the Comparative Fault Act (the Act). Inp.Cope § 34-51-2-1 to -19. The Act was intended to ameliorate the harshness of the then prevailing common law doctrine of contributory negligence. Baker v. Osco Drug, Inc., 632 N.E.2d 794, 797 (Ind.Ct.App.1994). Under the common law rule, a slightly negligent plaintiff was precluded from recovery of any damages, even against a highly culpable tortfeasor. Id. In contrast, under the Act, if a plaintiff's conduct satisfies the statutory definition of "fault," he will be permitted to recover damages, but those damages will be reduced by his proportion of fault. Id. However, if the plaintiff's percentage of fault is assessed at greater than fifty percent, his recovery will still be completely barred. Id. For purposes of defining comparative fault, the term "fault" includes "any act or omission that is negligent, willful, wanton, reckless, or intentional towards the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages." I.C. § 34-6-2-45(b). This inclusion of "incurred risk" in the definition of fault abolishes incurred risk as a complete bar to recovery and establishes that the fault of each party should be apportioned. Baker, 632 N.E.2d at 797. Thus, under Indiana law, if we adopt negligence as the standard of care between co-participants in a sporting event, it would be a question of fact for the jury to decide whether the plaintiff in any way incurred the risk of harm but is, nevertheless, entitled to recover for his injury.

Our supreme court has not specifically addressed the standard of care between co-participants in athletic events. However, it has addressed the appropriate standard of care owed by an educational institution and its representatives to students for injuries sustained while playing campus sports. In this context, the court has adopted a negligence standard. See Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 554 (Ind.1987) (holding that school personnel have a duty to exercise reasonable care over students participating in a school activity under school supervision, in a case involving a collision between two student baseball players). Our supreme court adopted this standard based on its recognition that there is a well-established "duty on the part of school personnel to exercise ordinary and reasonable care for the safety of children under their authority." Beckett, 504 N.E.2d at 553; c.f. Brewster v. Rankins, 600 N.E.2d 154, 158 (Ind.Ct.App.1992) (holding that *415 while school authorities have a duty to exercise reasonable care for the safety of children under their tutelage, they have no duty to prevent a student from injuring other players while practicing his golf swing at home). According to the court, whether school personnel exercised their duty with the level of care of an ordinary prudent person under the same or similar cireumstances is generally a factual question for the determination of the jury. Beckett, 504 N.E.2d at 554.

Our supreme court has also recognized, however, that if the student athlete can be shown to have incurred the risks inherent in the sports event, this acts as a potential bar to recovery. Id.; see also Clark v. Wiegand, 617 N.E.2d 916, 919 (Ind.1993) (holding that the question of whether a student in a university judo class incurred the risk of injury from another student so as to bar recovery from the university was a question for the jury). According to the Beckett court, for the "doctrine of incurred risk" to affect the plaintiff's likelihood or percentage of recovery, it is not enough that the plaintiff merely has a general awareness of a potential for mishap in engaging in the particular sports activity. Id. Rather, the doctrine involves a subjective analysis focusing upon the plaintiffs actual knowledge and appreciation of the specific risk and voluntary acceptance of that risk. Clark, 617 N.E.2d at 919 (stating that whether the possibility of sustaining a knee ligament injury while participating in a judo class "was within the plaintiff's actual knowledge, appreciation, and voluntary acceptance, is a factual matter not easily susceptible to determination as a matter of law"). 1

In Duke's GMC v. Erskine, 447 N.E.2d 1118, 1118 (Ind.Ct.App.1983), a panel of this court addressed the situation where a sports participant sued for injuries caused by another player. Duke's GMC involved a golfer, Erskine, who sued for loss of an eye from being struck by a golf ball at a country club. Id. In addition to being decided prior to Indiana's adoption of the Comparative Fault Act, Duke's GMC is distinguishable from the case at bar because the court was not confronted with the standard of care between sports co-participants and because Erskine sued the corporation that paid the dues of its president who hit the golf ball causing the injury, rather than suing the president himself,. Id. Specifically, in Duke's GMC, this court was called upon to decide whether the trial court erred in admitting certain evidence and in the instructions it gave to the jury. In addressing whether the trial court's instruction regarding incurred risk was erroneous, this court approved the parties' assertion that a golfer could not incur the risk of another golfer's negligence as a matter of law. This court then discussed the instruction based on a negligence standard, but it never addressed the standard of care one competitor owes another in a sporting event. However, when discussing the appropriateness of the trial court's instructions regarding damages, the Duke's GMC court did examine how violations of the rules of sport affect the negligence analysis. In so doing, this court recognized that the "rules of sport are at least an indicia of the standard of care which players owe each other," and concluded that "[wlhile a viola *416 tion of those rules may not be negligence per se, it may well be evidence of negli-genee." 2 Id. at 1124.

Thus, under the current state of Indiana law, in actions for sports-related injuries against school authorities, rather than against a co-participant, liability will attach in the event that negligence is shown. We note, however, that the plaintiff's negligence claim is subject to the defense of incurred risk, which requires the defendant to establish that the plaintiff had actual knowledge of the risk that resulted in his injury. Should the defendant carry his burden of proof on this defense, the plaintiff's recovery will be reduced or eliminated depending on the degree of the plaintiff's fault.

B. Law in Other Jurisdictions

The authority from other jurisdictions is instructive with regard to the standard of care to be applied between co-participants in a sports activity. Other jurisdictions have generally taken one of two approaches to this issue, and have adopted either a negligence or recklessness standard. They have also recognized two principle defenses, contributory negligence and assumption of risk.

Arizona, Nevada, and Wisconsin judge sports injury cases between co-participants according to an "ordinary care" or negli-genee standard. See Estes v. Tripson, 188 Ariz. 93, 932 P.2d 1364, 1366 (Ariz.Ct.App.1997); Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039, 1043 (1994); Lestina v. West Bend Mut. Ins. Co., 176 Wis.2d 901, 501 N.W.2d 28, 33 (1993). The primary argument for adhering to the negligence standard is the belief that this standard is flexible enough to be applied to a wide range of situations because it only requires that a person exercise ordinary care under the cireumstances. See Auckenthaler, 877 P.2d at 1043; Lestina, 501 N.W.2d at 33. Thus, "within the factual climate of ... sporting events, the question posed is whether the defendant participated in a reasonable manner and within the rules of the game or in accordance with the ordinary seope of the activity." Auckenthaler, 877 P.2d at 1043 (citing Lestina, 501 N.W.2d at 33).

The majority of other states have adopted a "reckless or intentional conduct" or a "willful and wanton or intentional misconduct" standard. These states include California, Connecticut, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, and Texas. See Knight v. Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, 711 (1992) (applying a recklessness standard to an injury in an informal game of coed football); Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332, 339 (1997) (holding that a recklessness or intentional misconduct standard should be used in a case involving a recreational soccer game); Hoke v. Cullinan, 914 S.W.2d 385, 389 (Ky.1995) (applying a recklessness standard with respect to an injury sustained in a doubles tennis match); Picou v. Hartford Ins. Co., 558 So.2d 787, 790 (La.Ct.App.1990) (applying recklessness as the standard for injuries sustained during a softball game); Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94, 96 (1989) (adopting a "reckless disregard of safety" standard in a case involving a college hockey game); Ritchie, *417 Gamester v. City of Berkley, 461 Mich. 73, 597 N.W.2d 517, 518 (1999) (holding that co-participants owe each other a duty not to engage in reckless misconduct in a case involving a collision between two recreational skaters); Dotzler v. Tuttle, 234 Neb. 176, 449 N.W.2d 774, 779 (1990) (adopting a recklessness standard with respect to injuries sustained in a "pickup" basketball game); Crawn v. Campo, 136 N.J. 494, 643 A.2d 600, 601 (1994) (adopting a "reckless disregard for the safety of others" standard in a case involving a "pickup" softball game); Kabella v. Bouschelle, 100 N.M. 461, 672 P.2d 290, 293 (N.M.Ct.App.1983) (adopting recklessness as the standard for injuries sustained dur ing an informal game of tackle football); Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964, 968 (1986) (concluding that a "reckless or intentional" standard applied in a case involving a professional jockey injured during a horse race); Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699, 703 (1990) (applying the recklessness standard to a minor who was injured participating in a recreational game of "kick the can"); Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616 (Tex.App.1993) (applying a "reckless or intentional" standard in a case involving an injury suffered during a reere-ational golf game).

Of those states that have adopted a recklessness or intentional misconduct standard, some, including Illinois and Missouri, have explicitly limited application of this standard to contact sports. See Pfister v. Shusta, 167 Ill.2d 417, 212 Ill.Dec. 668, 657 N.E.2d 1013, 1017 (1995) (holding that participants who voluntarily engage in contact sports cannot recover for injuries resulting from the negligence of other players and, instead, must establish willful and wanton or intentional misconduct); Zurla v. Hydel, 289 Ill.App.3d 215, 224 Ill.Dec. 166, 681 N.E.2d 148, 152 (1997) (holding that negligence is the appropriate standard of care between co-participants in golf); Novak v. Virene, 224 Ill.App.3d 317, 166 Ill.Dec. 620, 586 N.E.2d 578, 579 (1991) (concluding that negligence is the appropriate standard between skiers); Gamble v. Bost, 901 S.W.2d 182, 186 (Mo.Ct.App.1995) (holding that a negligence standard is proper in bowling, a non-contact sport) trans. denied; Ross v. Clouser, 637 S.W.2d 11, 14 (Mo.1982) (adopting a recklessness standard for contact sports). 3

Courts that have departed from the negligence standard and adopted an elevated standard of care in the co-participant context, have recognized public policy justifications for doing so. Specifically, some courts have feared that use of an ordinary negligence standard could result in a flood of litigation. For example, in Jaworski, the Supreme Court of Connecticut declined to adopt a negligence standard, acknowledging that:

If simple negligence were to be adopted as the standard of care, every punter with whom contact is made, every mid *418 fielder high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted.

696 A.2d at 338. The Jaworski court went on to state that given "the number of athletic events taking place in Connecticut over the course of a year ... such potential for a surfeit of lawsuits ... should not be encouraged." Id.

Several courts have also recognized that "fear of civil lability stemming from negligent acts occurring [during] an athletic event could curtail the proper vigor with which the game should be played and discourage individual participation." Ross, 637 S.W.2d at 14. The Supreme Court of New Jersey in Crawn, noted that "[olne might well conclude that something is terribly wrong with a society in which the most commonly-accepted aspects of play-a traditional source of a community's conviviality and cohesion-spurs litigation." 643 A.2d at 600. With the foregoing in mind, the Crawn court went on to adopt "the heightened recklessness standard," recognizing this as a "commonsense distinction between excessively harmful conduct -and the more routine rough-and-tumble of sports that should occur freely on the playing field and should not be second-guessed in courtrooms." Id.

Apart from policy rationales, some courts have justified adoption of a recklessness or intentional standard of care on the grounds that a participant in a sports activity assumes the risks inherent in that activity. See, e.g., Knight, 11 Cal.Rptr.2d 2, 834 P.2d at 712; Marchetti, 559 N.E.2d at 703-04; Turcotte, 510 N.Y.S.2d 49, 502 N.E.2d at 967; Ross, 637 S.W.2d at 14. Assumption of risk can be applied in its primary or secondary sense. See Fowler V. Harper et al., The Law of Torts § 21.0 (3d ed.1996). Secondary assump tion of risk is applied according to a subjective standard. Therefore, "if the plaintiff knows, understands, and appreciates a risk and deliberately encounters it, he assumes that risk in the secondary sense." Heidi C. Doerhoff, Penalty Box or Jury Box? Deciding Where Professional Sports Tough Guys Should Go, 64 Mo. L.Rev. 739, 751 (1999). Whether the plaintiff appreciated and was willing to encounter the particular risk is a "factual determination[ ] usually reserved to the jury." Id.

Secondary assumption of risk has been subsumed by comparative fault in many jurisdictions and is no longer a defense. However, New York and California recognize primary assumption of risk as having survived enactment of their comparative negligence statutes. These two states have retained assumption of risk in the sports injury context by recasting it as a no-duty rule. Essentially, under the primary assumption of risk doctrine, a sports participant defendant owes no duty of care to a co-participant with respect to risks that are considered to be within the ordinary range of activity involved in the sport. See Knight, 11 Cal.Rptr.2d 2, 834 P.2d at 711; Turcotte, 510 N.Y.S.2d 49, 502 N.E.2d at 970. Because primary assumption of risk "is a policy-driven concept that flows from the legal relationship of the parties, not their subjective expectations," it is applied according to an objective, rather than subjective, standard. Doerhoff, supra, at 751. Thus, for purposes of determining whether the doctrine negates a defendant's duty of care, thereby barring a plaintiffs action, the plaintiff's "knowledge plays a role but [the] inherency [of the risks involved in the particular sport] is the sine qua non." Morgan v. State, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202, 208 (1997). Whether a duty of care attends the relationship between the parties "is a question of law reserved to the *419 court." Doerhoff, supra, at 751. If no such duty is found to exist, then an action for personal injury will be barred as a matter of law absent evidence of reckless or intentionally harmful conduct. Turcotte, 510 N.Y.S.2d 49, 502 N.E.2d at 967.

Courts that have adopted the recklessness or intentional standard have also tended to hold rule violations as an inherent and anticipated part of the game. Burnstein, supra, at 993. The Supreme Court of Connecticut has justified this tendency by reasoning that the "normal expectations of participants in contact team sports includes the potential for injuries resulting from conduct that violates the rules of sport." Jaworski, 696 A.2d at 337. Thus, "Connecticut, like other jurisdictions that have adopted the reckless or intentional standard of care, allows a participant in a sporting event to escape liability when his conduct is 'part of the game' even though it violates [the] rules" of the sport. Mark M. Rembish, Liability for Personal Injuries Sustained in Sporting Events After Jaworski v. Kierney, 18 Quinnipiac L.Rev. 307, 341 (1998).

In sum, the majority of jurisdictions that have considered the issue of the appropriate standard of care between co-participants in sporting activities, have adopted a standard of care that exceeds negligent conduct. The rationale behind this heightened standard of care is the fear of a flood of litigation, the desire to encourage vigorous athletic competition and participation in sporting events, and the perception that risk of injury is a common and inherent aspect of sports and recreational activity.

C. Analysis

In determining the appropriate standard of care between co-participants in sporting activities in Indiana, we are mindful that in Indiana, as in the rest of the United States, participation in recreational sports has become an increasingly popular leisure time activity. Indeed, over the last decade, more Americans than ever before "have joined recreational softball, basketball, football [and] other types of sports leagues," and there has also been a dramatic increase in participation in high school and college organized sports. Burnstein, supra, at 993. Our legislature also emphasized and endorsed the growing importance of sporting and recreational activities in Indiana, when it enacted a statute specifically immunizing landowners from lability if they have opened their property for recreational use. Nee Inp. Cope § 14-22-10-2. 4

After reviewing the decisions of other jurisdictions that have considered this issue, we are convinced that a negligence standard would be over-inclusive. Specifically, we believe that adopting a negli-genee standard would create the potential for mass litigation and may deter participation in sports because of fear of incurring liability for the injuries and mishaps incident to the particular activity. Further, we believe that the duty of care between co-participants in sports activities is sufficiently distinguishable from Indiana cases where a student athlete sues an educational institution or its representatives, to merit a heightened standard of care. Specifically, application of a negligence *420 standard is justified where a student athlete sues a school or its representatives because there is a well-established duty on the part of such institutions and their personnel to exercise ordinary and reasonable care for the safety of those under their authority. See Beckett, 504 N.E.2d at 553. However, no such analogous authority or responsibility exists between co-participants in sporting events, and therefore, we are not compelled to adopt a similar standard in this context. 5 Finally, as a matter of policy, we prefer to avoid the need to hold a jury trial to determine whether the plaintiff incurred the risk of injury in every case involving a sports injury caused by a co-participant. We can prevent this necessity by adopting an objective primary assumption-of-risk doctrine and a standard of care greater than negligence.

Accordingly, we hold that voluntary participants in sports activities assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport. 6 The plaintiff's assumption of risk is primary in nature inasmuch as it flows from the legal relationship of the parties, is evaluated according to an objective standard rather than a subjective standard, and acts to bar recovery. Thus, it is a question of law for the determination of the court, whether the injury-causing event was an inherent or reasonably foreseeable part of the game, such that the plaintiff is considered to have assumed the risk. If the court determines that the plaintiff did assume the risk, then the plaintiff's cause fails. If, on the other hand, the court determines that plaintiff did not assume the risk, then the cause proceeds to a jury to determine, as a question of fact, whether the co-participant intentionally or recklessly caused the injury.

In addition, because we recognize that rule infractions, deliberate or otherwise, are an inevitable part of many sports, a co-participant's violation of the rules of the game may be evidence of liability, but shall not per se establish reckless or intentional conduct. We share the Supreme Court of Connecticut's recognition that:

In athletic competitions, the object obviously is to win. In games, particularly those involving some degree of physical contact, it is reasonable to assume that the competitive spirit of the participants will result in some rules violations and injures. That is why there are penalty boxes, foul shots, free kicks, and yellow cards.

Jaworski, 696 A.2d at 337. Thus, while some injuries may result from rules violations, we believe such violations are nonetheless an accepted part of any competition and among the anticipated risks of participation in the game.

*421 We are affording enhanced protection against liability to co-participants in sports events, in part, because we recognize that they are not in a position, practically speaking, to protect themselves from claims. Event organizers, sponsors, and the like, are able to safeguard themselves from lability by securing waivers. They usually accomplish this by requiring each participant to sign a waiver and assumption-of-risk form as a condition of competing in the event. 7 However, in most instances, it is simply infeasible for participants to protect themselves by similar means. Indeed, at large sporting events, participants would have to exchange many releases in order to avoid lability. 8 Under the common law system of contributory fault, application of the doctrine of incurred risk would have allowed the judiciary to protect parties who, as here, cannot take steps to legally protect themselves from liability. However, when our legislature abandoned contributory negligence as a total bar to recovery and established a comparative negligence regime, it did not account for situations where parties are unable to protect themselves from lability. Thus, there is a void in the law. We recognize that one of the responsibilities of the judiciary is to fill such voids. Accordingly, we determine that, as a matter of law, participants in sporting events will not be permitted to recover against their co-participants for injuries sustained as the result of the inherent or foreseeable dangers of the sport.

*422 The foregoing standard means, in essence, that an action will He in tort between co-participants in sports events "when players step outside of their roles as fellow competitors" and recklessly or intentionally inflict harm on another. Doerhoff, supra, at 744. A player will be considered to have acted in reckless disregard of the safety of another player if "he does an act, or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Restate, ment (Second) of Torts § 500 (1965). A player acts intentionally when he desires to cause the consequences of his act, or when he believes that the consequences are substantially certain to result from it. Id. § Sa. Thus, recklessness differs from intentional wrongdoing in that while the act must be intended by the actor in order to be considered reckless, the actor does not intend the harm that results from the act.

Applying the foregoing standard, liability will not lie where the injury causing action amounts to a tactical move that is an inherent or reasonably foreseeable part of the game and is undertaken to secure a competitive edge. Thus, where a baseball pitcher throws the ball near the batter to prevent him from crowding the home plate, and the ball ends up striking the batter and causing injury, the pitcher's conduct would not be actionable. Similarly, there would be no tort liability where the defense in a football game strategically "blitzes" the opposing team's quarterback resulting in injury, or where one basketball team is leading by a point and, see-onds from the end of the game, a member of that team chooses to foul the opponent when he drives the lane for a "slam dunk," thereby forcing him to try to win the game at the free throw line.

In contrast, if a co-participant vents his anger at another player by means of a physical attack, such conduct would be actionable. Instances of such tortious conduct would be where one boxer bites his opponent's ear during a boxing match, 9 or where a soccer or football player punches another player after a tackle. Similarly, if a baseball batter in a fit of anger intentionally flips his bat towards the opposing team's dugout and injures one of the players, liability might attach for such recklessness.

In light of these examples, it is our view that adoption of the recklessness or intentional conduct standard preserves the fundamental nature of sports by encouraging, rather than inhibiting, competitive spirit, drive, and strategy. Moreover, this standard will avoid judicial review of the kind of risk-laden conduct that is inherent in sports and generally considered to be part of the game, while at the same time imposing liability for acts that are clearly unreasonable and beyond the realm of fair play. Further, we believe that adoption of this standard will not compromise Indiana's status as the "Amateur Sports Capital of the World." Tammy Lieber, 20 Years of *423 Amateur Sports, Indianapolis Bus. J., Apr. 12, 1999, at 3A. 10

D. Rebecca's Claim

We now return to Rebecca's contention that the trial court erred in granting summary judgment in favor of Kyle on Count I of her complaint, in which Rebecca alleged that Kyle acted negligently in causing her injuries. In light of our holding regarding the appropriate standard of care between co-participants in a sporting event, allegation or proof of negligent conduct is insufficient to create lability. Thus, Count I of Rebecca's complaint must fail.

With regard to Count II, alleging that Kyle acted intentionally, recklessly and willfully in causing her injuries, the trial court must determine whether Kyle's action was an inherent or reasonably foreseeable part of the sport, such that Rebecca assumed the risk of injury as a matter of law. In our view, it is reasonably foreseeable that a competitor in a cycling race may attempt to eut in front of co-participants in an effort to advance position. Thus, if Rebecea is unable to develop the facts beyond those presented at this june-ture, we would conclude that Kyle's action was an inherent risk in the event that Rebecca assumed as a matter of law, thereby precluding recovery.

CONCLUSION

We thus conclude that the trial court properly granted summary judgment in favor of Kyle as to Count I of Rebecca's complaint. Accordingly, we affirm the trial court's decision with respect to Count I. We also remand to the trial court for further proceedings on Count II consistent with this opinion, to determine whether, under the facts of this case as they develop, Rebecea assumed the risk of injury as a matter of law.

DOYLE, Justice.

This is an appeal from judgments entered in favor of the plaintiffs on the consolidated trial of six damage claims arising out of a two-car collision.

On July 4, 1970, the defendants, Bunch and White, who were friends and next-door neighbors, met in a bar in Lead, South Dakota. While there they decided to meet later in Belle Fourche to go fishing at a stock pond nearby. Bunch left and drove to Belle Fourche. White followed shortly thereafter. The two met again at a Belle Fourche cafe at approximately 1:00 p.m. Bunch then drove them to the fishing pond. Bunch fished for only a short while. He was “hung over” from his previous night’s activities and the heat of the day complicated his *24condition. On the trip out and throughout the afternoon, the two imbibed from a gallon thermos jug containing ice, lemonade and a fifth of vodka prepared by White. They left the pond late in the afternoon and upon Bunch’s request, White drove back to Belle Fourche while Bunch slept. Arriving at Belle Fourche, White unloaded his gear from Bunch’s vehicle into his own. He awakened Bunch with some difficulty. When questioned by White in regard to his condition, Bunch replied to the effect that although he did not feel all right, he did not wish to leave his vehicle in Belle Fourche. White then stated to Bunch, “follow me” or “just stay behind me”. White and Bunch then left Belle Fourche, each in his own vehicle, with White in front. At St. Onge, White stopped to check on his friend who, according to White, seemed all right and they continued on. Prior to the collision, the two vehicles came up behind another vehicle. The driver of this vehicle and his wife both testified that the Bunch vehicle would occasionally swerve from the shoulder of the road back out into the opposite lane of travel. This observation caused so much concern that the driver turned off the highway and permitted both vehicles to proceed ahead of him. The collision occurred shortly thereafter. The record indicates that Bunch drove his vehicle across the center line into the path of the plaintiff’s vehicle. The collision occurred in such a manner that the plaintiffs had no opportunity to take any action to avoid it.

In suits brought against both Bunch and White, Bunch virtually conceded liability and the jury returned a judgment against him from which he does not appeal. In the suits against White, the jury also returned a judgment in favor of the plaintiffs and White appeals.

The plaintiffs for their cause of action against White alleged that he:

“* * * did negligently and carelessly operate a motor vehicle for the purpose of leading or guiding a motor vehicle operated by defendant Brian D. Bunch on said public highway, when defendant Marlin G. White knew, or reasonably should have known, that defendant Brian D. Bunch was under the influence of intoxicating liquor and unable to operate the motor vehicle in a reasonably careful and prudent manner.”

*25In order for there to be actionable negligence there must be a duty on the part of the defendant to protect the plaintiff from injury, a failure to perform that duty, and an injury to the plaintiff resulting from such failure. Ecklund v. Barrick, 1966, 82 S.D. 280, 144 N.W.2d 605; Stoner v. Eggers, 1958, 77 S.D. 395, 92 N.W.2d 528; Daniels v. Moser, 1955, 76 S.D. 47, 71 N.W.2d 739.

It is the appellant’s contention that he owed no duty to the respondents. According to Restatement, Second, Torts § 315:

“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.”

The special relations referred to in clause (a) are found in §§ 316-319, none of which is applicable herein. Sections 314a and 320 state the relations relevant to clause (b) which we also find equally inapplicable.

The language in Comment b. of § 315 is appropriate:

“In the absence of either one of the kinds of special relations described in this Section, the. actor is not subject to liability if he fails, either intentionally or through inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm. This is true although the actor realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself. Thus if the actor is riding in a third person’s car merely as a guest, he is not subject to liability to another run over by the car even though he knows of the other’s *26danger and knows that the driver is not aware of it, and knows that by a mere word, recalling the driver’s attention to the road, he would give the driver an opportunity to stop the car before the other is run over.”

The facts do not, in our opinion, indicate that White did exercise or ever was capable of exercising any control over Bunch at any time relevant to this case. Nor do the facts show that White undertook to assist Bunch which, therefore, makes § 324A of Restatement, Second, Torts, inapplicable.

The respondents’ argument that Steckman v. Silver Moon, Inc., 1958, 77 S.D. 206, 90 N.W.2d 170, is apropos is untenable. In Steckman v. Silver Moon, supra, this court held that the law imposes upon one who undertakes to render assistance the duty of reasonable care toward the one assisted. This rule does not contemplate any duty toward third persons nor do we choose to extend it to do so.

The respondents also argue that what is commonly referred to as the “signal-to-pass” cases, e. g., Thelen v. Spilman, 1957, 251 Minn. 89, 86 N.W.2d 700, are supportive of the judgment in their favor. We find those cases factually inapposite to the one before us.

As a general rule the existence of a duty, i. e., whether a relation exists between the parties such that the law will impose upon the defendant a legal obligation or reasonable conduct for the benefit of the plaintiff, is to be determined by the court. Proesser on Torts, § 36, 3rd Ed., pp. 206, 207; 57 Am.Jur.2d, Negligence, § 34.

In our view, the evidence taken in the light most favorable to the respondents is not supportive of their alleged action against White in that it fails to disclose the existence of any duty owed to the respondents on behalf of White. Therefore, the trial court erred in not directing a verdict for White.

Reversed.

WOLLMAN and DUNN, JJ., concur.

BIEGELMEIER, C. J., concurs in result.

WINANS, J., dissents.

Opinion

MOSK, J.

A rock radio station with an extensive teenage audience conducted a contest which rewarded the first contestant to locate a peripatetic disc jockey. Two minors driving in separate automobiles attempted to follow the disc jockey’s automobile to its next stop. In the course of their pursuit, one of the minors negligently forced a car off the highway, killing its sole occupant. In a suit filed by the surviving wife and children of the decedent, the jury rendered a verdict against the radio station. We now must determine whether the station owed decedent a duty of due care.

The facts are not disputed. Radio station KHJ is a successful Los Angeles broadcaster with a large teenage following. At the time of the accident, KHJ commanded a 48 percent plurality of the teenage audience in the Los Angeles area. In contrast, its nearest rival during the same period was able to capture only 13 percent of the teenage listeners. In order to attract an even larger portion of the available audience and thus increase advertising revenue, KHJ inaugurated in July of 1970 a *44 promotion entitled “The Super Summer Spectacular.” The “spectacular,” with a budget of approximately $40,000 for the month, was specifically designed to make the radio station “more exciting.” Among the programs included in the “spectacular” was a contest broadcast on July 16, 1970, the date of the accident.

On that day, Donald Steele Revert, known professionally as “The Real Don Steele,” a KHJ disc jockey and television personality, traveled in a conspicuous red automobile to a number of locations in the Los Angeles metropolitan area. Periodically, he apprised KHJ of his whereabouts and his intended destination, and the station broadcast the information to its listeners. The first person to physically locate Steele and fulfill a specified condition received a cash prize. 1 In addition, the winning contestant participated in a brief interview on the air with “The Real Don Steele.” The following excerpts from the July 16 broadcast illustrate the tenor of the contest announcements:

“9:30 and The Real Don Steele is back on his feet again with some money and he is headed for the Valley. Thought I would give you a warning so that you can get your kids out of the street.”

“The Real Don Steele is out driving on—could be in your neighborhood at any time and he’s got bread to spread, so be on the lookout for him.”

“The Real Don Steele is moving into Canoga Park—so be on the lookout for him. I’ll tell you what will happen if you get to The Real Don Steele. He’s got twenty-five dollars to give away if you can get it. . . and baby, all signed and sealed and delivered and wrapped up.”

“10:54—The Real Don Steele is in the Valley near the intersection of Topanga and Roscoe Boulevard, right by the Loew’s Holiday Theater— you know where that is at, and he’s standing there with a little money he would like to give away to the first person to arrive and tell him what type car I helped Robert W. Morgan give away yesterday morning at KHJ. What was the make of the car. If you know that, split. Intersection of Topanga and Roscoe Boulevard—right nearby the Loew’s Holiday Theater—you will find The Real Don Steele. Tell him and pick up the bread.”

*45 In Van Nuys, 17-year-old Robert Sentner was listening to KHJ in his car while searching for “The Real Don Steele.” Upon hearing that “The Real Don Steele” was proceeding to Canoga Park, he immediately drove to that vicinity. Meanwhile, in Northridge, 19-year-old Marsha Baime heard and responded to the same information. Both of them arrived at the Holiday Theater in Canoga Park to find that someone had already claimed the prize. Without knowledge of the other, each decided to follow the Steele vehicle to its next stop and thus be the first to arrive when the next contest question or condition was announced.

For the next few miles the Sentner and Baime cars jockeyed for position closest td the Steele vehicle, reaching speeds up to 80 miles an hour. 2 About a mile and a half from the Westlake offramp the two teenagers heard the following broadcast: “11:13—The Real Don Steele with bread is heading for Thousand Oaks to give it away. Keep listening to KHJ .... The Real Don Steele out on the highway—with bread to give away—be on the lookout, he may stop in Thousand Oaks and may stop along the way .... Looks like it may be a good stop Steele—drop some bread to those folks.”

The Steele vehicle left the freeway at the Westlake offramp. Either Baime or Sentner, in attempting to follow, forced decedent’s car onto the center divider, where it overturned. Baime stopped to report the accident. Sentner, after pausing momentarily to relate the tragedy to a passing peace officer, continued to pursue Steele, successfully located him and collected a cash prize.

Decedent’s wife and children brought an action for wrongful death against Sentner, Baime, RKO General, Inc. as owner of KHJ, and the maker of decedent’s car. Sentner settled prior to the commencement of trial for the limits of his insurance policy. The jury returned a verdict against Baime and KHJ in the amount of $300,000 and found in favor of the manufacturer of decedent’s car. KHJ appeals from the ensuing judgment and from an order denying its motion for judgment notwithstanding the verdict. Baime did not appeal. 3

The primary question for our determination is whether defendant owed a duty to decedent arising out of its broadcast of the giveaway *46 contest. The determination of duty is primarily a question of law. (Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 307 [29 Cal.Rptr. 33, 379 P.2d 513] (overruled on other grounds in Dillon v. Legg (1968) 68 Cal.2d 728, 748 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]).) It is the court’s “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 (4th ed. 1971) pp. 325-326.) Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, .our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the lo.ss should fall. (Prosser, Palsgraf Revisited (1953) 52 Mich.L.Rev. 1, 15.) While the question whether, one owes a duty to another must be decided on a case-by-case basis, 4 every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct. (Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 36 [286 P.2d 21].) However, foreseeability of the risk is a primary consideration in establishing the element of duty. (Dillon v. Legg, supra, 68 Cal.2d 728, 739.) Defendant asserts that the record here does not support a conclusion that a risk of harm to decedent was foreseeable.

While duty is a question of law, foreseeability is a question of fact for the jury. (Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277 [40 Cal.Rptr. 812].) The verdict in plaintiffs’ favor here necessarily embraced a finding that decedent was exposed to a foreseeable risk of harm. It is' elementary that our review of this finding is limited to the determination whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.

We conclude that the record amply supports the finding of foreseeability. These tragic events unfolded in the middle of a Los Angeles summer, a time when young people were free from the constraints of school and responsive to relief from vacation tedium. *47 Seeking to attract new listeners, KHJ devised an “exciting” promotion. Money and a small measure of momentary notoriety awaited the swiftest response. It was foreseeable that defendant’s youthful listeners, finding the prize had eluded them at one location, would race to arrive first at the next site and in their haste would disregard the demands of highway safety.

Indeed, “The Real Don Steele” testified that he had in the past noticed vehicles following him from location to location. He was further aware that the same contestants sometimes appeared at consecutive stops. This knowledge is not rendered irrelevant, as defendant suggests, by the absence of any prior injury. Such an argument confuses foreseeability with hindsight, and amounts to a contention that the injuries of the first victim are not compensable. “The mére fact that a particular kind of an accident has not happened before does not... show that such accident is one which might not reasonably have been anticipated.” (Ridley v. Grifall Trucking Co. (1955) 136 Cal.App.2d 682, 686 [289 P.2d 31].) Thus, the fortuitous absence of prior injuiy does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.

It is of no consequence that the harm to decedent was inflicted by third parties acting negligently. Defendant invokes the maxim that an actor is entitled, to assume that others will not act negligently. (Porter v. California Jockey Club, Inc. (1955) 134 Cal.App.2d 158, 160 [285 P.2d 60].) This concept is valid, however, only to the extent the intervening conduct was not to be anticipated. (Premo v. Grigg (1965) 237 Cal.App.2d 192, 195 [46 Cal.Rptr. 683].) If the likelihood that a third person may react in a particular manner is a hazard which makes the actor negligent, such reaction whether innocent or negligent does not prevent the actor from being liable for the harm caused thereby. (Richardson v. Ham (1955) 44 Cal.2d 772, 777 [285 P.2d 269].) Here, reckless conduct by youthful contestants, stimulated by defendant’s broadcast, constituted the hazard to which decedent was exposed.

It is true, of course, that virtually every act involves some conceivable danger. Liability is imposed only if the risk of harm resulting from the act is deemed unreasonable—i.e., if the gravity and likelihood of the danger outweigh the utility of the conduct involved. (See Prosser, Law of Torts (4th ed. 1971) pp. 146-149.)

*48 We need, not belabor the grave danger inherent in the contest broadcast by defendant. The risk of a high speed automobile chase is the risk of death or serious injury. Obviously, neither the entertainment afforded by the contest nor its commercial rewards can justify the creation of such a grave risk. Defendant could have accomplished its objectives of entertaining its listeners and increasing advertising revenues by adopting a contest format which would have avoided danger to the motoring public.

Defendant’s contention that the giveaway contest must be afforded the deference due society’s interest in the First Amendment is clearly without merit. The issue here is civil accountability for the foreseeable results of a broadcast which created an undue risk of harm to decedent. The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act.

We are not persuaded that the imposition of a duty here will lead to unwarranted extensions of liability. Defendant is fearful that entrepreneurs will henceforth be burdened with an avalanche of obligations: an athletic department will owe a duty to an ardent sports fan injured while hastening to purchase one of a limited number of tickets; a department store will be liable for injuries incurred in response to a “while-they-last” sale. This argument, however, suffers from a myopic view of the facts presented here. The giveaway contest was no commonplace invitation to an attraction available on a limited basis. It was a competitive scramble in which the thrill of the chase to be the one and only victor was intensified by the live broadcasts which accompanied the pursuit. In the assertedly analogous situations described by defendant, any haste involved in the purchase of the commodity is an incidental and unavoidable result of the scarcity of the commodity itself. In such situations there is no attempt, as here, to generate a competitive pursuit on public streets, accelerated by repeated importuning by radio to be the very first to arrive at a particular destination. Manifestly the “spectacular” bears little resemblance to daily commercial activities.

Defendant, relying upon the rule stated in section 315 of the Restatement Second of Torts, urges that it owed no duty of care to decedent. The section provides that, absent a special relationship, an actor is under no duty to control the conduct of third parties. As explained hereinafter, this rule has no application if the plaintiff’s complaint, as here, is grounded upon an affirmative act of defendant which created an undue risk of harm. *49 The rule stated in section 315 is merely a refinement of the general principle embodied in section 314 5 that one is not obligated to act as a “good Samaritan.” (Rest.2d Torts, § 314, com. (a); James, Scope of Duty in Negligence Cases (1953) 47 Nw.U.L.Rev. 778, 803.) This doctrine is rooted in the common law distinction between action and inaction, or misfeasance and nonfeasance. Misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. As section 315 illustrates, liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care discussed above.

Here, there can be little doubt that we review an act of misfeasance to which section 315 is inapplicable. Liability is not predicated upon defendant’s failure to intervene for the benefit of decedent but rather upon its creation of an unreasonable risk of harm to him. (See Shafer v. Keeley Ice Cream Co. (1925) 65 Utah 46 [234 P. 300, 38 A.L.R. 1523].) 6 Defendant’s reliance upon cases which involve the failure to prevent harm to another is therefore misplaced, e.g., Wright v. Arcade School Dist., supra, 230 Cal.App.2d 272 (school district held free of a duty of care to children injured on their way to and from school).

Finally, we address the propriety of an allegedly erroneous and prejudicial instruction. The challenged instruction, though approved by the trial judge after submission by plaintiffs, was inadvertently omitted from the charge to the jury. Although plaintiffs immediately called the oversight to the judge’s attention, the absence of a court reporter *50 prevented verification of the omission until the morning of the jury’s third day of deliberations. Thereupon, the judge recalled the jury, explained his inadvertent error, and read the instruction, which stated: “One who undertakes to direct the action of another has a duty to do so with due care.”

Defendant contends that the instruction was argumentative in that it focused exclusively on KHJ and no other defendant. We need not examine the merit of this assertion for defendant itself requested and received .an instruction to substantially the same effect. That instruction began, “Every person who engages in a business activity which directs or influences the conduct of others and who, while so engaged exercises ordinary care . . . ,” 7 It is well settled that a party cannot attack the substance of an instruction if he himself proposed similar instructions. (Smith v. Americania Motor Lodge (1974) 39 Cal.App.3d 1, 7 [113 Cal.Rptr. 771].) For the same reason, we reject defendant’s contentions that there was no support in the record for the challenged instruction and that it was ambiguous.

Additionally, defendant claims .that independent prejudice arose from the tardy and isolated manndr in which the instruction was given. The jury, it is asserted, attached undue importance to the instruction because it was given by itself on the third day of deliberations. We do not agree.

The trial court possesses the inherent right on its own motion to recall the jurors for further instructions. (People v. Wester (1965) 237 Cal.App.2d 232, 238 [46 Cal.Rptr. 699]; People v. Hewitt (1936) 11 Cal.App.2d 197, 199 [53 P.2d 365].) In Davis v. Erickson (1960) 53 Cal.2d 860 [3 Cal.Rptr. 567, 350 P.2d 535], we stated if a court recalls the jury for the purpose of reading unintentionally omitted instructions the danger that the instruction will be overemphasized may be avoided if the court admonishes the jury not to attach any particular emphasis to the fact that it is reading certain instructions which had been inadvertently omitted in its first reading or by rereading all the instructions, Here the prefatory remarks of the trial judge minimized any *51 tendency of the jury to be unduly impressed by the circumstances under which the instruction was given.

Moreover, defendant failed to request either additional cautionary instructions or a rereading of all related instructions. Under similar circumstances, it was held in Stoddard v. Rheem (1961) 192 Cal.App.2d 49 [13 Cal.Rptr. 496] that the defendant should not be permitted to stand silently by, giving the appearance of acquiescence in the manner in which an instruction was given and be later heard to complain, too late for curative measures to be taken.

The judgment and the orders appealed from are affirmed. Plaintiffs shall recover their costs on appeal. The parties shall bear their own costs on the cross-appeal.

Wright, C. J., McComb, J., Tobriner, J., Sullivan, J., Clark, J., and Richardson, J., concurred.

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, *391 passed! 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 *392 ation 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 *393 a 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.

PALMER, J.

The principal issue in this appeal is whether a physician who mistakenly informs a patient that he does not have a sexually transmitted disease (STD) may be held liable in ordinary negligence to the patient's exclusive sexual partner for her resulting injuries when the physician knows that the patient sought testing and treatment for the express benefit of that partner. Under the circumstances alleged, we conclude that the defendant, Charles Cochran, a physician, owed a duty of care to the plaintiff, identified by the pseudonym Jane Doe, even though she was not his patient. Accordingly, we conclude that the trial court improperly granted the defendant's motion to strike the plaintiff's one count complaint and reverse the judgment of the trial court.

The following facts, as set forth in the plaintiff's complaint and construed in the manner most favorable to sustaining its legal sufficiency; see, e.g., Lestorti v. DeLeo , 298 Conn. 466 , 472, 4 A.3d 269 (2010) ; and procedural history are relevant to our disposition of this appeal. In early 2013, the plaintiff began dating her boyfriend, identified in this action by the pseudonym John Smith. At all relevant times, the plaintiff and Smith were involved in an exclusive romantic relationship. At some point, the couple agreed that, before their relationship became sexual, they would individually seek testing for STDs. As of July, 2013, the plaintiff had tested negative for and did not have any STDs.

At that time, pursuant to his agreement with the plaintiff, Smith visited his physician, the defendant, who is a licensed medical doctor practicing in Norwalk. During Smith's visit, the defendant asked Smith why he wanted to be tested again for STDs, as the defendant had tested him just five months earlier. Smith explained that he wanted to be tested again for the protection and benefit of his new, exclusive girlfriend, the plaintiff. The defendant then took a sample of Smith's blood, arranged for it to be tested for STDs, and subsequently reviewed the laboratory (lab) test results.

The lab report that the defendant reviewed included a guide for reading the test's results. The guide indicated that an HSV 2 IgG (herpes simplex virus type 2 specific antibody) result of less than 0.9 is negative for the herpes simplex virus type 2 (herpes), a result between 0.9 and 1.1 is equivocal, and a result greater than 1.1 means that the sample tested positive for herpes. Smith's HSV 2 IgG test result was 4.43, significantly above the threshold for a positive herpes diagnosis.

The defendant delegated to a member of his staff the task of informing Smith of the results of his test. Even though the lab report clearly demonstrated a positive herpes diagnosis, the staff member incorrectly told Smith over the phone that his STD test results had come back negative.

The plaintiff's relationship with Smith subsequently became sexual. Thereafter, the plaintiff began to experience herpes outbreaks and was diagnosed with herpes. Upon learning of this, Smith contacted the defendant to inquire further about his test results. The defendant then informed Smith that he actually had tested positive for herpes and apologized for the error.

The plaintiff brought a one count action against the defendant, alleging that the defendant had been negligent in various respects. The defendant moved to strike the complaint on the basis that the plaintiff's claim sounded in medical malpractice and, therefore, must fail for lack of any physician-patient relationship between the plaintiff and the defendant. The defendant argued in the alternative that, even if the court construed the plaintiff's claim as sounding in ordinary negligence, the plaintiff and the defendant were not involved in any special relationship that would justify extending a duty of care to her.

The trial court granted the defendant's motion to strike. The court did not expressly resolve the issue of whether the plaintiff's claim sounds in ordinary negligence or medical malpractice, at once describing the plaintiff as "seeking to extend medical malpractice liability of a physician to the sexual partner of a patient" and referring to the defendant's "claimed negligence ... in reporting the test results." The analysis undertaken by the trial court, however, implies that it viewed the claim as sounding in ordinary negligence. Specifically, the court concluded that the claim was governed by our decision in Jarmie v. Troncale , 306 Conn. 578 , 50 A.3d 802 (2012), and applied the framework that we set out in that case for determining whether a nonpatient may assert an ordinary negligence claim against a health care provider. See id., at 591-99, 50 A.3d 802 . Ultimately, the trial court concluded the defendant did not owe a duty of care to the plaintiff and, for that reason, granted the defendant's motion to strike. This appeal followed. 1

I

As an initial matter, we must resolve a dispute between the parties as to the gravamen of the plaintiff's complaint. As an alternative ground for affirmance, the defendant contends on appeal, as he did before the trial court, that the plaintiff's one count complaint sounds in medical malpractice. In support of this conclusion, the defendant points to, among other things, the facts that (1) the plaintiff alleged that "[the defendant] had an obligation to perform the STD tests and [to] report the results accurately to ... Smith according to accepted medical practice and standards," (2) the plaintiff further alleged that the defendant's "breach of accepted medical practice and standards" by failing to properly treat, test, monitor, and advise Smith, was the cause of her injuries, and (3) the plaintiff's counsel attached to the complaint a certificate, pursuant to General Statutes § 52-190a (a), averring that there were grounds for a good faith belief that the defendant had committed "medical negligence" in the "care or treatment" of Smith. Because a medical malpractice claim that fails to allege a physician-patient relationship between a plaintiff and a defendant is legally insufficient; Jarmie v. Troncale , supra, 306 Conn. at 588-89 , 50 A.3d 802 ; and because it is undisputed that the plaintiff never was a patient of the defendant, the defendant contends that the trial court properly struck the complaint.

The plaintiff responds that, although she attached a certificate of good faith pursuant to § 52-190a (a) out of an abundance of caution, her complaint alleges ordinary, common-law negligence rather than medical malpractice. She notes that the single count complaint is titled simply "negligence," and it alleges that the plaintiff's "injuries were the result of the negligence and carelessness of the [defendant] ... in [that he failed] to properly advise ... Smith of his STD test results ...." At no point, moreover, does the complaint use the term "medical malpractice."

A

We begin our analysis by reiterating that, although the better practice may be to include a separate count of the complaint for each distinct theory of liability, there is no such requirement. Practice Book § 10-26 provides that, "[w]here separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction, are joined, the statement of the second shall be prefaced by the words Second Count, and so on for the others ...." (Emphasis omitted.) In construing an earlier version of this rule of practice, this court explained that it has "uniformly approved the use of a single count to set forth the basis of a plaintiff's claims for relief [when] they grow out of a single occurrence or transaction or closely related occurrences or transactions, and it does not matter that the claims for relief do not have the same legal basis. It is only when the causes of action, that is, the groups of facts [on] which the plaintiff bases his claims for relief, are separate and distinct that separate counts are necessary or indeed ordinarily desirable." (Footnote omitted.) Veits v. Hartford , 134 Conn. 428 , 438-39, 58 A.2d 389 (1948). That remains the rule in this state, and it has been applied with respect to a single count complaint alleging different theories of negligence. See Wheeler v. Beachcroft, LLC , 320 Conn. 146 , 160, 129 A.3d 677 (2016) ("[e]ven though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action" [internal quotation marks omitted] ); Beaudoin v. Town Oil Co. , 207 Conn. 575 , 588, 542 A.2d 1124 (1988) (restating rule as articulated in Veits ); Baldwin v. Jablecki , 52 Conn. App. 379 , 382, 726 A.2d 1164 (1999) (statutory and common-law negligence may be pleaded in single count). Indeed, in Jarmie , on which both parties rely, we treated the single count complaint as alleging both medical malpractice and common-law negligence when the pleadings were substantially similar to those at issue here. See Jarmie v. Troncale , supra, 306 Conn. at 583-86 , 50 A.3d 802 ; cf. Byrne v. Avery Center for Obstetrics & Gynecology, P.C. , 314 Conn. 433 , 463, 102 A.3d 32 (2014) (reference to violation of statutory duty did not transform count of complaint alleging common-law negligence into statutory claim). 2

Accordingly, we may assume, for the sake of argument, that the defendant is correct that the complaint reasonably can be read to allege that he committed professional malpractice by failing to follow accepted medical standards in his advising, treatment, and ongoing testing and monitoring of Smith. The question that we must resolve is simply whether the complaint also alleges that the defendant committed ordinary common-law negligence by permitting or instructing his office staff to give Smith the wrong test results. 3

B

The following well established principles guide our analysis. First, "[b]ecause a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling ... is plenary.... We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc. , 322 Conn. 385 , 398, 142 A.3d 227 (2016).

"In Connecticut, we long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.... [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory [on] which it proceeded, and do substantial justice between the parties.... Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension." (Citation omitted; internal quotation marks omitted.) ATC Partnership v. Windham , 268 Conn. 463 , 466 n.4, 845 A.2d 389 (2004).

Second, our courts have long recognized that a health care provider may commit ordinary negligence, as opposed to medical malpractice, in the course of treating a patient or providing medical services. See, e.g., Multari v. Yale New Haven Hospital, Inc. , 145 Conn. App. 253 , 260, 75 A.3d 733 (2013) ("The plaintiff has not alleged medical malpractice ... but simply ordinary negligence against an entity that happens to be a medical provider. The fact that the defendant is a medical provider, does not, by itself, preclude a finding that the plaintiff's action sounds in ordinary negligence."); Badrigian v. Elmcrest Psychiatric Institute, Inc. , 6 Conn. App. 383 , 385-86, 505 A.2d 741 (1986) (claim that defendant failed to supervise psychiatric patients in crossing highway sounded in ordinary negligence); see also Jarmie v. Troncale , supra, 306 Conn. at 593 and n.5, 50 A.3d 802 (leaving open possibility of third-party negligence claims against health care providers).

To determine whether a claim against a health care provider sounds in ordinary negligence rather than (or in addition to) medical malpractice, we must "review closely the circumstances under which the alleged negligence occurred. [P]rofessional negligence or malpractice ... [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services....

[M]alpractice presupposes some improper conduct in the treatment or operative skill [or] ... the failure to exercise requisite medical skill ...." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn. , 262 Conn. 248 , 254, 811 A.2d 1266 (2002). "[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.... Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard." (Internal quotation marks omitted.) Id., at 254-55, 811 A.2d 1266 . Accordingly, a claim sounds in medical malpractice when "(1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." (Internal quotation marks omitted.) Id., at 254, 811 A.2d 1266 . In connection with an ordinary negligence claim, by contrast, the defendant's conduct is judged against the standard of "what a reasonable person would have done under the circumstances ...." Considine v. Waterbury , 279 Conn. 830 , 859, 905 A.2d 70 (2006).

C

With these principles in mind, we consider the plaintiff's complaint. The relevant allegations of the complaint indicate that the defendant reviewed Smith's test results, notified a staff member of those results, and delegated to the staff member the task of informing Smith of the results. The complaint further alleges that the lab report contained a guide that made clear that Smith had tested positive for herpes. In addition, the complaint alleges that, although the test results were positive, the staff member informed Smith that his results were negative. Finally, the plaintiff alleges that the defendant's negligence in failing to accurately advise Smith of his positive test results caused Smith to infect the plaintiff with herpes.

These allegations are consistent with two distinct theories of negligence. First, the defendant could have misread Smith's lab report and incorrectly concluded that the results were negative. Second, it is possible that the defendant interpreted the report correctly but that either the defendant misinformed his staff member that the results were negative or the staff member misinformed Smith. In other words, the alleged error could have occurred either in the initial interpretation of the report or in the inaccurate communication of the results, via the staff member, to Smith. See 2 Restatement (Second), Torts § 311 (2), p. 106 (1965) (negligence may consist of failure to exercise reasonable care in ascertaining accuracy of information or in manner in which information is communicated).

In either case, we agree with the plaintiff that her allegations reasonably can be understood to sound in ordinary negligence. It is true that the alleged error transpired in a medical setting and that it arose as a result of a medical diagnosis in the context of an ongoing physician-patient relationship. There are at least two reasons, however, why we nevertheless conclude that this aspect of the complaint need not be read to sound in medical malpractice.

First, the alleged error is not one involving professional medical judgment or skill. If the defendant misread Smith's lab result, then he failed to perform what was, in essence, a simple, ministerial task. The index to the report states that a result greater than 1.1 indicates a positive test, and the report states that Smith's result was 4.43. No advanced medical training was necessary to determine that Smith had tested positive for herpes; elementary reading and arithmetic skills should have been sufficient. Indeed, laypeople routinely perform comparable tasks, such as reading and interpreting meat thermometers, oil dipsticks, pool and spa test strips, and insulin tests.

Of course, the same conclusion holds to an even greater extent if the genesis of the error was that the defendant simply told his staff member the wrong test result or the staff member relayed the wrong result to Smith. That sort of careless miscommunication could occur in any setting and has nothing to do with the exercise of professional medical judgment or skill. Indeed, the very fact that the defendant delegated the task to a staff member, who presumably was not a medical doctor, points to the nontechnical nature of the communication.

Second, regardless of whether the alleged error arose from a misreading or a miscommunication, proving that it constituted negligence would not require expert medical testimony or the establishment of a professional standard of care. A jury will not need expert testimony to determine whether the defendant's staff was negligent in leading Smith to believe that he was free of STDs when the defendant knew, or should have known, that Smith had tested positive for herpes, a contagious STD, and intended to engage in sexual activity. Such a determination is well within the ken of a lay person. 4

Accordingly, we conclude that, as in Jarmie , the plaintiff in this case pleaded a cause of action sounding in ordinary negligence. We therefore turn our attention to the plaintiff's claim that the defendant, in informing Smith of his test results, owed a common-law duty of care not only to Smith but also to the plaintiff, a nonpatient.

II

Having concluded that the plaintiff's claim sounds in ordinary negligence, we now must determine whether, under the circumstances presented in this case, a physician owes a duty of care to an identifiable third party 5 who is not a patient. We conclude that a physician does owe such a duty.

A

We begin by setting forth the elements of a cause of action in ordinary negligence. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.... Contained within the first element, duty, there are two distinct considerations.... First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty.... The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the [alleged tortfeasor] violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Jarmie v. Troncale , supra, 306 Conn. at 589 , 50 A.3d 802 .

"Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury [that] resulted was foreseeable, but the test is, would the ordinary [person] in the [alleged tortfeasor's] position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result ....

"A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed.... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself ... but is only an expression of the sum total of those considerations of policy [that] lead the law to say that the plaintiff is entitled to protection.... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Id., at 590, 113 A.3d 932 .

The default assumption of the common law, then, is that one owes a duty to exercise due care in one's affirmative conduct with respect to all people, insofar as one's negligent actions may foreseeably harm them. 3 F. Harper et al., Harper, James and Gray on Torts (3d Ed. 2007) § 18.6, p. 862. Under specific circumstances, however, the law, for reasons of public policy, places additional restrictions on the class of people to whom a duty of care is owed. See, e.g., id., § 18.3, p. 781. In most instances, for example, a physician's liability for the negligent care and treatment of a patient does not extend to nonpatient third parties who have been foreseeably injured by that negligence. Id., § 18.5A, p. 852; see also Jarmie v. Troncale , supra, 306 Conn. at 592-93 , 50 A.3d 802 . But see Squeo v. Norwalk Hospital Assn. , 316 Conn. 558 , 568, 113 A.3d 932 (2015) (recognizing limited cause of action for bystander emotional distress resulting from medical malpractice); Jarmie v. Troncale , supra, at 593 n.5, 50 A.3d 802 (declining to endorse per se rule barring third-party claims against health care providers). The present case requires us to further clarify the scope of this exception to the general duty rule.

B

With these principles in mind, we now turn our attention to the central question posed by the present appeal, namely, whether a health care provider who negligently misinforms a patient that he does not have an STD owes a duty of care to an identifiable third party who foreseeably 6 contracts the STD as a result of the provider's negligence. The defendant contends that various public policy considerations counsel against recognition of such a duty. Most notably, because a patient such as Smith could have been or become intimate with an unlimited number of romantic partners, there is no meaningful way to identify or restrict the number of individuals whom he might infect and, therefore, to limit the class of persons who could have standing to bring an action of this sort.

The defendant further contends that a number of public policy considerations and common-law traditions that are unique to the health care environment or, specifically, to the physician-patient relationship, counsel against recognizing a physician's duty to a nonpatient third party under the circumstances alleged in the present case. He argues that (1) the law generally does not impose on physicians a duty of care to nonpatient third parties, (2) the considerations underlying the adoption of Connecticut's medical malpractice statutes, General Statutes §§ 52-190a through 52-190c, disfavor the imposition of additional liability on physicians, (3) imposing on physicians duties to third parties risks interfering with and undermining the physician-patient relationship, and (4) considerations of confidentiality create both legal and logistical hurdles to the recognition of such duties. Finally, the defendant contends that the plaintiff could have taken various measures both to protect herself from contracting herpes-presumably sexual abstention or the use of prophylactics-and to establish proper standing to bring an action of this sort-such as accompanying Smith when he sought treatment from the defendant.

The trial court, in granting the defendant's motion to strike, was swayed by a number of these arguments. The court also discussed several additional concerns: whether physicians might become obligated to contact and warn or to educate patients' sexual partners; the fact that physicians have no control over whether and how patients share their STD test results with potential sexual partners; and whether the recognition of a duty to nonpatients should be predicated on the existence of a formal, mutual STD testing agreement between the patient and his or her prospective sexual partner. Although the defendant, certain of the amici, 7 and the trial court raise many valid concerns, for the reasons that follow, we are persuaded that they do not counsel against the recognition of a duty under the specific circumstances presented in this case.

1

Setting aside for the moment the question of what third-party duties apply within the distinct confines of the physician-patient relationship, we observe at the outset that many of the concerns that the defendant raises and that the trial court found persuasive have been addressed and resolved in other professional contexts. Although the plaintiff has not labeled it as such, her claim is, in essence, one for negligent misrepresentation. That tort specifically encompasses situations such as this, in which a tortfeasor negligently supplies misinformation knowing that the recipient of that information intends to supply it in turn for the benefit and guidance of a third party.

"This court has long recognized liability for negligent misrepresentation. We have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.... [When the information supplied is to be used in the furtherance of a business transaction and the alleged harm is solely pecuniary, the] governing principles are set forth in ... § 552 of [Volume 3 of] the Restatement Second of Torts [1977]: One who, in the course of his business, profession or employment ... supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance [on] the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Citations omitted; internal quotation marks omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School , 202 Conn. 206 , 217-18, 520 A.2d 217 (1987). Recognizing the potentially limitless scope of the financial harms that may flow from the dissemination of false information, the Restatement (Second) restricts liability for negligent misrepresentation of this sort to the loss suffered "(a) by the person or one of a limited group of persons for whose benefit and guidance [the defendant] intends to supply the information or knows that the recipient intends to supply it," and "(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction." 3 Restatement (Second), Torts § 552 (2) (a) and (b), p. 127 (1977) ; see also id., comment (a), pp. 127-28. In other words, the Restatement (Second) addresses the problem of potentially limitless third-party liability, first, by conferring standing on only those third parties to whom the defendant knew that the recipient intended to supply the information at issue and, second, by restricting liability to losses arising from transactions for the purpose of which the information was supplied.

Defined and cabined in this manner, liability for negligent misinformation has been upheld in various contexts in which a professional is hired to supply information to a client, knowing that the client is obtaining the information at least in part for the benefit and guidance of some third party or parties. Although we have not definitively resolved whether an accountant or an auditor may be liable for negligent misrepresentation to a nonclient third party; see Stuart v. Freiberg , 316 Conn. 809 , 816-17, 831-32 n.17, 116 A.3d 1195 (2015) (deeming it unnecessary to determine whether liability could be imposed and leaving question open); a number of other courts have held that such professionals can be held liable under the approach set forth in § 552 of the Restatement (Second) of Torts. See, e.g., Ellis v. Grant Thornton LLP , 530 F.3d 280 , 288-89 (4th Cir.) (applying West Virginia law), cert. denied, 555 U.S. 1049 , 129 S. Ct. 652 , 172 L. Ed. 2d 615 (2008) ; North American Specialty Ins. Co. v. Lapalme , 258 F.3d 35 , 38-40 (1st Cir. 2001) (applying Massachusetts law) ; see also Tricontinental Industries, Ltd. v. PricewaterhouseCoopers, LLP , 475 F.3d 824 , 836 (7th Cir. 2007) (applying similar Illinois rule).

A growing number of courts also have dispensed with the traditional privity requirement and have imposed liability on attorneys with respect to transactions in which the attorney's opinion is solicited for the benefit of an identifiable third party. See generally B. Walker, Note, "Attorney's Liability to Third Parties for Malpractice: The Growing Acceptance of Liability in the Absence of Privity," 21 Washburn L.J. 48 (1981) (noting modern trend toward imposing liability and discussing cases). Although courts following the modern approach to professional negligent misinformation claims have not been oblivious to the concerns raised by the defendant and certain of the amici-the potential for limitless third-party liability, interference with the professional-client relationship, and the undue burdening of the professional practice-they have concluded that limiting liability to circumstances in which professional services are sought for the specific benefit of identifiable third parties adequately addresses any concerns centering around both foreseeability and professionalism. See id., 65-66 ; see also North American Specialty Ins. Co. v. Lapalme , supra, 258 F.3d at 40 ; Pelham v. Griesheimer , 92 Ill. 2d 13 , 20-21, 64 Ill.Dec. 544 , 440 N.E.2d 96 (1982). 8

Moreover, as we discuss more fully in part II B 4 of this opinion, the Restatement (Second) of Torts recognized that there is even less need to cabin potential third-party liability for negligent misrepresentation in cases such as this, in which the misinformation was not supplied for the recipient's financial benefit and the third-party plaintiff suffered physical as well as pecuniary injuries. Under those circumstances, the Restatement (Second) advises that "[o]ne who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results ... (b) to such third persons as the actor should expect to be put in peril by the action taken." 2 Restatement (Second), supra, § 311 (1) (b), p. 106. Similar principles underlie § 324A, which provides that "[o]ne who undertakes ... to render services to another which he should recognize as necessary for the protection of a third person ... is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or ... (c) the harm is suffered because of reliance of the other or the third person upon the undertaking." Id., § 324A (a) and (c), p. 142.

2

Turning to the specific question of what duties, if any, a medical professional owes to a nonpatient third party, we begin by reviewing Connecticut precedent. The parties agree that Jarmie v. Troncale , supra, 306 Conn. 578 , 50 A.3d 802 , is the seminal Connecticut case on the subject, but they disagree as to how the present case should be resolved under Jarmie . 9 We conclude that, although Jarmie helps to guide our analysis, whether a physician owes a duty of care to a patient's intimate partner to accurately report that patient's STD test results remains a question of first impression in Connecticut.

In Jarmie , the defendant physician diagnosed and treated a patient for various liver and kidney ailments, including hepatic encephalopathy but failed to warn her of the latent driving impairment associated with her condition. Id., at 581, 50 A.3d 802 . After leaving the physician's office, the patient lost consciousness while operating her motor vehicle and struck the plaintiff. Id. The trial court granted the defendant's motion to strike the plaintiff's complaint in his subsequent negligence action against the physician, concluding that physicians owe no common-law duty to protect third parties from injuries caused by patients. Id., at 582, 50 A.3d 802 .

On appeal, we began by emphasizing that there is no common-law or statutory rule against nonpatients bringing ordinary negligence claims against physicians. Id., at 586, 50 A.3d 802 . We recognized, however, that our cases display a general aversion to extending a physician's duty of care to nonpatients. See id., at 592, 50 A.3d 802 . That aversion is rooted in the principles of tort reform underlying § 52-190a, as well as the common-law rule that, in the absence of a special relationship, there is no duty to protect a third person from the conduct of another. Id. We further explained that "[t]here is no well established common-law rule that a physician owes a duty to warn or advise a patient for the benefit of another person." Id. Nevertheless, we emphasized that we have not "employed or endorsed a per se rule that [third-party] claims [against health care providers] are categorically barred because of the absence of a physician-patient relationship but, rather ... this court has exercised restraint when presented with opportunities to extend the duty of health care providers to persons who are not their patients." (Internal quotation marks omitted.) Id., at 593-94 n.5, 50 A.3d 802 . In addition, we distinguished cases from other jurisdictions that had imposed third-party liability on a physician by remarking that those cases, unlike Jarmie , involved a physician who had "failed to warn the patient that he or she either had a communicable disease or had been exposed to one." Id., at 616, 50 A.3d 802 . Accordingly, we left open the possibility that, under appropriate circumstances, and in particular with respect to the diagnosis of communicable diseases, a physician's common-law duty of care may extend to nonpatients. 10 In the parts of this opinion that follow, we will discuss and apply the various factors and considerations that we deemed to be relevant to the duty analysis in Jarmie . For now, we emphasize two points. First, a principal reason that we affirmed the judgment of the trial court in Jarmie and declined to recognize that the defendant physician owed a duty to the plaintiff motorist was because the plaintiff was not an identifiable victim at the time that medical services were provided. Id., at 590-91, 603, 50 A.3d 802 . Rather, "potential victims of [the physician's] alleged negligence included any random pedestrian, driver, vehicular passenger or other person who happened to come in close proximity to a motor vehicle operated by [the patient] following her diagnosis." Id., at 597, 50 A.3d 802 .

We explained that, in previous cases, we had "limited foreseeable victims of a health care provider's negligence to identifiable persons ...." Id., at 594, 50 A.3d 802 ; see id., at 596, 50 A.3d 802 ("the foreseeability test as applied by this court in the context of health care providers has ... required an identifiable victim because we have deemed the effect of a physician's conduct on third parties as too attenuated"); see also Jacoby v. Brinckerhoff , 250 Conn. 86 , 96-97, 735 A.2d 347 (1999) (psychiatrist owed no duty to patient's ex-spouse, who was not identifiable victim); Fraser v. United States , 236 Conn. 625 , 632, 674 A.2d 811 (1996) (psychotherapist owed no duty to victim because "our decisions defining negligence do not impose a duty to those who are not identifiable victims [and] ... in related areas of our common law, we have concluded that there is no duty except to identifiable persons").

In the present case, by contrast, the plaintiff has alleged that "Smith told [the defendant] that he was seeking STD testing not only for his benefit, but for the protection and benefit of his new, exclusive girlfriend, [the] plaintiff." Construing this pleading in the light most favorable to sustaining the sufficiency of the complaint, we must conclude that the plaintiff was an identifiable, if not identified, potential victim of the defendant's alleged negligence at the time that treatment was rendered. 11 That is to say, only one woman could have fit the description of Smith's exclusive girlfriend, and Smith presumably could have identified her by name if he had been asked to do so. See Jarmie v. Troncale , supra, 306 Conn. at 597-98 , 50 A.3d 802 (identifiable victim is one whom it was possible to identify before negligent act occurred).

This identifiable victim requirement strikes an equitable balance between the interests at stake. Although a health care provider's liability may expand beyond his or her patients, its increased scope would encompass only those third-party victims of whose existence and potential exposure to harm the health care provider had been made aware-or could have become aware-prior to the negligent act. 12

Second, since we decided Jarmie , we have held that, under limited circumstances, a health care provider is liable to third parties for professional negligence, albeit in the context of a bystander emotional distress claim. In Squeo v. Norwalk Hospital Assn. , supra, 316 Conn. 558 , 113 A.3d 932 , we concluded that "a bystander to medical malpractice may bring a claim for the resulting emotional distress ... when the injuries result from gross negligence such that it would be readily apparent to a lay observer." Id., at 560, 113 A.3d 932 . In so holding, we relied on "our recent statement in Jarmie ... eschewing any per se rule that [third-party tort] claims are categorically barred because of the absence of a physician-patient relationship ...." 13 (Citation omitted; internal quotation marks omitted.) Id., at 574, 113 A.3d 932 .

Accordingly, we find Connecticut precedent to be unsettled with respect to the particular question presented here. Although we never have been confronted with the question of a physician's duty to a third party with respect to the reporting of STD test results, and although we consistently have expressed a general aversion to extending the duty of health care providers to third parties, we have allowed, under limited circumstances, for the imposition of liability to an identifiable potential victim who will be foreseeably harmed by a physician's negligence.

3

In Jarmie , after we concluded that Connecticut precedent did not bar the imposition of the duty at issue, we proceeded to look to sister state authority and also to consider whether various policy factors favored the imposition of such a duty. Jarmie v. Troncale , supra, 306 Conn. at 598-624 , 50 A.3d 802 . In this part of the opinion, we review how other jurisdictions have resolved similar cases. In part II B 4, we analyze the various policies at issue. A number of other jurisdictions have held that, under certain circumstances, the duty of a medical professional to correctly diagnose and advise a patient who suffers from a communicable disease extends not only to the patient but also to third parties who may foreseeably contract that disease from the patient. See 61 Am. Jur. 2d 382, Physicians, Surgeons and Other Healers § 226 (2012) ("[a] physician is liable for his or her negligence in permitting persons to be exposed to infectious or communicable diseases to the injury of the persons so exposed"); see also L. Gostin & J. Hodge, "Piercing the Veil of Secrecy in HIV/AIDS and Other Sexually Transmitted Diseases : Theories of Privacy and Disclosure in Partner Notification," 5 Duke J. Gender L. & Policy 9, 37 (1998); T. Bateman, annot., " Liability of Doctor or Other Health Practitioner to Third Party Contracting Contagious Disease from Doctor's Patient, 3 A.L.R.5th 370 , 377-79, § 2 [a] (1992) ; G. Sarno, "Physician's Failure To Protect Third Party from Harm by Nonpsychiatric Patient," 43 Am. Jur. Proof of Facts 2d 657, 670-72, § 3 (1985). Many such courts, for example, have long held that physicians and other health care providers charged with diagnosing, treating, and controlling the spread of contagious diseases owe a duty of care to members of the immediate family of an infected patient. See, e.g., Bolieu v. Sisters of Providence in Washington , 953 P.2d 1233 , 1239 (Alaska 1998) ; Hofmann v. Blackmon , 241 So. 2d 752 , 753 (Fla. App. 1970), cert. denied, 245 So. 2d 257 (Fla. 1971) ; Shepard v. Redford Community Hospital , 151 Mich. App. 242 , 245-46, 390 N.W.2d 239 (1986), appeal denied, 431 Mich. 872 , 430 N.W.2d 458 (1988) ; Skillings v. Allen , 143 Minn. 323 , 326, 173 N.W. 663 (1919) ; Wojcik v. Aluminum Co. of America , 18 Misc. 2d 740 , 746-47, 183 N.Y.S.2d 351 (1959). 14 In some of these cases, the court held that the provider had an affirmative duty to notify or educate the third party, whereas, in other cases, the court simply held that a third party had standing to enforce the provider's duty to properly diagnose, treat, and educate the infected patient.

Although appellate cases addressing a physician's duties to a patient's premarital sexual partners are few and far between, the plaintiff and certain of the amici have identified several cases that permit an action to be brought either by a victim who was identifiable at the time of treatment or by any member of the class of persons who foreseeably could contract an STD from the patient as a result of the physician's negligence. See, e.g., Reisner v. Regents of the University of California , 31 Cal. App. 4th 1195 , 1200-1201, 37 Cal. Rptr. 2d 518 (1995) (physician had duty to advise patient that he tested positive for human immunodeficiency virus (HIV) for benefit of unknown and unidentifiable but foreseeable sexual partners), review denied, California Supreme Court, Docket No. S045274 (May 18, 1995); C.W. v. Cooper Health System , 388 N.J. Super. 42 , 60-62, 906 A.2d 440 (App. Div. 2006) (health care provider owed duty to inform patient of positive HIV test results and that duty extended to persons "within the class of reasonably foreseeable individuals whose health [was] likely to be threatened by the patient's ignorance of his own health status," including patient's future sexual partner); DiMarco v. Lynch Homes-Chester County, Inc. , 525 Pa. 558 , 563-64, 583 A.2d 422 (1990) (when boyfriend of blood technician who acquired hepatitis B from accidental exposure was member of class of persons whose health was likely to be threatened by exposure to such communicable disease, and her physicians gave erroneous advice to her regarding potential spread of that disease, boyfriend had cause of action against physicians); Estate of Amos v. Vanderbilt University , 62 S.W.3d 133 , 138 (Tenn. 2001) (future husband and daughter of patient who was not informed that she was at risk of contracting HIV deemed members of identifiable class for purposes of hospital's third-party liability).

The defendant attempts to distinguish these cases on the ground that the plaintiff, unlike the sexual partners at issue in the cited cases, could have accompanied Smith when he sought STD testing and thus established a quasipatient relationship with the defendant sufficient to support a legal duty of care. We are not persuaded by this contention. First, the defendant provides no authority to support his theory that either the law or the medical profession confers a special status on a nonspouse sexual partner who accompanies a patient to his or her appointment with a physician and that that status is sufficient to support a legal duty of care. Second, it may well be that the defendant's suggested approach would interfere more directly with the physician-patient relationship and raise more substantial confidentiality concerns than would the imposition of the third-party duty of care for which the plaintiff advocates.

The defendant also notes that many of these cases involve potentially deadly diseases such as HIV that are more serious than herpes. We agree with the Alaska Supreme Court, however, that "the duty issue cannot turn on possible distinctions among diseases based on their severity and ubiquity.... Rather, the severity and ubiquity of the disease bear on what the [provider] must do to discharge the duty." Bolieu v. Sisters of Providence in Washington , supra, 953 P.2d at 1240 .

A Florida case, Hawkins v. Pizarro , 713 So. 2d 1036 (Fla. App.) review denied, 728 So. 2d 202 (Fla. 1998), provides an instructive contrast. In that case, a patient tested positive for hepatitis C, but her physician's office improperly advised her that she had tested negative. Id., at 1037. Several months later, the patient met the plaintiff, whom she eventually married. Id. The plaintiff contracted hepatitis C from the patient and filed an action against the physician for medical negligence. Id. In upholding the trial court's granting of summary judgment in favor of the defendant, the District Court of Appeal of Florida recognized that hepatitis C is a highly contagious sexually transmitted disease and that a physician's duty of care in treating such diseases is intended in part for the benefit of third parties. Id., at 1037-38. The court held that the physician owed no duty to the plaintiff, however, because he was neither identified nor known to the physician at the time of the incorrect diagnosis. Id., 1038. By contrast, our research has not revealed any cases in which a court held that there was no third-party liability under circumstances such as those in the present case, in which STD testing was obtained expressly for the benefit of an identifiable, exclusive romantic partner. But cf. D'Amico v. Delliquadri , 114 Ohio App. 3d 579 , 583, 683 N.E.2d 814 (1996) (plaintiff conceded that, under Ohio law, defendant physician owed her no direct duty to properly warn and advise his patient, plaintiff's boyfriend, as to communicability of genital warts ). 15 Beyond sister state authority, we further note that the Restatement (Second) of Torts appears to support the imposition of liability in a case such as this. As we previously discussed, § 311 of the Restatement (Second) provides that one who negligently gives false information may be held liable to a third party who predictably is injured by the recipient's reasonable reliance on that information. Notably, comment (b) to that section holds up the physician-patient relationship as the primary illustration of the rule: "The rule stated in this [s]ection finds particular application where it is part of the actor's business or profession to give information upon which the safety of the recipient or a third person depends. Thus it is as much a part of the professional duty of a physician to give correct information as to the character of the disease from which his patient is suffering, where such knowledge is necessary to the safety of the patient or others , as it is to make a correct diagnosis or to prescribe the appropriate medicine." (Emphasis added.) 2 Restatement (Second), supra, § 311, comment (b), p. 106. Accordingly, we conclude that sister state and secondary authorities, although limited, generally support the imposition of a third-party duty under the circumstances alleged in the present case. As we discuss in part II B 5 of this opinion, sister state courts generally have not been swayed by the various practical concerns that the defendant and certain of the amici have raised and that the trial court found to be compelling.

4

Next, because the question presented is one of first impression in Connecticut, we consider various public policy factors that both this court and other authorities have deemed to be relevant to whether and under what circumstances a physician owes a duty of care to a nonpatient third party. On balance, we conclude that those factors support the imposition of a third-party duty of care under the circumstances of the present case.

In Jarmie , we identified the following factors, among others, as being relevant to the question of what duty of care a physician owes to nonpatient third parties: the purposes of the tort compensation system, including efficiency, harm avoidance, and the appropriate distribution of loss; Jarmie v. Troncale , supra, 306 Conn. at 599-602 , 50 A.3d 802 ; the normal expectations of the participants in the activity under review and the public policy of encouraging participation in the activity, including the sanctity of the physician-patient relationship; id., at 603-14, 50 A.3d 802 ; and the purposes that underlie Connecticut's medical malpractice statute, § 52-190a, including the avoidance of increased litigation and higher health care costs.

Id., at 592-93, 603, 614-15, 50 A.3d 802 . When addressing third-party liability in the context of infectious diseases in particular, courts also have taken into account such considerations as "the foreseeability of third-party injury as shown by the patient's [infectious disease] carrier status, the degree of communicability of the patient's infectious disease, and the physician's actual or constructive knowledge of the ease of transmission of the patient's infectious disease; a public health statute [the] legislative intent [of which] is partly to protect third parties, such as a statute requiring physicians to report diagnosed instances of communicable or infectious diseases ; breach of the physician's duty to exercise due care to protect third parties from foreseeable harm as shown by failure to report diagnosed instances of communicable or infectious diseases to public health authorities, failure to warn the patient with the infectious disease not to have contact with third parties, failure to warn the family of the patient with the infectious disease about the ease of, and precautions against, its transmission, failure to quarantine the patient with the infectious disease, failure to vaccinate the patient's family [members] against the infectious disease, conveyance of an affirmative indication that contact with the infected patient is not risky, and failure to take other reasonable measures to prevent exposure to the patient with the communicable disease; additional indicia of negligence, including failure to use standard available tests for diagnosing a patient's infectious disease, failure to interpret diagnostic test results correctly, and failure to diagnose the patient's infectious disease; and harm to a third-party plaintiff as shown by the third party's illness from exposure to the physician's infectious patient." T. Bateman, supra, 3 A.L.R.5th 379 , § 2 [b].

a

For purposes of the present appeal, two of these factors, or sets of factors, are especially pertinent to our analysis. First, although we continue to recognize the sanctity of the physician-patient relationship and the need to exercise "restraint when presented with opportunities to extend the duty of health care providers to persons who are not their patients"; Jarmie v. Troncale , supra, 306 Conn. at 592 , 50 A.3d 802 ; we also recognize that such concerns are at their nadir, and a physician's broader public health obligations are at their zenith, with respect to the diagnosis and treatment of infectious diseases.

Throughout history, both medical organizations and government entities have recognized not only the critical role that physicians play in combatting the spread of contagious diseases such as STDs, but also the concomitant fact that, in diagnosing and treating such diseases, a physician's duties and loyalties necessarily must be divided between the patient and other people whom the patient may infect. See generally L. Gostin & J. Hodge, supra, 5 Duke J. Gender L. & Policy 9. For example, "one of the earliest recorded public health strategies for STD prevention was to pierce the veil of secrecy surrounding these hidden diseases by notifying sexual partners ... of infected patients ...." Id., 11. "Often known collectively as the 'duty to warn,' these [judicially imposed, common-law] obligations subsequently have been codified by many state legislatures." Id., 12. For example, partner notification measures were broadly implemented during the 1930s in an effort to control and eradicate the syphilis epidemic. Id., 21. Many states continue to operate provider based partner referral programs under which health care providers are responsible for contacting, on a confidential basis, the sexual partners of patients diagnosed with various STDs. See id., 27-32.

Indeed, even the American Medical Association (AMA), one of the amici supporting the defendant's position, which argues against the imposition of a third-party duty under these circumstances, has recognized that, "[a]lthough physicians' primary ethical obligation is to their individual patients"; American Medical Association, Code of Medical Ethics (2017) opinion 8.4, p. 128; they also have a responsibility "to protect and promote the health of the public." Id., opinion 8.1, p. 125. "[P]hysicians must balance dual responsibilities to promote the welfare and confidentiality of the individual patient and to protect public safety." Id., opinion 8.2, p. 126. The AMA has further observed that a physician's "long-recognized" professional responsibilities to nonpatients are especially pronounced in the context of infectious disease, for which professional standards of care demand that a physician not only treat his or her own patients competently, but also go so far as to "[p]articipate in implementing scientifically and ethically sound quarantine and isolation measures in keeping with the duty to provide care in epidemics." Id., opinion 8.4, p. 128.

As we noted, the principle that a physician's duty to protect the broader public health and to help to deter the spread of contagious diseases at times transcends the physician's duty to his or her individual patient has long been codified in federal and state law. See, e.g., L. Gostin & J. Hodge, supra, 5 Duke J. Gender L. & Policy 58. Connecticut is no exception in this respect. Our legislature has, for example, enacted laws that require physicians to test pregnant patients for syphilis and HIV; General Statutes § 19a-90 ; require health care providers to report certain communicable diseases to local and state public health officials; General Statutes § 19a-215 ; and permit physicians to warn, or to disclose confidential patient information for the purpose of warning, a known partner of a patient who has been diagnosed with an HIV infection or related disease. General Statutes § 19a-584 (b).

Perhaps most notably, since 2006, both the United States Centers for Disease Control and Prevention (CDC) and the AMA have approved the use of so-called expedited partner therapy programs to combat the spread of STDs. 16 Expedited partner therapy "is the delivery of medications or prescriptions by persons infected with an STD to their sex partners without clinical assessment of the partners"; in accordance with this protocol, "[c]linicians ... provide patients with sufficient medications directly or via prescription for the patients and their partners." 17 The AMA has authorized the use of expedited partner therapy even though that approach to treating STDs "potentially abrogates the standard informed consent process, compromises continuity of care for patients' partners, encroaches [on] the privacy of patients and their partners, increases the possibility of harm by a medical or allergic reaction, leaves other diseases or complications undiagnosed, and may violate state practice laws." American Medical Association, supra, opinion 8.9, p. 132. In other words, the medical profession has formed the judgment that the need to stem the spread of STDs is so great, and the traditional physician-patient model so inadequate therefor, that an exception to the prevailing standard of care should be drawn so that physicians can provide treatment to third parties who are not their patients. Our legislature has embraced this novel approach, allowing practitioners to dispense oral antibiotic drugs to the sexual partners of patients who have been diagnosed with chlamydia or gonorrhea, two kinds of STDs, without first physically examining the partners. See General Statutes § 20-14e (e).

We recognize that none of these laws directly applies to herpes. This presumably reflects in part the fact that that disease is not curable at present, and, thus, the sexual partners of patients infected with herpes would not be candidates for programs such as expedited partner therapy. At the same time, the fact that herpes is incurable highlights the extent to which a physician's duties in a case such as this run to third parties as well as to the patient, as it will be the patient's potential sexual partners who are the most direct beneficiaries of the diagnosis. 18

Perhaps more than in any other field of medicine, then, the duty of care that a physician owes to his or her patient in the diagnosis and treatment of infectious and sexually transmitted diseases also, necessarily, entails some duty to third parties who are likely to contract the disease from the patient. As the Supreme Court of Pennsylvania explained, "[c]ommunicable diseases are so named because they are readily spread from person to person. Physicians are the first line of defense against the spread of communicable diseases, because physicians know what measures must be taken to prevent the infection of others. The patient must be advised to take certain sanitary measures, or to remain quarantined for a period of time, or to practice sexual abstinence or what is commonly referred to as safe sex." (Internal quotation marks omitted.) DiMarco v. Lynch Homes-Chester County, Inc. , supra, 525 Pa. at 562 , 583 A.2d 422 . The court continued: "Such precautions are taken not to protect the health of the patient, whose well-being has already been compromised, [but] rather such precautions are taken to safeguard the health of others." (Emphasis omitted.) Id. ; cf. Davis v. Rodman , 147 Ark. 385 , 391-92, 227 S.W. 612 (1921) ("[o]n account of his scientific knowledge and his peculiar relation, an attending physician is, in a certain sense, in custody of a patient afflicted with [an] infectious or contagious disease"); V. Schwartz et al., Prosser, Wade and Schwartz's Torts: Cases and Materials (11th Ed. 2005) p. 432 (custody of persons with contagious diseases may give rise to singular duty to control conduct of other person).

At the same time, we perceive little risk that imposing a third-party duty under these circumstances would interfere with the physician-patient relationship, breach patient confidentiality, or require the practice of costly defensive medicine. See, e.g., Reisner v. Regents of the University of California , supra, 31 Cal. App. 4th at 1203 , 37 Cal.Rptr.2d 518 . Although the plaintiff contends that the defendant owed her a duty of care as an identifiable potential victim who foreseeably would rely on the accuracy of his diagnosis, her argument is that that duty would have been fully satisfied if the defendant simply had provided the accurate test results to Smith, his patient. In other words, the defendant was under no obligation to contact the plaintiff, to otherwise ensure that she was made aware of Smith's test results, or to do anything other than fulfill his undisputed professional obligation to accurately convey his patient's test results to the patient himself. 19 The concerns of the dissent that our decision in this case will somehow result in the disclosure of confidential medical information are, therefore, wholly unfounded.

In conclusion, we think that it is beyond cavil that physicians such as the defendant owe some duty of care to third parties when diagnosing and treating a patient who suffers from an STD. We do not believe that imposing the duty for which the plaintiff advocates would intrude on the sanctity of the physician-patient relationship. Indeed, the duty at issue here-simply to accurately relay the patient's test results to the patient-is far more limited and less intrusive than the public health reporting and partner notification requirements that have been imposed on physicians in the context of diagnosing and treating infectious diseases.

b

The second set of factors that governs our analysis relates to the purposes of the tort compensation system.

"[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct .... It is sometimes said that compensation for losses is the primary function of tort law ... [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required.... An equally compelling function of the tort system is the prophylactic factor of preventing future harm .... The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.... [Of course] [i]mposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy. Before imposing such liability, it is incumbent [on] us to consider those risks." (Citations omitted; internal quotation marks omitted.) Jarmie v. Troncale , supra, 306 Conn. at 599-600 , 50 A.3d 802 . In the present case, these factors also weigh strongly in favor of imposing a duty on health care providers to identifiable and foreseeable third-party victims such as the plaintiff.

First, we observe that, if the defendant is not held liable to the plaintiff under these circumstances, then, in all likelihood, she will be without remedy or compensation for her injuries. It is doubtful, for example, that the plaintiff could recover in negligence from Smith, who acted responsibly in seeking regular STD testing and did not have sexual contact with her until he was possessed of a reasonable, good faith belief that he was free of STDs.

The trial court, while recognizing "the absence of any other source of compensation for the [plaintiff's] harm," apparently concluded that this factor was mitigated by (1) the fact that "the cost of medical treatment likely would be covered by health insurance," and (2) the plaintiff's ability to engage in "self-protective measures ...." The dissent also is of the view that the plaintiff is not without recourse because she "may well be covered by public or private health insurance policies ...."

There is nothing in the record to support the pure speculation that the plaintiff had, or will continue to have, adequate health insurance. 20 Nor do we think it is appropriate to expect ordinary health insurance policies, or taxpayers, to bear the costs of a physician's negligence. Medical malpractice policies exist to spread such costs.

In any event, the availability of insurance will be of little consolation to the plaintiff, insofar as genital herpes is presently an incurable disease. E.g., E. Moore, Encyclopedia of Sexually Transmitted Diseases (2005) p. 135; Mosby's Medical Dictionary (8th Ed. 2009) p. 872. We must assume that, for the remainder of her life, the plaintiff will suffer periodic outbreaks of painful blisters or ulcers associated with the virus. See, e.g., E. Moore, supra, pp. 132-33. Her desirability as a potential romantic partner may be diminished. And, if she should become pregnant, she will have to contend with the risk that she may transmit the virus to her newborn child. See, e.g., id., p. 135. Some of these injuries will not be covered-or may not be adequately covered-by medical insurance, and we ought not pretend otherwise. Only the defendant can compensate the plaintiff for these losses.

With respect to "self-protective measures," we presume that the trial court was referring to the fact that, notwithstanding Smith's apparently negative STD test results, the plaintiff could have further reduced the risk that she would contract an STD either by using prophylactics or abstaining from intercourse with Smith altogether. Even if we were to assume, for the sake of argument, that it would be reasonable and right to expect couples, such as the plaintiff and Smith, to abstain from sexual intimacy, or to consistently practice safe sex while dating, that would only push back the problem. At some point, their relationship could have progressed to a point at which they would have married and consummated their union. At that point, a wedding band would not have been proof against the defendant's negligence. See Hawkins v. Pizarro , supra, 713 So. 2d at 1037 (STD was misdiagnosed prior to courtship, and sexual partner was diagnosed after marriage).

Second, the flip side of the coin is that, if the plaintiff cannot hold the defendant responsible for his alleged negligence, then errors of this sort will go unadmonished. Patients such as Smith are unlikely to have incurred any legally cognizable damages as a result of an incorrect test report and, therefore, may be unable to recover from a defendant physician. We recognize that not every wrong is compensable in tort and that losses, even unjust losses, sometimes must be allowed to lie where fate has cast them. See Jarmie v. Troncale , supra, 306 Conn. at 599 , 50 A.3d 802 . Under these circumstances, however, imposing third-party liability would play an important role in spurring physicians such as the defendant to take greater care in reporting STD lab results. As the California Court of Appeal recognized in Reisner v. Regents of the University of California , supra, 31 Cal. App. 4th 1195 , 37 Cal.Rptr.2d 518 , the law should "encourage the highest standard of care concerning communicable and infectious diseases ...." Id., at 1201, 37 Cal. Rptr. 2d 518 ; see also id., at 1204, 37 Cal. Rptr. 2d 518 ("we believe that a doctor who knows he is dealing with the [twentieth] [c]entury version of Typhoid Mary ought to have a very strong incentive to tell his patient what she ought to do and not do and how she ought to comport herself in order to prevent the spread of her disease" [footnote omitted] ). Holding the defendant liable to the plaintiff would create such an incentive and deter the careless misreporting of STD test results.

The trial court, while recognizing that imposing third-party liability under these circumstances could play an important deterrent function and help control the insidious spread of STDs, expressed concern over what it saw as potentially unforeseen consequences. The court speculated, for instance, that physicians themselves might feel compelled to discuss lab results with their patients, which could be more costly and less efficient than relying on nurses or office staff to relay results. We do not find this concern compelling.

A patient who seeks medical attention to be tested for a disease, any disease, has a reasonable expectation that the test results will be reported accurately, by whatever means. See, e.g., L. Casalino et al., "Frequency of Failure To Inform Patients of Clinically Significant Outpatient Test Results," 169 Archives Internal Med. 1123, 1123 (2009) ("[f]ailures to inform patients of abnormal test results ... are common and legally indefensible factors in malpractice claims"). The risks and costs associated with misinforming a patient that he does not have a particular disease can be dramatic. Those include the direct costs to the patient and the health care system, as when, for example, treatment of a serious illness such as cancer is irremediably delayed, or, as in the present case, through the inadvertent infection of third parties by a patient who falsely believes that he is free of STDs. Holding health care providers responsible for errors of the sort alleged will help to maintain public trust in the reliability of the STD

reporting system and, therefore, encourage continued participation in this important public health regimen. 21

Of course, it ultimately will be for the jury to determine whether a reasonable health care provider would have reported Smith's test results differently, whether through direct physician-to-patient communications or through the use of additional fail-safes and quality assurance measures. But we certainly are not prepared to say, as a matter of law, that, whatever added costs might be entailed by a quick telephone call or a letter from one's physician, or a policy requiring office staff to double check that they are reporting test results accurately, they are too onerous relative to the human, financial, and public health costs associated with a false negative report. 22 Cf. Reisner v. Regents of the University of California , supra, 31 Cal. App. 4th at 1200 , 37 Cal.Rptr.2d 518 (it is not unreasonable to expect physicians to give additional warning or warnings).

Along these same lines, we note that it would not be unreasonable for a jury to conclude that the defendant, and not the plaintiff or Smith, was most effectively and economically situated to avoid the harm that befell the plaintiff. In this era of technologized medicine, the conveyance of lab results is a regular and central component of a physician's professional duties. The physician has exclusive access to the original lab results, until such time as they are shared with or conveyed to the patient. As between the defendant, on the one hand, who can avoid errors of this sort simply by double checking the results before or after speaking with the patient; see L. Casalino et al., supra, 169 Archives Internal Med. 1123 (discussing "relatively simple" best practices); and Smith and the plaintiff, on the other, who could ensure that the plaintiff remained free of STDs only by permanently abstaining from intimate contact, 23 a jury reasonably could conclude that the defendant was the party who was in the best position to avoid the harm at the lowest cost and, therefore, should bear the costs of the loss. See, e.g., Rodi Yachts, Inc. v. National Marine, Inc. , 984 F.2d 880 , 883-84, 888 (7th Cir. 1993).

At the same time, physicians such as the defendant can most readily bear and spread through malpractice insurance the costs associated with errors of the sort alleged. We are not convinced that such errors are both so prevalent and so ineluctable that imposing third-party liability, solely with respect to identifiable victims, will meaningfully impact insurance rates or overall health care costs. 24 For these reasons, we conclude that the relevant policy considerations weigh heavily in favor of allowing liability under these circumstances.

5

Finally, we address two concerns that the defendant and certain of the amici have raised and that the trial court found compelling. First is the slippery slope issue. The trial court observed, and we agree, that, "[i]n a sense, [the] plaintiff's complaint identifies a best case scenario ...." That is to say, the plaintiff and Smith were involved in an exclusive romantic relationship at the time Smith sought STD testing, Smith informed the defendant that he was seeking testing for the benefit and protection of the plaintiff, and the plaintiff subsequently agreed to engage in sexual relations with Smith in reliance on the test results as reported to Smith. This means that the defendant's potential liability for negligently misreporting Smith's test results extended to at most one nonpatient third party, a party of whose existence the defendant was aware at the time of treatment, who could foreseeably contract a contagious STD if an erroneous negative test result were reported, and to whom he owed no independent duty beyond the duty already owed to Smith to accurately report his test results.

Nevertheless, the trial court expressed concerns that imposing a duty under these limited circumstances could open the floodgates. For example, the court questioned whether, if Smith had been dating multiple women at the time, or later began to date other women, with whom Smith had not discussed STDs, the defendant would owe a duty to a large and ill-defined class of potential plaintiffs. The trial court also questioned whether, under different circumstances, a physician such as the defendant might feel compelled to question a patient regarding his sexual partners, or to contact those partners to discuss the patient's STD status, or at least to ensure that the patient accurately relayed the test results to all of his sexual partners. Finally, the court questioned whether it makes sense to make liability hinge on the sort of mutual STD testing arrangement to which the plaintiff and Smith agreed.

Beginning with the last point, we emphasize that the defendant's liability does not hinge on the fact that Smith and the plaintiff entered into a mutual testing agreement. The alleged fact that Smith sought and obtained STD testing at the time could become relevant at trial only insofar as it would support the plaintiff's theory of causation, that is, that she was free of STDs until she became intimate with Smith during or after July, 2013.

Beyond that, we emphasize that the duty that we recognize today is quite limited. It extends only to identifiable third parties who are engaged in an exclusive romantic relationship with a patient at the time of testing and, therefore, may foreseeably be exposed to any STD that a physician fails to diagnose or properly report. And the physician fully satisfies that third-party duty simply by treating the patient according to the prevailing standard of care and accurately informing the patient of the relevant test results. See, e.g., Reisner v. Regents of the University of California , supra, 31 Cal. App. 4th at 1203 , 37 Cal.Rptr.2d 518 ; Pate v. Threlkel , 661 So. 2d 278 , 281-82 (Fla. 1995) ; Estate of Amos v. Vanderbilt University , supra, 62 S.W.3d at 138 . Whether there are other, broader circumstances under which a physician may be held to owe a duty of care to a nonpatient third party who foreseeably contracts an infectious disease as a result of the physician's negligence is a question that we need not resolve today.

Nor, as we have discussed, are we overly concerned that our recognition of a duty under the specific circumstances of this case will create a flood of litigation, increase insurance costs, or discourage physicians from offering STD testing. See, e.g., Bolieu v. Sisters of Providence in Washington , supra, 953 P.2d at 1239 . The amici supporting the defendant's position have given us no reason to believe that errors of the sort alleged are commonplace or that they cannot readily be avoided by cost-effective quality assurance measures. As the California Court of Appeal explained in rejecting such arguments, "[a]rguments premised on opened floodgates and broken dams are not persuasive [when] ... we suspect that only a few drops of water may spill onto a barren desert." Reisner v. Regents of the University of California , supra, 31 Cal. App. 4th at 1204 , 37 Cal.Rptr.2d 518 . And, of course, if the legislature perceives differently the risk that conferring standing on individuals such as the plaintiff will result in a health care funding crisis, then nothing bars that body from imposing whatever restrictions it deems prudent on common-law actions of this sort. Second, we do not share the trial court's concern that recognizing a third-party cause of action for negligent misreporting of STD test results would be impracticable. The court reasoned that, in many such instances, a patient such as Smith and an alleged victim such as the plaintiff will no longer be romantically involved by the time an action reaches the trial stage and, therefore, that key evidence-the patient's medical records-may not be available. The court noted that federal and state privacy laws could bar a plaintiff from obtaining and presenting such records without the patient's consent and that the patient might have little incentive to disclose such records to a former partner and have his or her medical and sexual history become part of the public record. The court also appeared to suggest that, in cases in which the patient does cooperate with the plaintiff, the patient might agree to selectively provide only those records that supported the plaintiff's case, leaving the physician unable to defend himself or herself.

Although we do not discount the possibility that the concerns that the trial court raises could present logistical hurdles in some other case, those hypothetical challenges do not counsel against allowing the plaintiff to hold the defendant accountable in a case such as this, in which the plaintiff apparently will have full access to the medical records necessary to put on her case. 25 As we noted in Jacoby v. Brinckerhoff , supra, 250 Conn. 86 , 735 A.2d 347 , "evidentiary constraints at trial do not, themselves, affect the sufficiency of a stated cause of action ...." 26 For all of the foregoing reasons, we hold that the trial court incorrectly concluded that, as a matter of law, the defendant owed no duty of care to the plaintiff with respect to the reporting of Smith's STD test results. 27

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion D'AURIA, MULLINS and VERTE-FEUILLE, Js., concurred.

ROBINSON, C.J., with whom McDONALD and KAHN, J., join, dissenting.

I respectfully disagree with the majority's conclusion that Connecticut physicians, with respect to the diagnosis and reporting of their patients' sexually transmitted disease (STD) test results, owe a direct duty of care to "identifiable third parties who are engaged in an exclusive romantic relationship with a patient at the time of testing and, therefore, may foreseeably be exposed to any STD that a physician fails to diagnose or properly report." In my view, the majority's conclusion is inconsistent with our recent decision in Jarmie v. Troncale , 306 Conn. 578 , 590-91, 50 A.3d 802 (2012), in which we deemed three principal considerations to be especially pertinent in determining what, if any, duty of care is owed by a medical professional to a nonpatient third party, specifically (1) Connecticut precedent, (2) the foreseeability of the alleged harm, and (3) public policy considerations. Following Jarmie , I conclude instead that the defendant physician, Charles Cochran, owed no duty to the plaintiff, Jane Doe, and that the trial court properly granted the defendant's motion to strike the plaintiff's single count complaint. Because I would affirm the judgment subsequently rendered by the trial court in favor of the defendant, I respectfully dissent.

I begin by noting my agreement with the majority's recitation of the factual and procedural history of the case. I also note my substantial agreement with the majority's analysis in part I of its opinion, including the standard of review and the treatment of the plaintiff's single count complaint as having alleged both medical malpractice and common-law negligence, similar to our treatment of the action in Jarmie . 1 Id., at 583-86, 50 A.3d 802 . I part ways with the majority at part II of its opinion.

"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.... Contained within the first element, duty, there are two distinct considerations.... First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty.... The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant....

"Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.... Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result ....

"A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed.... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself ... but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Id., at 589-90, 50 A.3d 802 .

In Jarmie , we considered whether to recognize a duty of care owed by a physician to a third party nonpatient. In that case, a patient crashed her vehicle into the plaintiff after blacking out while driving. Id., at 580, 50 A.3d 802 . The plaintiff in Jarmie claimed that the defendant, a physician, had breached a duty to warn the patient of the risks of a latent driving impairment associated with a particular medical condition. Id. In concluding that the physician did not owe a duty of care to a third party nonpatient, this court considered three principal factors: (1) Connecticut precedent, (2) foreseeability, and (3) public policy considerations, including the decisions of courts in other jurisdictions. Id., at 589-91, 50 A.3d 802 .

We began in Jarmie by analyzing Connecticut precedent, and observed that it "is useful to view Connecticut common-law rules defining the duty of health care providers in conjunction with [General Statutes] § 52-190a, the medical malpractice statute, because all of the relevant case law followed enactment of that provision. The statute had several purposes, including: (1) to put some measure of control on what was perceived as a crisis in medical malpractice insurance rates; (2) to discourage frivolous or baseless medical malpractice actions; (3) to reduce the incentive to health care providers to practice unnecessary and costly defensive medicine because of the fear of such actions; (4) to reduce the emotional, reputational and professional toll imposed on health care providers who are made the targets of baseless medical malpractice actions; and (5) the replacement of proportional liability for the preexisting system of joint and several liability as a central part of [tort reform], so as to remove the health care provider as an unduly attractive deep pocket for the collection of all of the plaintiff's damages.... Thus, a principal goal of § 52-190a, and of tort reform generally, was to limit the potential liability of health care providers....

"The common law, reflecting the goals of the tort reform movement and the legislature's purpose in enacting § 52-190a, likewise disfavors the imposition of liability on health care providers. The established rule is that, absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another.... Thus, physicians owe an ordinary duty to their patients not to harm them through negligent conduct and an affirmative duty to help them by providing appropriate care.... There is no well established common-law rule that a physician owes a duty to warn or advise a patient for the benefit of another person." (Citations omitted; internal quotation marks omitted.) Id., at 591-92, 50 A.3d 802 .

"Consistent with the purpose of the medical malpractice statute and the limited duty of health care providers under the common law, this court has exercised restraint when presented with opportunities to extend the duty of health care providers to persons who are not their patients. As a consequence, we have held that a nurse and an emergency medical technician owed no duty of care to a patient's sister, who fainted while observing a medical procedure performed on the patient; Murillo v. Seymour Ambulance Assn., Inc. , [ 264 Conn. 474 , 477-78, 823 A.2d 1202 (2003) ]; a psychiatrist owed no duty to a patient's former spouse for any direct injury to the marriage caused by the allegedly negligent treatment of the patient for marital difficulties; see Jacoby v. Brinckerhoff , 250 Conn. 86 , 88, 95-98, 735 A.2d 347 (1999) ; a psychiatrist who evaluated children for possible sexual abuse owed no duty of reasonable care to protect the children's father, the suspected abuser, from false accusations of abuse arising out of the performance of the evaluations; Zamstein v. Marvasti , 240 Conn. 549 , 550-51, 559-61, 692 A.2d 781 (1997) ; and a physician owed no duty of care to his patient's daughter, who suffered emotional distress as a result of observing the patient's health deteriorate because of the physician's malpractice. Maloney v. Conroy , 208 Conn. 392 , 393, 403, 545 A.2d 1059 (1988). The only time that we have even contemplated enlarging the duty of a health care provider to include a person who is not a patient was when we considered whether a psychotherapist owed a duty to a third party to control an outpatient who was not known to have been dangerous. See Fraser v. United States , [ 236 Conn. 625 , 627-30, 674 A.2d 811 (1996) ]. In that case, we determined that no duty existed in the absence of a showing that the victim was either individually identifiable or, possibly, was either a member of a class of identifiable victims or within the zone of risk to an identifiable victim. Id., at 634, 674 A.2d 811 . Accordingly, although there is no directly comparable Connecticut case law on which to rely, our precedent, in general, does not support extending the duty of care ... because, with one limited exception that does not apply ... we repeatedly have declined, in a variety of situations, to extend the duty of health care providers to persons who are not their patients." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Jarmie v. Troncale , supra, 306 Conn. at 592-93 , 50 A.3d 802 .

Although the precise factual circumstances of this case present an issue of first impression, I conclude that Connecticut precedent, as explained in Jarmie , demonstrates this court's consistent reluctance to extend the legal duties of medical professionals to nonpatient third parties. Indeed, no Connecticut case decided after Jarmie has disturbed the soundness of that assessment. 2 Therefore, Connecticut precedent militates against recognizing a legal duty in the present case. Consistent with Jarmie , I next consider a classic duty analysis focused on the foreseeability of the alleged harm. Id., at 594-98, 113 A.3d 932 . I agree with the majority's observation that Jarmie left open the possibility that a duty may exist in a case where the victim is identifiable, and I also agree with the majority that, construing the complaint in the present case in a light most favorable to sustaining its sufficiency, the plaintiff was identifiable. 3 Whereas the plaintiff in Jarmie was neither an identifiable victim nor a member of an identifiable class of victims as a general motorist who might come in close proximity to a vehicle operated by the patient following her diagnosis; id., at 597-98, 113 A.3d 932 ; the patient in the present case explained to the defendant that he had sought STD testing for the benefit of his new, exclusive girlfriend, the plaintiff, thus making her identifiable to the defendant. Our analysis in Jarmie did not, however, hinge solely on the issue of foreseeability. We noted that "[a] simple conclusion that the harm to the plaintiff was foreseeable ... cannot by itself mandate a determination that a legal duty exists." (Internal quotation marks omitted.) Id., at 590, 113 A.3d 932 . Considerations of foreseeability must be tempered by the reluctance in Connecticut precedent to extend the duties of health care providers to nonpatient third parties and the weight of public policy considerations, which militate against recognizing a duty in the present case.

Our final consideration in Jarmie was whether public policy considerations favored or disfavored recognition of a duty. In addressing public policy concerns, we considered the purposes of tort compensation and "four specific factors to be considered in determining the extent of a legal duty as a matter of public policy.... (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." 4 (Internal quotation marks omitted.) Id., at 603, 50 A.3d 802 .

"[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct .... It is sometimes said that compensation for losses is the primary function of tort law ... [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required.... An equally compelling function of the tort system is the prophylactic factor of preventing future harm .... The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.... [I]mposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy. Before imposing such liability, it is incumbent upon us to consider those risks." (Citations omitted; internal quotation marks omitted.) Id., at 599-600, 50 A.3d 802 .

With regard to the compensation of innocent parties, individuals like the plaintiff in the present case may well be covered by public or private health insurance policies, so it is not necessarily the case that the plaintiff, or others in her position, will be left without compensation. Additionally, as we observed in Jarmie , "to the extent an injured party may not be covered by a ... health insurance policy, the financial cost to victims ... does not necessarily outweigh the impact of the proposed duty on thousands of physician-patient relationships across the state and the potentially high costs associated with increased litigation ...." Id., at 601, 50 A.3d 802 . As for the deterrence of wrongful conduct, if, as the majority concludes, the duty owed to the plaintiff is the same duty owed to the patient-namely, the accurate reporting of STD testing results-then "expanding the liability of health care providers would not reduce the potential for harm because health care providers would be required to do no more than they already must do to fulfill their duty to patients." Id., at 601-602, 50 A.3d 802 . Finally, the same concerns we voiced in Jarmie concerning interference with the physician-patient relationship and an increase in litigation are present in this case, and are discussed more fully subsequently in this dissenting opinion.

I now move to the four specific factors discussed in Jarmie . "Starting with the expectations of the parties, long established common-law principles hold that physicians owe a duty to their patients because of their special relationship, not to third persons with whom they have no relationship. Furthermore, there is no state statute or regulation that imposes a duty on health care providers to warn a patient for the benefit of the public." Id., at 603-604, 50 A.3d 802 . It is unlikely that a person harmed in the manner that this plaintiff was harmed would expect to be compensated by the physician, with whom he or she has no special relationship, in light of the privileged status of the physician-patient relationship and the common-law protections granted to physicians. Consequently, the normal expectations of the parties weigh against recognition of a duty in the present case, as they did in Jarmie .

Turning to the public policy of encouraging participation in the activity under review, recognizing a duty of care under the circumstances of this case "would be inconsistent with the physician's duty of loyalty to the patient, would threaten the inherent confidentiality of the physician-patient relationship and would impermissibly intrude on the physician's professional judgment regarding treatment and care of the patient." Id., at 606, 50 A.3d 802 . Indeed, "[u]nlike most duties, the physician's duty to the patient is explicitly relational: physicians owe a duty of care to patients .... Mindful of this principle, we have recognized on more than one occasion the physician's duty of undivided loyalty to the patient ... and the patient's corresponding loyalty, trust and dependence on the professional opinions and advice of the physician.... Undivided loyalty means that the patient's well-being must be of paramount importance in the mind of the physician. Indeed, this is the foundation for the patient's reciprocal loyalty, trust and dependence on the physician's medical treatment and advice. Consistent with this view, we have stated that, [a]s a matter of public policy ... the law should encourage medical care providers ... to devote their efforts to their patients ... and not be obligated to divert their attention to the possible consequences to [third parties] of medical treatment of the patient.... It is ... the consequences to the patient, and not to other persons, of deviations from the appropriate standard of medical care that should be the central concern of medical practitioners....

"Extending a health care provider's duty also would threaten the confidentiality inherent in the physician-patient relationship because lawsuits alleging a breach of the duty would compel the use of confidential patient records by defending physicians. The principle of confidentiality lies at the heart of the physician-patient relationship and has been recognized by our legislature. General Statutes § 52-146o was enacted in 1990; see Public Acts 1990, No. 90-177; to address the need to protect the confidentiality of communications in order to foster the free exchange of information from patient to physician .... The statute provides that a health care provider shall not disclose patient information in their files without the patient's explicit consent. See General Statutes § 52-146o (a). Thus, when a patient decides to bring a claim against a health care provider, the patient makes a purposeful decision to waive confidentiality.... Subsection (b) (2) of § 52-146o, however, contains an exception whereby patient consent is not required for the disclosure of communications or records by a health care provider against whom a claim has been made. Consequently, if [an injured third party] files an action against the health care provider of [a patient], records containing the patient's medical history will very likely be disclosed in court and subjected to public scrutiny. The effect of expanding the duty of a health care provider in this fashion cannot be underestimated. Physician-patient confidentiality is described as a privilege .... When that confidentiality is diminished to any degree, it necessarily affects the ability of the parties to communicate, which in turn affects the ability of the physician to render proper medical care and advice. Accordingly, it is not in the public interest to extend the duty of health care providers to third persons in the present context because doing so would jeopardize the confidentiality of the physician-patient relationship." 5 (Citations omitted; emphasis altered; footnote omitted; internal quotation marks omitted.) Jarmie v. Troncale , supra, 306 Conn. at 606-609 , 50 A.3d 802 .

Connecticut state law reflects additional patient confidentiality concerns that militate against the recognition of a duty in the present case. State law demonstrates the overarching primacy of patient confidentiality, even in this context of infectious disease. 6 Connecticut has a communicable disease reporting system and a list of specific diseases and conditions that physicians are required to report to public health officials. See Regs., Conn. State Agencies § 19a-36-A2 (requiring Commissioner of Public Health to issue list of reportable diseases); see also Connecticut Department of Public Health, "Reportable Diseases, Emergency Illnesses and Health Conditions, and Reportable Laboratory Findings Changes for 2019," 39 Conn. Epidemiologist 1 (2019) (list of reportable diseases). The reporting is made by physicians to the public health authority, but it is government officials who may act on the information and intervene with any third parties, not the reporting physician. See General Statutes § 19a-215 (d). Put differently, the physician has no statutory duty vis-à-vis any third party beyond merely reporting the disease or condition to the appropriate authority.

Another instructive example of the legislature's concern for confidentiality can be seen in Connecticut's HIV laws, upon which the majority relies for the proposition that physicians' public health obligations may transcend their duties to individual patients, observing that the state "permit[s] physicians to warn, or to disclose confidential patient information for the purpose of warning, a known partner of a patient who has been diagnosed with an HIV infection or related disease." The HIV statute is protective of confidentiality insofar as it does not permit a physician to directly inform a sexual partner about a patient's HIV test results under circumstances similar to this case. See General Statutes § 19a-584 (b) (physician may only directly inform known partner if both partner and patient are under physician's care or if patient has requested it). Although the majority's opinion does not impose a duty to warn on physicians under the circumstances of this case, the overarching emphasis placed on confidentiality by the legislature, including the legislature's decision not to impose further statutory duties on physicians to warn under similar circumstances, coupled with the threat that confidential records may be disclosed in litigation without the patient's consent, suggest that imposition of a duty under the circumstances of this case is incongruous with the legislature's repeated emphasis on patient confidentiality. Put plainly, recognizing a duty under the circumstances of this case endangers participation in the activity under review because it interferes with physicians' duty of loyalty to their patients and threatens the sanctity of physician-patient confidentiality.

Moving to the avoidance of the increased risk of litigation, the Department of Public Health has published STD reporting statistics for 2015 that indicate approximately 13,269 reported cases of Chlamydia, 2,092 reported cases of Gonorrhea, and 99 reported cases of Syphilis that year. Connecticut Department of Public Health, "Chlamydia, Gonorrhea, and Primary and Secondary Syphilis Cases Reported by Town," (2015), available at https://portal.ct.gov/-/media/Departments-and-Agencies/DPH/dph/infectious_diseases/std/Table12015pdf (last visited July 11, 2019). Assuming that each of those individuals was in an exclusive sexual relationship, there would have been 15,460 additional individuals to whom physicians may have owed a duty under the majority's opinion in the present case. This increase in the risk of litigation threatens more than just the pocketbooks of physicians and their insurers;

it threatens patient care. A likely consequence of this expansion of liability is that physicians will be reticent to discuss their patients' romantic relationships or sexual behavior in an attempt to avoid identifying third parties to whom the physician could be liable, despite such an approach not necessarily being in the patient's best interests. This reaction, referred to as "defensive medicine" in medical literature, involves physicians altering treatment and advice as part of an effort to avoid liability, and it is considered to have very negative and costly effects on the provision of health care. See J. Greenberg & J. Green, "Over-testing: Why More Is Not Better," 127 Am. J. Med. 362, 362-63 (2014); M. Mello et al., "National Costs of the Medical Liability System," 29 Health Aff. 1569, 1572 (2010); see also B. Nahed et al., "Malpractice Liability and Defensive Medicine: A National Survey of Neurosurgeons," (2012), p. 4, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3382203/pdf/pone.0039237.pdf (last visited July 11, 2019).

An additional concern is the effect that an expansion of the potential liability of physicians is likely to have on malpractice insurance rates. Connecticut health care professionals cannot obtain a license to practice medicine without showing that they have adequate malpractice insurance. See General Statutes § 20-11b (a). If insurance premiums for physicians increase to an unaffordable level, physicians may leave the practice of medicine or, at the least, stop offering the services that instigate such high premiums. An instructive example of this concern is the early 2000s crisis in the field of obstetrics. "Soaring malpractice insurance costs led to the closings of trauma and maternity wards across the country [and] forced many obstetricians to give up obstetrics, restrict services, deny certain high-risk patients, become consultants, relocate, retire early, or abandon their practices all together." (Footnote omitted.)

S. Domin, " Where Have All the Baby-Doctors Gone? Women's Access to Healthcare in Jeopardy: Obstetrics and the Medical Malpractice Insurance Crisis," 53 Cath. U. L. Rev. 499 , 499-500 (2004). The threat of something similar happening in Connecticut requires that we exercise caution, particularly in an area where the potential consequences are such that the legislature is in a better position to address these concerns than our courts are.

Indeed, this is an issue on which the legislature has previously acted. As we observed in Jarmie , part of the impetus behind the enactment of our medical malpractice statute, § 52-190a, was "to put some measure of control on what was perceived as a crisis in medical malpractice insurance rates." (Internal quotation marks omitted.) Jarmie v. Troncale , supra, 306 Conn. at 591 , 50 A.3d 802 . One such measure of control, the requirement that an opinion letter issued by a similar health care provider be attached to a medical negligence complaint, was suggested by the General Assembly's Legislative Program Review and Investigations Committee after it conducted hearings following a significant increase in medical malpractice insurance rates in the early 2000s. See Legislative Program Review and Investigations Committee, Connecticut General Assembly, Medical Malpractice Insurance Rates (December 2003). Because the majority's opinion recognizes a duty to potentially thousands of new plaintiffs, which is very likely to have an impact on medical malpractice rates, this court should not throw caution to the wind and take such action when the legislature is in a much better position to investigate the issue, and make findings and recommendations on the subject, as it has done in similar circumstances.

Given that the legislature has acted extensively in the areas of both STD reporting and to provide physicians relief from professional liability, I am hesitant to usurp its "primary responsibility for formulating public policy" by recognizing a new duty to third party nonpatients. (Internal quotation marks omitted.) Mayer v. Historic District Commission , 325 Conn. 765 , 780, 160 A.3d 333 (2017). Indeed, in Sic v. Nunan , 307 Conn. 399 , 410, 54 A.3d 553 (2012), this court recognized that primary responsibility for public policy in declining to impose a duty on motorists stopped at an intersection to keep their wheels pointed straight, emphasizing that the legislature had "not seen fit to enact any statutes" in that respect. Thus, I disagree with the majority's decision to adopt a duty in the present case that will expand the pool of potential litigants, increase the risk of litigation, and threaten access to and the quality of patient care in this state-in contravention of legislative action on point.

Finally, turning to decisions of other jurisdictions, I note that there is no clear trend in our sister courts that supports usurping the legislature's responsibility for public policy and creating the duty that the majority recognizes in the present case. To be sure, there is case law that supports the decision of the majority. See Reisner v. Regents of the University of California , 31 Cal. App. 4th 1195 , 1197-201, 37 Cal. Rptr. 2d 518 (1995) (physician owed duty to unknown and unidentifiable sexual partner of patient to warn patient or her parents of patient's HIV positive status), review denied, California Supreme Court, Docket No. S045274 (May 18, 1995); C.W. v. Cooper Health System , 388 N.J. Super. 42 , 58-62, 906 A.2d 440 (App. Div. 2006) (hospital and its physicians owed direct duty to unknown and unidentifiable sexual partner of patient to warn patient of patient's HIV positive status); DiMarco v. Lynch Homes-Chester County, Inc. , 525 Pa. 558 , 563-64, 583 A.2d 422 (1990) (physicians owed duty to sexual partner of patient with hepatitis not to give erroneous advice to patient because class of foreseeable victims included anyone who was intimate with patient); 7 Estate of Amos v. Vanderbilt University , 62 S.W.3d 133 , 138 (Tenn. 2001) (university medical center owed duty to future husband and future daughter of HIV positive patient to warn patient so she might take precautionary measures preventing transmission of HIV because future husband and future daughter were within class of identifiable persons within zone of danger). I find, however, that sister state cases declining to recognize a third party duty for physicians are more consistent with our state's public policy and precedent. See, e.g., Hawkins v. Pizarro , 713 So. 2d 1036 , 1037-38 (Fla. App.) (physician owed no duty to future spouse of patient when physician improperly advised patient she tested negative for hepatitis C ), review denied, 728 So. 2d 202 (Fla. 1998) ; Dehn v. Edgecombe , 384 Md. 606 , 622, 865 A.2d 603 (2005) (physician owed no duty to wife of patient when physician negligently failed to provide patient with minimally acceptable medical care in connection with a vasectomy ); Herrgesell v. Genesee Hospital , 45 App. Div. 3d 1488 , 1490, 846 N.Y.S.2d 523 (2007) (physician owed no duty to daughter of patient when daughter contracted hepatitis B from patient because physician does not owe duty to nonpatient who contracts illness from patient, even if physician knows nonpatient cares for patient or is family member of patient); Candelario v. Teperman , 15 App. Div. 3d 204 , 204-205, 789 N.Y.S.2d 133 (2005) (physician owed no duty to daughter of patient when daughter contracted hepatitis C, even though physician was aware daughter was caring for patient); D'Amico v. Delliquadri , 114 Ohio App. 3d 579 , 581-83, 683 N.E.2d 814 (1996) (physician owed no duty to girlfriend of patient when girlfriend contracted genital warts from patient after defendant cared for and treated patient). Consequently, the decisions of our sister courts demonstrate no clear trend on the broader recognition and extent of physicians' third party duties, let alone the specific duty that the majority recognizes in the present case. 8

Accordingly, I conclude, consistent with Jarmie v. Troncale , supra, 306 Conn. 578 , 50 A.3d 802 , that the defendant did not owe the plaintiff, who was not his patient, a duty of care in the present case. Given the potential ramifications of recognizing such an expanded duty of care, I would leave that potential expansion of liability to the legislature-which is better equipped than this court to make the public policy findings attendant to that expansion of liability. 9 See, e.g., State v. Lockhart , 298 Conn. 537 , 574-75, 4 A.3d 1176 (2010) (declining to require recording of custodial interrogations and deferring to legislature because "it is in a better position to evaluate the competing policy interests at play in developing a recording requirement in that it can invite comment from law enforcement agencies, prosecutors and defense attorneys regarding the relevant policy considerations and the practical challenges of implementing a recording mandate"). Accordingly, I conclude that the trial court properly granted the defendant's motion to strike.

Because I would affirm the judgment of the trial court, I respectfully dissent.

PRICE, Judge:

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

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

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

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

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

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

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

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

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

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

Order affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

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

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

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

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.

*287OPINION

FELDMAN, Justice.

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

FACTS AND PROCEDURAL HISTORY

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

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

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

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

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

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

RAJI (Civil) 2d Negligence 6.

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

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

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

DISCUSSION

A. The sudden emergency doctrine

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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