TOBRINER, J.

          That the courts should allow recovery to a mother who suffers emotional trauma and physical injury from witnessing the infliction of death or injury to her child for which the tortfeasor is liable in negligence would appear to be a compelling proposition. As Prosser points out, "All ordinary human feelings are in favor of her [the mother's] action against the negligent defendant. If a duty to her requires that she herself be in some recognizable danger, then it has properly been said that when a child is endangered, it is not beyond contemplation that its mother will be somewhere in the vicinity, and will suffer serious shock." (Prosser, Law of Torts (3d ed. 1964) p. 353.)

          Nevertheless, past American decisions have barred the mother's recovery. Refusing the mother the right to take her case to the jury, these courts ground their position on an alleged absence of a required "duty" of due care of the tortfeasor to the mother. Duty, in turn, they state, must express public policy; the imposition of duty here would work disaster because it would invite fraudulent claims and it would involve the courts in the hopeless task of defining the extent of the tortfeasor's liability. In substance, they say, definition of liability being impossible, denial of liability is the only realistic alternative.

          We have concluded that neither of the feared dangers 731*731 excuses the frustration of the natural justice upon which the mother's claim rests. We shall point out that in the past we have rejected the argument that we should deny recovery upon a legitimate claim because other fraudulent ones may be urged. We shall further explain that the alleged inability to fix definitions for recovery on the different facts of future cases does not justify the denial of recovery on the specific facts of the instant case; in any event, proper guidelines can indicate the extent of liability for such future cases.

          In the instant case plaintiff's [fn. 1] first cause of action alleged that on or about September 27, 1964, defendant drove his automobile in a southerly direction on Bluegrass Road near its intersection with Clover Lane in the County of Sacramento, and at that time plaintiff's infant daughter, Erin Lee Dillon, lawfully crossed Bluegrass Road. The complaint further alleged that defendant's negligent operation of his vehicle caused it to "collide with the deceased Erin Lee Dillon resulting in injuries to decedent which proximately resulted in her death." (Complaint, p. 3.)plaintiff, as the mother of the decedent, brought an action for compensation for the loss.

          Plaintiff's second cause of action alleged that she, Margery M. Dillon, "was in close proximity to the ... collision and personally witnessed said collision." She further alleged that "because of the negligence of defendants ... and as a proximate cause [sic] thereof plaintiff ... sustained great emotional disturbance and shock and injury to her nervous system" which caused her great physical and mental pain and suffering.

          Plaintiff's third cause of action alleged that Cheryl Dillon, another infant daughter, was "in close proximity to the ... collision and personally witnessed said collision." Because of the negligence, Cheryl Dillon "sustained great emotional disturbance and shock and injury to her nervous system" which caused her great physical and mental pain and suffering.

          On December 22, 1965, defendant, after he had filed his answer, moved for judgment on the pleadings, contending that "No cause of action is stated in that allegation that plaintiff sustained emotional distress, fright or shock induced by apprehension of negligently caused danger or injury or the witnessing of negligently caused injury to a third person. 732*732 Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295 [29 Cal.Rptr. 33, 379 P.2d 513] (1963). Even where a child, sister or spouse is the object of the plaintiff's apprehension no cause of action is stated, supra, p. 303, unless the complaint alleges that the plaintiff suffered emotional distress, fright or shock as a result of fear for his own safety. Reed v. Moore, 156 Cal.App.2d 43 (1957) at page 45 [319 P.2d 80]." (Italics added.) The court granted a judgment on the pleadings against the mother's count, the second cause of action, and denied it as to the sister's count, the third cause of action. The court, further, dismissed the second cause of action. Margery M. Dillon, the mother, appealed from that judgment.

          Thereafter, on January 26, further proceedings took place as to the third cause of action, Cheryl Dillon's claim for emotional trauma from witnessing her sister's death while "watching her sister lawfully cross Bluegrass Road."

          Defendant moved for summary judgment on this count. In opposition plaintiff contended that the declaration of one McKinley disclosed that Mrs. Dillon testified at her deposition that when she saw the car rolling over Erin she noted that Cheryl was on the curb, but that the deposition of Cheryl Dillon contradicts such statements.plaintiff therefore submitted that "Since the declarations filed by defendant are contradictory and the testimony contained in the testimony of Mrs. Dillon does not establish as a matter of law that Cheryl Dillon was not in the zone of danger or had fear for her own safety, plaintiff respectfully submits that the motion must be denied."

          The court denied the motion for summary judgment on the third cause as to Cheryl on the ground that the pretrial order precluded it. The trial court apparently sustained the motion for judgment on the pleadings on the second cause as to the mother because she was not within the zone of danger and denied that motion as to the third cause involving Cheryl because of the possibility that she was within such zone of danger or feared for her own safety. Thus we have before us a case that dramatically illustrates the difference in result flowing from the alleged requirement that a plaintiff cannot recover for emotional trauma in witnessing the death of a child or sister unless she also feared for her own safety because she was actually within the zone of physical impact.

          The posture of this case differs from that of Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 298 [29 Cal.Rptr. 33, 379 P.2d 513], which involved "fright or nervous 733*733 shock (with consequent bodily illness) induced solely by ... apprehension of negligently caused danger or injury to a third person" because the complaint here presents the claim of the emotionally traumatized mother, who admittedly was not within the zone of danger, as contrasted with that of the sister, who may have been within it. The case thus illustrates the fallacy of the rule that would deny recovery in the one situation and grant it in the other. In the first place, we can hardly justify relief to the sister for trauma which she suffered upon apprehension of the child's death and yet deny it to the mother merely because of a happenstance that the sister was some few yards closer to the accident. The instant case exposes the hopeless artificiality of the zone- of-danger rule. In the second place, to rest upon the zone-of-danger rule when we have rejected the impact rule becomes even less defensible. We have, indeed, held that impact is not necessary for recovery (Cook v. Maier (1939) 33 Cal.App.2d 581, 584 [92 P.2d 434]). The zone-of-danger concept must, then, inevitably collapse because the only reason for the requirement of presence in that zone lies in the fact that one within it will fear the danger of impact. At the threshold, then, we point to the incongruity of the rules upon which any rejection of plaintiff's recovery must rest.

          [1] We further note, at the outset, that defendant has interposed the defense that the contributory negligence of the mother, the sister, and the child contributed to the accident. If any such defense is sustained and defendant found not liable for the death of the child because of the contributory negligence of the mother, sister or child, we do not believe that the mother or sister should recover for the emotional trauma which they allegedly suffered. In the absence of the primary liability of the tortfeasor for the death of the child, we see no ground for an independent and secondary liability for claims for injuries by third parties. [2a] The basis for such claims must be the adjudicated liability and fault of defendant; that liability and fault must be the foundation for the tortfeasor's duty of due care to third parties who, as a consequence of such negligence, sustain emotional trauma.

          We turn then to an analysis of the concept of duty, which, as we have stated, has furnished the ground for the rejection of such claims as the instant one. Normally the simple facts of plaintiff's complaint would establish a cause of action: the complaint alleges that defendant drove his car (1) negligently, as a (2) proximate result of which plaintiff suffered 734*734 (3) physical injury.proof of these facts to a jury leads to recovery in damages; indeed, such a showing represents a classic example of the type of accident with which the law of negligence has been designed to deal.

          The assertion that liability must nevertheless be denied because defendant bears no "duty" to plaintiff "begs the essential question--whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. ... It [duty] is a shorthand statement of a conclusion, rather than an aid to analysis in itself. ... But it should be recognized that 'duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Prosser, Law of Torts, supra, at pp. 332-333.)

          The history of the concept of duty in itself discloses that it is not an old and deep-rooted doctrine but a legal device of the latter half of the nineteenth century designed to curtail the feared propensities of juries toward liberal awards. "It must not be forgotten that 'duty' got into our law for the very purpose of combatting what was then feared to be a dangerous delusion (perhaps especially prevalent among juries imbued with popular notions of fairness untempered by paramount judicial policy), viz., that the law might countenance legal redress for all foreseeable harm." (Fleming, An Introduction to the Law of Torts (1967) p. 47.)

          Indeed, the idea of court-imposed restrictions on recovery by means of the concept of "duty" contrasted dramatically with the preceding legal system of feudal society. [fn. 2] In the enclosed feudal society, the actor bore responsibility for any damage he inflicted without regard to whether he was at fault or owed a "duty" to the injured person. Thus, at that time, the defendant owed a duty to all the world to conduct himself 735*735 without causing injury to his fellows. It may well be that the physical contraction of the feudal society imposed an imperative for maximum procurable safety and a corresponding absolute responsibility upon its members.

          The Industrial Revolution, which cracked the solidity of the feudal society and opened up wide and new areas of expansion, changed the legal concepts. Just as the new competitiveness in the economic sphere figuratively broke out of the walls of the feudal community, so it broke through the rule of strict liability. In the place of strict liability it introduced the theory that an action for negligence would lie only if the defendant breached a duty which he owed to plaintiff. As Lord Esher said in Le Lievre v. Gould (1893) 1 Q.B. 491, 497: "A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them."

          We have pointed out that this late 19th century concept of duty, as applied to the instant situation, has led the courts to deny liability. We have noted that this negation of duty emanates from the twin fears that courts will be flooded with an onslaught of (1) fraudulent and (2) indefinable claims. We shall point out why we think neither fear justified.

          1. This court in the past has rejected the argument that we must deny recovery upon a legitimate claim because other fraudulent ones may be urged.

          The denial of "duty" in the instant situation rests upon the prime hypothesis that allowance of such an action would lead to successful assertion of fraudulent claims. (See, e.g., Waube v. Warrington (1935) 216 Wis. 603, 613 [258 N.W. 497].) The rationale apparently assumes that juries, confronted by irreconcilable expert medical testimony, will be unable to distinguish the deceitful from the bona fide. The argument concludes that only a per se rule denying the entire class of claims that potentially raises this administrative problem [fn. 3] can avoid this danger.

          In the first instance, the argument proceeds from a doubtful factual assumption. Whatever the possibilities of fraudulent claims of physical injury by disinterested spectators of an accident, a question not in issue in this case, we certainly 736*736 cannot doubt that a mother who sees her child killed will suffer physical injury from shock. "It seems sufficiently obvious that the shock of a mother at danger or harm to her child may be both a real and a serious injury." (Prosser, Law of Torts, supra, at p. 353.)

          Over a half-century ago this court recognized the likelihood that such fright and fear would cause physical injury. In Sloane v. Southern California Ry. Co. (1896) 111 Cal. 668, 680 [44 P. 320, 32 L.R.A. 193], we affirmed a judgment for damages for a plaintiff who alleged physical injury resulting from mental suffering, saying: "It is a matter of general knowledge that an attack of sudden fright or an exposure to imminent peril has produced in individuals a complete change in their nervous system, and rendered one who was physically strong and vigorous weak and timid." Since no one can seriously question that fear or grief for one's child is as likely to cause physical injury as concern over one's own well-being, rejection of the fraudulent claims contention in Sloane clearly applies here.

          [3a] In the second instance, and more fundamentally, the possibility that fraudulent assertions may prompt recovery in isolated cases does not justify a wholesale rejection of the entire class of claims in which that potentiality arises. The "contention that the rule permitting the maintenance of the action would be impractical to administer ... is but an argument that the courts are incapable of performing their appointed tasks, a premise which has frequently been rejected." (Emden v. Vitz (1948) 88 Cal.App.2d 313, 319 [198 P.2d 696].) "[F]ear that unfounded claims may be put forward, and may result in erroneous conclusions of fact, ought not to influence us to impose legal limitations as to the nature of the facts that it is permissible to prove." (Owens v. Liverpool Corp. (1939) 1 K.B. 394, 400.) "Certainly it is a very questionable position for a court to take, that because of the possibility of encouraging fictitious claims compensation should be denied those who have actually suffered serious injury through the negligence of another." (Orlo v. Connecticut Co. (1941) 128 Conn. 231, 239 [21 A.2d 402]. See also Goodhart, The Shock Cases and Area of Risk (1953) 16 Modern L.Rev. 14, 23; Throckmorton, Damages for Fright (1921) 34 Harv.L.Rev. 260, 276.)

          On the analogous issue of whether the possibility of collusive fraud in intrafamily tort actions justified a per se rule denying recovery in all such cases, this court held that the 737*737 interests of meritorious plaintiffs should prevail over alleged administrative difficulties. Upholding the claim of a minor child in that situation we said: "The interest of the child in freedom from personal injury caused by the tortious conduct of others is sufficient to outweigh any danger of fraud or collusion. ... [T]he fact that there may be greater opportunity for fraud or collusion in one class of cases than another does not warrant courts of law in closing the door to all cases of that class. Courts must depend upon the efficacy of the judicial processes to ferret out the meritorious from the fraudulent in particular cases." (Emery v. Emery (1955) 45 Cal.2d 421, 431 [289 P.2d 218]; see also Klein v. Klein, (1962) 58 Cal.2d 692, 695-696 [26 Cal.Rptr. 102, 376 P.2d 70].)

          The possibility that some fraud will escape detection does not justify an abdication of the judicial responsibility to award damages for sound claims: if it is "to be conceded that our procedural system for the ascertainment of truth is inadequate to defeat fraudulent claims ..., the result is a virtual acknowledgment that the courts are unable to render justice in respect to them." (Chiuchiolo v. New England Wholesale Tailors (1930) 84 N.H. 329, 335 [150 A. 540].)

          Indubitably juries and trial courts, constantly called upon to distinguish the frivolous from the substantial and the fraudulent from the meritorious, reach some erroneous results. But such fallibility, inherent in the judicial process, offers no reason for substituting for the case-by-case resolution of causes an artificial and indefensible barrier. Courts not only compromise their basic responsibility to decide the merits of each case individually but destroy the public's confidence in them by using the broad broom of "administrative convenience" to sweep away a class of claims a number of which are admittedly meritorious. The mere assertion that fraud is possible, "a possibility [that] exists to some degree in all cases" (Klein v. Klein, supra, 58 Cal.2d 692, 695), does not prove a present necessity to abandon the neutral principles of foreseeability, proximate cause and consequential injury that generally govern tort law.

          Indeed, we doubt that the problem of the fraudulent claim is substantially more pronounced in the case of a mother claiming physical injury resulting from seeing her child killed than in other areas of tort law in which the right to recover damages is well established in California. For example, 738*738 a plaintiff claiming that fear for his own safety resulted in physical injury makes out a well recognized case for recovery. [fn. 4] (Lindley v. Knowlton (1918) 179 Cal. 298 [176 P. 440]; Webb v. Francis J. Lewald Coal Co. (1931) 214 Cal. 182 [4 P.2d 532, 77 A.L.R. 675]; Vanoni v. Western Airlines (1967) 247 Cal.App.2d 793 [56 Cal.Rptr. 115].) Moreover, damages are allowed for "mental suffering," a type of injury, on the whole, less amenable to objective proof than the physical injury involved here; the mental injury can be in aggravation of, or "parasitic to," an established tort. (Sloane v. Southern California Ry. Co., supra, 111 Cal. 668; Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328 [5 Cal.Rptr. 686, 353 P.2d 294]; Easton v. United Trade School Contracting Co. (1916) 173 Cal. 199 [159 P. 597, L.R.A. 1916A 394].) In fact, fear for another, even in the absence of resulting physical injury, can be part of these parasitic damages. (Acadia, California, Ltd. v. Herbert, supra, 54 Cal.2d 328, 337; Easton v. United Trade School Contracting Co., supra, 173 Cal. 199, 202.) And emotional distress, if inflicted intentionally, constitutes an independent tort. (State Rubbish Collectors Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338 [240 P.2d 282].) The danger of plaintiffs' fraudulent collection of damages for nonexistent injury is at least as great in these examples as in the instant case.

          In sum, the application of tort law can never be a matter of mathematical precision. In terms of characterizing conduct as tortious and matching a money award to the injury suffered as well as in fixing the extent of injury, the process cannot be perfect. Undoubtedly, ever since the ancient case of the tavern-keeper's wife who successfully avoided the hatchet cast by an 739*739 irate customer (I de S et ux v. W de S, Y.B. 22 Edw. iii, f. 99, pl. 60 (1348)), defendants have argued that plaintiffs' claims of injury from emotional trauma might well be fraudulent. Yet we cannot let the difficulties of adjudication frustrate the principle that there be a remedy for every substantial wrong.

          2. The alleged inability to fix definitions for recovery on the different facts of future cases does not justify the denial of recovery on the specific facts of the instant case; in any event, proper guidelines can indicate the extent of liability for such future cases.

          [4] In order to limit the otherwise potentially infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.

          [5] In the absence of "overriding policy considerations ... foreseeability of risk [is] of ... primary importance in establishing the element of duty." (Grafton v. Mollica (1965) 231 Cal.App.2d 860, 865 [42 Cal.Rptr. 306]. See also McEvoy v. American Pool Corp. (1948) 32 Cal.2d 295 [195 P.2d 783]; Hergenrether v. East (1964) 61 Cal.2d 440 [39 Cal.Rptr. 4, 393 P.2d 164].) As a classic opinion states: "The risk reasonably to be perceived defines the duty to be obeyed." (Palsgraf v. Long Island R.R. Co. (1928) 248 N.Y. 339, 344 [162 N.E. 99, 59 A.L.R. 253].) Defendant owes a duty, in the sense of a potential liability for damages, only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous, and hence negligent, in the first instance. (See Keeton, Legal Cause in the Law of Torts (1963) 18-20; Seavey, Mr. Justice Cardozo and the Law of Torts (1939) 52 Harv.L.Rev. 372; Seavey, Principles of Torts (1942) 56 Harv.L.Rev. 72.)

          Harper and James state the prevailing view. The obligation turns on whether "the offending conduct foreseeably involved unreasonably great risk of harm to the interests of someone other than the actor. ... [T]he obligation to refrain from ... particular conduct is owed only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. Duty, in other words, is measured by the scope of the risk which negligent conduct foreseeably entails." (2 Harper & James, The Law of Torts, supra, at p. 1018; fns. omitted.)

          [6a] This foreseeable risk may be of two types. The first class involves actual physical impact. A second type of risk 740*740 applies to the instant situation. "In other cases, however, plaintiff is outside the zone of physical risk (or there is no risk of physical impact at all), but bodily injury or sickness is brought on by emotional disturbance which in turn is caused by defendant's conduct. Under general principles recovery should be had in such a case if defendant should foresee fright or shock severe enough to cause substantial injury in a person normally constituted. Plaintiff would then be within the zone of risk in very much the same way as are plaintiffs to whom danger is extended by acts of third persons, or forces of nature, or their own responses (where these things are foreseeable)." (2 Harper & James, The Law of Torts, supra, at pp. 1035-1036; fns. omitted.) [fn. 5]

          Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis. We cannot now predetermine defendant's obligation in every situation by a fixed category; no immutable rule can establish the extent of that obligation for every circumstance of the future. We can, however, define guidelines which will aid in the resolution of such an issue as the instant one.

          [7] We note, first, that we deal here with a case in which plaintiff suffered a shock which resulted in physical injury and we confine our ruling to that case. In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, 741*741 as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

          The evaluation of these factors will indicate the degree of the defendant's foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case.

          In light of these factors the court will determine whether the accident and harm was reasonably foreseeable. [6b] Such reasonable foreseeability does not turn on whether the particular plaintiff as an individual would have in actuality foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected.

          [8] In the instant case, the presence of all the above factors indicates that plaintiff has alleged a sufficient prima facie case. Surely the negligent driver who causes the death of a young child may reasonably expect that the mother will not be far distant and will upon witnessing the accident suffer emotional trauma. As Dean Prosser has stated: "when a child is endangered, it is not beyond contemplation that its mother will be somewhere in the vicinity, and will suffer serious shock." (Prosser, The Law of Torts, supra, at p. 353. See also 2 Harper & James, The Law of Torts, supra, at p. 1039.)

          We are not now called upon to decide whether, in the absence or reduced weight of some of the above factors, we would conclude that the accident and injury were not reasonably foreseeable and that therefore defendant owed no duty of due care to plaintiff. In future cases the courts will draw lines of demarcation upon facts more subtle than the compelling ones alleged in the complaint before us. 742*742

          The courts have in the past, in analogous situations, drawn the limits of liability, applying general guidelines such as those above set forth to the specific facts of the cases. As examples of that process of definition we set forth the history of the "open car" cases, the rulings on recovery by persons not in privity of contract for defendant's negligence in drafting instruments, the decisions on the intentional infliction of emotional injury, the modern English cases, and some illustrative opinions that adjudicate the specific issue before us.

          The ability of courts to limit liability predicated on tests largely based upon foreseeability is well illustrated by the "open car" cases. The prototype case is the suit against the owner of a vehicle for damage caused plaintiff by a third party who can commandeer the vehicle because of the owner's carelessness in leaving the keys inside. In Richardson v. Ham (1955) 44 Cal.2d 772 [285 P.2d 269], we posited liability on the owner of a bulldozer because of a "foreseeable risk of intermeddling" (p. 776), noting especially the great danger the bulldozer created and the special temptation it presented to third parties. Similarly, in Hergenrether v. East, supra, 61 Cal.2d 440, we upheld such liability of a truck owner on the basis of "greater potentiality of foreseeable risk" (p. 444) because of the possible danger of the vehicle, the time for which it was unattended, and the type of persons who frequent the neighborhood in which it was left.

          These decisions have not led to untrammeled liability. Rather, applying the foreseeability test, the courts have held that the mere act of leaving a key in an automobile, although it may possibly raise a foreseeable risk that the car will be stolen, does not increase the risk of injury to other property and hence does not warrant liability: "[e]ven if she could have foreseen the theft, she had no reason to believe that the thief would be an incompetent driver." (Richards v. Stanley (1954) 43 Cal.2d 60, 66 [271 P.2d 23].) In short, "each case must be considered on its own facts to determine whether the [situation] in toto justifies the conclusion that the foreseeable risk of harm imposed is unreasonable, and that the defendant owner or one in charge of a vehicle has a duty to third persons in the class of the plaintiffs to refrain from subjecting them to such risk." (Hergenrether v. East, supra, 61 Cal.2d 440, 445; see also England v. Mapes Produce Co. (1965) 238 Cal.App.2d 120 [47 Cal.Rptr. 506]; Murray v. Wright (1958) 166 Cal.App.2d 589 [333 P.2d 111].)

          In another category of cases, those involving the liability of a tortfeasor to a third person with whom he was not in privity 743*743 of contract for negligent draftmanship of a legal document, we have recognized the right of the injured party to compensation and set out guidelines for the determination of future cases. In Lucas v. Hamm (1961) 56 Cal.2d 583, 588 [15 Cal.Rptr. 821, 364 P.2d 685], we applied this rule to an attorney who drew a defective will, thereby causing damage to the intended third-party beneficiary. (See also Biakanja v. Irving (1958) 49 Cal.2d 647, 650 [320 P.2d 16, 65 A.L.R.2d 1358].)

          In sanctioning recovery for injury caused by intentional infliction of mental distress, this court did not defer to the argument that liability should not be imposed because of the possible future difficulty in delimiting the area of liability. Defendants urged that if recovery were to be allowed for intentional infliction of emotional distress, actions would soon be forthcoming based upon every minor personal insult or indignity. We said: "That administrative difficulties do not justify the denial of relief for serious invasions of mental and emotional tranquility is demonstrated by the cases recognizing the right of privacy." (State Rubbish Collectors Assn. v. Siliznoff, supra, 38 Cal.2d 330, 338.) We rejected the contention "that to allow recovery in the absence of physical injury will open the door to unfounded claims and a flood of litigation, and that the requirement that there be physical injury is necessary to insure that serious mental suffering actually occurred" (State Rubbish Collectors Assn. v. Siliznoff, supra, 38 Cal.2d 330, 338).

          Indeed, the argument that "there is no point at which such actions would stop" is no more plausible today than when it was advanced in Winterbottom v. Wright (1842) 10 M. & W. 109, 111. History has exposed the fallacy of the claim that abolition of privity in enterprise liability cases would lead to "the most absurd and outrageous consequences, to which I can see no limit" (p. 114). In taking another giant step forward, in imposing product liability in tort, we were not halted by the spectre of an inability to pre-judge every future case. The setting of boundaries upon that doctrine makes the problem of fixing lines of limitation here appear, by comparison, almost miniscule. The widening of the area of liability and the possibility of the encouragement of unfounded and undefinable claims in the products liability field was sweeping; here we deal with a comparatively isolated and unusual situation. We do not believe that the fear that we cannot successfully adjudicate future cases of this sort, pursuant to the 744*744 suggested guidelines, should bar recovery in an otherwise meritorious cause.

          The fear of an inability to fix boundaries has not impelled the courts of England to deny recovery for emotional trauma caused by witnessing the death or injury of another due to defendant's negligence. We set forth the holdings of some English cases merely to demonstrate that courts can formulate and apply such limitations of liability.

          The first and classic case, Hambrook v. Stokes Bros., supra, 1 K.B. 141, rejected the argument that recovery should be denied because of possible administrative difficulty. In Hambrook the defendant's servant left a truck parked at the top of a steep and narrow street with the engine running. The deceased, a pregnant woman, had walked with her children on their way to school to the point where they turned onto the street where the truck was parked. Because the driver did not take proper precautions, the truck started itself down the hill and struck one of the children. Although she herself was never in danger, the mother saw the runaway truck and feared greatly for the safety of her children. Upon inquiry she found that one of the children had been seriously injured; several months later both the mother and the foetus were dead. The trial court directed the jury that the father's suit for loss of services could succeed only if the death were caused by the mother's fear for her own safety, but the appellate court held that the plaintiff could recover even if the fear for the children brought about her demise.

          Faced with the contention that their holding would increase the number of suits and foment possible fraudulent claims, Lord Justice Atkin quoted this passage: " 'I should be sorry to adopt a rule which would bar all such claims on grounds of policy alone, and in order to prevent the possible success of unrighteous or groundless actions. Such a course involves the denial of redress in meritorious cases, and it necessarily implies a certain degree of distrust, which I do not share, in the capacity of legal tribunals to get at the truth in this class of claim.' " (Hambrook v. Stokes Bros., supra, quoting from Dulieu v. White and Sons [1901] 2 K.B. 669, 681, opinion by Kennedy, J.)

          In a recent application of the Hambrook rule, an English court permitted recovery by a widow of a man who developed severe psychoneurotic symptoms as a result of harrowing experiences, not involving his personal safety, while serving as a rescuer at a gruesome train wreck. The court stated that 745*745 the " 'test of liability for shock is foreseeability of injury by shock.' " (Chadwick v. British Railways Board [1967] 1 W.L.R. 912, 920, quoting from King v. Phillips [1953] 1 Q.B. 429, 441, opinion by Denning, L.J.)

          Professor John Fleming of the School of Law, Boalt Hall, University of California, in a careful analysis of the development of English law on this subject, first explains, "It is evident, of course, that, to the extent of denying redress for certain kinds of negligently inflicted harm, the law is in effect withholding its protective mantle from corresponding human interests that may accordingly be infringed with impunity. To refuse a remedy for nervous shock is the equivalent of refusing to accede to an individual's claim for safeguarding his emotional security. It is also the same as saying that there is no 'duty' owed to exercise reasonable care to avoid inflicting this type of loss or injury. Although no longer quite as fashionable in this particular context, the same idea can also, finally, be expressed by asserting that such damage is 'too remote' or, what amounts to the same thing, that the defendant's negligence was not its 'proximate cause'." (Fleming, An Introduction to the Law of Torts (1967) p. 46.)

          After explaining that certain English cases manipulated doctrinal approaches "to subserve ulterior purposes" in granting recovery in some situations and denying it in others, Fleming states that "a long-delayed change in attitude may perhaps be discerned in the latest decision by the Court of Appeal [Boardman v. Sanderson (1964) 1 W.L.R. 1317 (C.A.)], which sustained a father's claim for a mental shock he suffered upon hearing the screams of his boy when the latter's foot was negligently caught under the wheel of the defendant's car from which father and son had just alighted inside a service garage. Neither did the father fear for his own safety nor did he so much as even see the accident. Indeed, the claimant was not even a female--the prototype plaintiff in these cases being almost exclusively concerned with pregnancy injuries. Yet the court considered it sufficient to say that a duty was owed not only to the boy but also to his near relatives, who, to the defendant's knowledge, were on the premises within earshot and likely to come upon the scene if any injury befell him. It remains to be seen whether this relaxation, slight as it may be, might not eventually be extended to relatives whose presence, though not actually known, was yet foreseeable in accordance with the prevailing 746*746 test customarily applied to claims for physical injuries." (Italics in original; fn. omitted.) (Fleming, An Introduction to the Law of Torts, supra, at p. 54.)

          The English courts have likewise marked out areas of liability, excluding those injuries that are remote and unexpected. Thus a distinguished English court has held that the physical injury of a casual bystander resulting from shock or fright upon witnessing an accident would present so unusual and hence unforeseeable an event as to warrant a directed verdict for defendant. "The driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may from time to time be expected to occur in them, including the noise of a collision and the sight of injuries to others, and is not to be considered negligent towards one who does not possess the customary phlegm." (Italics added.) (Bourhill v. Young (1943) A.C. 92, 117 (Lord Porter); see, id at pp. 98 (Lord Thankerton), 101 (Lord Russell), 104 (Lord MacMillan), and 107 (Lord Wright); King v. Phillips, supra, 1 Q.B. 429, 442.)

          [2b] Thus we see no good reason why the general rules of tort law, including the concepts of negligence, proximate cause, and foreseeability, long applied to all other types of injury, should not govern the case now before us. Any questions that the cause raises "will be solved most justly by applying general principles of duty and negligence, and ... mechanical rules of thumb which are at variance with these principles do more harm than good." (2 Harper & James, The Law of Torts, supra, p. 1039; fn. omitted.) "The refusal to apply these general rules to actions for this particular kind of physical injury is nothing short of a denial of justice." (Throckmorton, Damages for Fright, supra, 34 Harv.L.Rev. 260, 277; fn. omitted.)

          In short, the history of the cases does not show the development of a logical rule but rather a series of changes and abandonments. Upon the argument in each situation that the courts draw a Maginot Line to withstand an onslaught of false claims, the cases have assumed a variety of postures. At first they insisted that there be no recovery for emotional trauma at all. (Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal.2d 295, dissenting opinion by Peters, J., p. 328 fn. 9.) Retreating from this position, they gave relief for such trauma only if physical impact occurred. (id at p. 325 fn. 4.) They then abandoned the requirement for physical impact but 747*747 insisted that the victim fear for her own safety (Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal.2d 295), holding that a mother could recover for fear for her children's safety if she simultaneously entertained a personal fear for herself. (Lindley v. Knowlton, supra, 179 Cal. 298.) [fn. 6] They stated that the mother need only be in the "zone of danger" (Reed v. Moore (1957) 156 Cal.App.2d 43, 47 [319 P.2d 80]). The final anomaly would be the instant case in which the sister, who observed the accident, would be granted recovery because she was in the "zone of danger," but the mother, not far distant, would be barred from recovery.

          The successive abandonment of these positions exposes the weakness of artificial abstractions which bar recovery contrary to the general rules. As the commentators have suggested, the problem should be solved by the application of the principles of tort, not by the creation of exceptions to them. Legal history shows that artificial islands of exceptions, created from the fear that the legal process will not work, usually do not withstand the waves of reality and, in time, descend into oblivion.

          [3b] We have explained that recovery here will not expose the courts to false claims or a flood of litigation. The test that we have set forth will aid in the proper resolution of future cases. Indeed, the general principles of tort law are acknowledged to work successfully in all other cases of emotional trauma.

          [2c] Yet for some artificial reason this delimitation of liability is alleged to be unworkable in the most egregious case of them all: the mother's emotional trauma at the witnessed death of her child. If we stop at this point, however, we must necessarily question and reject not merely recovery here, but the viability of the judicial process for ascertaining liability 748*748 for tortious conduct itself. To the extent that it is inconsistent with our ruling here, we therefore overrule Amaya v. Home Ice Fuel & Supply Co., supra, 59 Cal.2d 295.

          To deny recovery would be to chain this state to an outmoded rule of the 19th century which can claim no current credence. No good reason compels our captivity to an indefensible orthodoxy.

The judgment is reversed.

Peters, J., Mosk, J., and Sullivan, J., concurred.

TRAYNOR, C. J.

          I dissent for the reasons set forth in Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 297-315 [29 Cal.Rptr. 33, 379 P.2d 513]. In my opinion that case was correctly decided and should not be overruled.

BURKE, J.

          As recently as 1963 this court, in Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295 [29 Cal.Rptr. 33, 379 P.2d 513], thoroughly studied and expressly rejected the proposition (pp. 298-299) that tort liability may be predicated on fright or nervous shock (with consequent bodily illness) induced solely by the plaintiff's apprehension of negligently caused danger or injury to a third person. As related in our Amaya opinion, plaintiff there was the mother of a 17-month-old boy who saw him struck by a truck; accordingly our ruling necessarily included all mothers of small children who observe them being injured. Yet today this court's Amaya decision is overruled by an opinion which disdains any discussion whatever of the history and policy of pertinent law painstakingly set forth in Amaya.

          Every one of the arguments advanced in today's opinion was considered by this court and rejected, expressly or by fair implication, in Amaya. [fn. 1] Further, as Amaya points out (p. 304 of 59 Cal.2d), in every jurisdiction in this country that had ruled on the point at issue the decisions up to that time (1963) were unanimous in upholding the rule of nonliability.

          So far as has been discovered, in not a single such jurisdiction has an appellate court ruled to the contrary since 749*749 Amaya. [fn. 2] But the majority make no attempt in today's opinion--as apparently they could not--to buttress their result with citations of cases based on American law, to say nothing of that of California. Instead, we are offered two English cases applying the 1925 Hambrook case (Hambrook v. Stokes Bros. [1925] 1 K.B. 141), whose ruling we expressly rejected in Amaya (pp. 303-304 [fn. 4], and 313, of 59 Cal.2d), and which, as already stated has not been followed or approved by any jurisdiction in this country.

          The majority, obviously recognizing that they are now embarking upon a first excursion into the "fantastic realm of infinite liability" (Amaya, at p. 315 of 59 Cal.2d), undertake to provide so-called "guidelines" for the future. But notwithstanding the limitations which these "guidelines" purport to impose, it is only reasonable to expect pressure upon our trial courts to make their future rulings conform to the spirit of the new elasticity proclaimed by the majority.

          Moreover, the majority's "guidelines" (ante, pp. 740-741) are simply a restatement of those suggested earlier by Professor Prosser (Prosser, Torts (2d ed., 1955) p. 182) they have already been discussed and expressly rejected by this court in Amaya (pp. 312-313). Upon analysis, their seeming certainty evaporates into arbitrariness, and inexplicable distinctions appear. [fn. 3] As we asked in Amaya: What if the plaintiff was honestly mistaken in believing the third person to be in danger or to be seriously injured? What if the third person had assumed the risk involved? How "close" must the relationship be between the plaintiff and the third person? I.e., what if the third person was the plaintiff's beloved niece or nephew, grandparent, fiance, or lifelong friend, more dear to the plaintiff than her immediate family? Next, how "near" 750*750 must the plaintiff have been to the scene of the accident, and how "soon" must shock have been felt? Indeed, what is the magic in the plaintiff's being actually present? Is the shock any less real if the mother does not know of the accident until her injured child is brought into her home? On the other hand, is it any less real if the mother is physically present at the scene but is nevertheless unaware of the danger or injury to her child until after the accident has occurred? No answers to these questions are to be found in today's majority opinion. Our trial courts, however, will not so easily escape the burden of distinguishing between litigants on the basis of such artificial and unpredictable distinctions.

          Further, and again contrary to the assertions of the majority (ante, pp. 732-733), no fallacy or incongruity appears in the rule permitting recovery to one within the physical zone of danger for trauma suffered from fear of impact, but denying it to a person outside that zone. The impact feared must be to oneself, and it must be an objective fear--not merely that of an excessively imaginative or timid plaintiff. As pointed out in the leading case of Waube v. Warrington (1935) 216 Wis. 603, 612-613 [258 N.W. 497], "It is one thing to say that as to those who are put in peril of physical impact, impact is immaterial if physical injury is caused by shock arising from the peril. It is the foundation of cases holding to this liberal ruling, that the person affrighted or sustaining shock was actually put in peril of physical impact, and under these conditions it was considered immaterial that the physical impact did not materialize. It is quite another thing to say that those who are out of the field of physical danger through impact shall have a legally protected right to be free from emotional distress occasioned by the peril of others, when that distress results in physical impairment." (Italics added.) Thus, California's rule that a plaintiff's reasonable fear for his own safety is compensable presents neither an argument for the same rule as to fear for others, nor a danger of recovery based on the plaintiff's false claims of fear for himself. [fn. 4] 751*751

          The assertion of the majority (ante, p. 735) that "The denial of 'duty' in the instant situation [i.e., physical impairment resulting from emotional distress occasioned by apprehension of the peril of others] rests upon the prime hypothesis that allowance of such an action would lead to successful assertion of fraudulent claims," (italics added) is controverted by the very case cited in support. (Waube v. Warrington, supra, 216 Wis. 603, 613.) Instead of reliance on any such "prime hypothesis," the Wisconsin court had this to say in Waube: "The answer to this question cannot be reached solely by logic, nor is it clear that it can be entirely disposed of by a consideration of what the defendant ought reasonably to have anticipated as a consequence of his wrong. The answer must be reached by balancing the social interests involved in order to ascertain how far defendant's duty and plaintiff's right may justly and expediently be extended. It is our conclusion that they can neither justly nor expediently be extended to any recovery for physical injuries sustained by one out of the range of ordinary physical peril as a result of the shock of witnessing another's danger. Such consequences are so unusual and extraordinary, viewed after the event, that a user of the highway may be said not to subject others to an unreasonable risk of them by the careless management of his vehicle. Furthermore, the liability imposed by such a doctrine is wholly out of proportion to the culpability of the negligent tort-feasor, would put an unreasonable burden upon users of the highway, open the way to fraudulent claims, and enter a field that has no sensible or just stopping point."

          As this court declared in Amaya (p. 315 of 59 Cal.2d), there is good sense in the conclusion of the court in Waube that "the liability imposed by such a doctrine is wholly out of proportion to the culpability of the negligent tort-feasor"; further, to permit recovery by every person who might adversely feel some lingering effect of the defendant's conduct would throw us into "the fantastic realm of infinite liability." Yet the majority opinion in the present case simply omits to either mention or discuss the injustice to California defendants flowing from such a disproportionate extension of their liability--an injustice which plainly constituted a "prime hypothesis" for rejection of the liability sought to 752*752 be imposed by the plaintiffs in Waube and in Amaya. (See also Jelley v. LaFlame (N.H. 1968) supra, 238 A.2d 728, 730, citing with approval and following this ground of decision expressed in Waube and in Amaya.)

          Additionally, the majority fail to explain their bare assertion (ante, p. 733) that contributory negligence of Erin will defeat any recovery by plaintiff mother and sister. [fn. 5] The familiar and heretofore unquestioned principle is that the relationships of parent and child or of husband and wife in themselves furnish no basis for imputation of contributory negligence. (Witkin, Summary of Cal. Law (1960) Torts, 341, p. 1542; Rest.2d Torts, 488.) Is this principle now abrogated in California? If so, it is a ruling extending far beyond the confines of the particular issue now before us, and reaches potentially every negligence action in which the plaintiffs are members of the same family.

          It appears to me that in the light of today's majority opinion the matter at issue should be commended to the attention of the Legislature of this state. Five years have elapsed since our Amaya decision, during which that body has not undertaken to change the law we there declared. We may presume, therefore, that the limitations upon liability there affirmed comport with legislative views. But if all alleged California tortfeasors, including motorists, home and other property owners, and governmental entities, are now to be faced with the concept of potentially infinite liability beyond any rational relationship to their culpability, then surely the point has been reached at which the Legislature should reconsider the entire subject and allow all interests affected to be heard.

          I would affirm the judgment.

McComb, J., concurred.

          [fn. 1] 1. For convenience, plaintiff will be used in the singular to denote the mother, although a minor sister is joined as plaintiff.

          [fn. 2] 2. "The gradual development of the law in the matter of civil liability is discussed and traced by the late Sir William Holdsworth with ample learning and lucidity in his History of English Law, vol. 8, pp. 446 et seq., and need not here be rehearsed. Suffice it to say that the process of evolution has been from the principle that every man acts at his peril and is liable for all the consequences of his acts to the principle that a man's freedom of action is subject only to the obligation not to infringe any duty of care which he owes to others. The emphasis formerly was on the injury sustained and the question was whether the case fell within one of the accepted classes of common law actions; the emphasis now is on the conduct of the person whose act has occasioned the injury and the question is whether it can be characterized as negligent." (Read v. J. Lyons & Co., Ltd. (1947) A.C. 156, 171.)

          [fn. 3] 3. To the extent that this argument shades into the contention that such claims should be denied because otherwise courts would experience a "flood of litigation," we point out that courts are responsible for dealing with cases on their merits, whether there be few suits or many; the existence of a multitude of claims merely shows society's pressing need for legal redress.

          [fn. 4] 4. California's rule that plaintiff's fear for his own safety is compensable also presents a strong argument for the same rule as to fear for others; otherwise, some plaintiffs will falsely claim to have feared for themselves, and the honest parties unwilling to do so will be penalized. (Cf. 2 Harper & James, The Law of Torts (1956) 16.15, p. 961.) Moreover, it is incongruous and somewhat revolting to sanction recovery for the mother if she suffers shock from fear for her own safety and to deny it for shock from the witnessed death of her own daughter. To the layman such a ruling must appear incomprehensible; for the courts to rely upon self- contradictory legalistic abstractions to justify it is indefensible. We concur with Judge Magruder's observation in 49 Harvard Law Review 1033, at page 1039: "Once accepting the view that a plaintiff threatened with an injurious impact may recover for bodily harm resulting from shock without impact, it is easy to agree with Atkin, L.J. ([Hambrook v. Stokes Bros., [1925] 1 K.B. 141, 158-159]), that to hinge recovery on the speculative issue whether the parent was shocked through fear for herself or for her children 'would be discreditable to any system of jurisprudence.' "

          [fn. 5] 5. The concept of the zone of danger cannot properly be restricted to the area of those exposed to physical injury; it must encompass the area of those exposed to emotional injury. The courts, today, hold that no distinction can be drawn between physical injury and emotional injury flowing from the physical injury; indeed, in the light of modern medical knowledge, any such distinction would be indefensible. As a result, in awarding recovery for emotional shock upon witnessing another's injury or death, we cannot draw a line between the plaintiff who is in the zone of danger of physical impact and the plaintiff who is in the zone of danger of emotional impact. The recovery of the one, within the guidelines set forth infra, is as much compelled as that of the other.

          [fn. 6] 6. In Lindley a 165- pound chimpanzee had entered plaintiff's house and attacked her children, whom she rescued from it. The court recognized that the concern of the mother for the safety of the children as well as concern for her own safety could have contributed to her fright. It states: "While, of course, Mrs. Lindley was greatly and perhaps chiefly concerned for her children ... there is nothing in the testimony to indicate that she was not concerned for her own safety." (P. 302.) As a basis for reversal of plaintiff's verdict defendant urged that the court should have instructed the jury that "no recovery may be had on account of fright produced by apprehended danger or peril to a third person." The court affirmed, saying that the circumstances made "it impossible that she should have been devoid of fear for herself" and that the instruction was therefor properly refused. Hence the court in substance sustained recovery for fright based upon a combination of fears, those arising from fear of the mother for the children as well as for herself.

          [fn. 1] 1. In Amaya the trial court sustained a general demurrer to the complaint and dismissed the action. The Court of Appeal reversed, and in its opinion pronounced the doctrine that is revived in the majority opinion here. (See (Cal.App.) 23 Cal.Rptr. 131.) Upon petition this court granted a hearing, thereby nullifying the Court of Appeal opinion. Our opinion affirmed the trial court.

          [fn. 2] 2. The courts of two states have expressly denied recovery: see Barber v. Pollock (1963) 104 N.H. 379 [187 A.2d 788] (wife witnessed from inside the house an accident in which her husband was killed); Jelley v. LaFlame (1968) 108 N.H. 471 [238 A.2d 728] (mother standing on side of highway witnessed an accident in which her 6-year-old daughter, who had alighted from a school bus, was crushed to death by a truck); Knaub v. Gotwalt (Pa. 1966) 422 Pa. 267 [220 A.2d 646], in which the court expressly rejected even the "impact" rule and noted that, as shown in 18 A.L.R.2d 220, virtually no jurisdiction permits recovery to a mere witness not in the zone of danger.

          [fn. 3] 3. Thus the Supreme Court of New Hampshire has recently recognized that to approve recovery by mothers of small children, as do the majority here, would create "the need ... to impose arbitrary and illogical limitations to prevent the undue extension of the liability of an alleged negligent operator such as the defendant in this case." (Jelley v. LaFlame (1968) supra, 238 A.2d 728, 730.)

          [fn. 4] 4. Contrary to the assertion of the majority (ante, pp. 746-747), no California case has held that "a mother could recover for fear for her children's safety if she simultaneously entertained a personal fear for herself." As correctly stated in Amaya (p. 300 of 59 Cal.2d), Lindley v. Knowlton (1918) 179 Cal. 298 [176 P. 440], held only that liability may be predicated upon fright and consequent illness induced by the plaintiff's reasonable fear for her own safety, even when the plaintiff may also have feared for the safety of her children. And as likewise correctly stated in Amaya (p. 302), the holding in Reed v. Moore (1957) 156 Cal.App.2d 43, 47 [319 P.2d 80], was that a wife who was outside the zone of danger but witnessed a collision in which her husband was injured could not recover. Neither Lindley nor Reed holds, or even suggests, that a plaintiff may recover for fear for the safety of another if she can establish that she herself was in the zone of danger.

          [fn. 5] 5. Neither does the majority opinion enlighten us as to how the contributory negligence of either (a) plaintiff mother or (b) plaintiff sister will assertedly defeat any recovery by the other.

DUGGAN, J.

          The plaintiff, Catrina Graves, appeals a ruling by the Superior Court (Hampsey, J.) granting the defendant, Franklin L. Estabrook's, motion to dismiss her complaint for negligent infliction of emotional distress. Estabook argued that because Graves was not related by blood or marriage to the decedent, but was only the decedent's fiancée, she cannot recover for negligent infliction of emotional distress. We reverse and remand.

          We rely upon the facts pled by Graves. In reviewing a motion to dismiss for failure to state a claim upon which relief may be granted, we assume the truth of all facts alleged by the plaintiff and construe all reasonable inferences in the light most favorable to her. Minuteman, LLC v. Microsoft Corp., 147 N.H. 634, 636 (2002). If the facts do not constitute a basis for legal relief, we will uphold the granting of the motion to dismiss. Id.

          Graves was engaged to Brett A. Ennis and had lived with him for approximately seven years. On September 23, 2000, Ennis was riding his motorcycle while Graves followed immediately behind him in a car. At an intersection, Estabrook's vehicle failed to yield at a stop sign and collided with Ennis. As Graves looked on, Ennis flipped over the hood of Estabrook's car and landed on the pavement. Graves immediately stopped her car and ran to the aid of her fiancé. She saw blood coming from his mouth and significant trauma to his head. She followed the ambulance that transported her fiancé to the hospital, stayed by his side while he was being treated, and attempted to comfort his parents and son. Ennis died the next day. Graves alleges that as a result of witnessing the collision and death of her fiancé, she suffered shock, severe mental pain and emotional distress.

          The issue before us is whether a plaintiff who lived with and was engaged to marry the decedent may recover for negligent infliction of emotional distress. We hold that she may recover damages for emotional distress as a result of witnessing the collision.

          Many of the first States to recognize bystander liability for negligent infliction of emotional distress limited its scope by applying the "physical impact test," without considering foreseeability. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 546-47 (1994). Under the physical impact test, the plaintiff must have sustained a physical impact, no matter how slight, in order to recover. Id. New Hampshire never adopted the physical impact test but instead followed the zone of danger rule. Corso v. Merrill, 119 N.H. 647, 650 (1979); Jelly v. LaFlamme, 108 N.H. 471 (1968); Cote v. Litawa, 96 N.H. 174 (1950). We followed this rule because we were concerned that "we would expose a defendant to liability that extended far 204*204 beyond his culpability." Corso, 119 N.H. at 653. That rule permitted recovery only when the bystander was within a physical zone of danger created by the defendant's negligence. See Jelly, 108 N.H. 471.

          In Corso, however, we rejected the zone of danger rule. Corso, 119 N.H. at 658. Instead, we applied the traditional negligence analysis of foreseeability and concluded that "[a]lthough fear of unlimited liability is a valid concern, we now think that this concern must be weighed against a plaintiffs serious emotional injury that is directly caused by defendant's negligence." Id. at 653.

          We held that "freedom from mental distress is an interest that is today worthy of legal protection" and that in deciding whether a defendant could be held liable, "[t]he key to applying a traditional negligence approach is the doctrine of foreseeability." Id. at 651-52; see Barnhill v. Davis, 300 N.W.2d 104, 107 (Iowa 1981); State v. Eaton, 710 P.2d 1370, 1375 (Nev. 1985); Clohessy v. Bachelor, 675 A.2d 852, 862 n. 11 (Conn. 1996) (all citing Corso's traditional approach with approval).

          We adopted the test first enunciated in Dillon v. Legg, 441 P.2d 912 (Cal. 1968), in which the California Supreme Court set forth three factors for determining whether a defendant should reasonably foresee injury to a bystander:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

          Dillon v. Legg, 441 P.2d at 920. Dillon noted that these three factors are not a rigid framework but "contemplate[] that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen." Id. at 921.

          This case requires us to examine the scope of Dillon's third factor. The defendant argues that we should continue to follow the California Supreme Court and adopt its subsequent holding in Elden v. Sheldon, 758 P.2d 582 (Cal. 1988). There, the court held that unmarried cohabitants are not "closely related" and cannot recover for negligent infliction of emotional distress. Id. at 588. Other courts have adopted the same rule. See Ferretti v. Weber, 513 So. 2d 1333 (Fla. Dist. Ct. App. 1987); Sollars v. City of Albuquerque, 794 F. Supp. 360, 363 (D.N.M. 1992); Hastie v. Rodriguez, 205*205 716 S.W.2d 675, 676 (Tex. App. 1986). See generally Annotation, Relationship Between Victim And Plaintiff-Witness As Affecting Right To Recover Under State Law For Negligent Infliction Of Emotional Distress Due To Witnessing Injury To Another Where Bystander Plaintiff Is Not Member Of Victim's Immediate Family, 98 A.L.R.5TH 609 (2002); Note, It's All Relative: A Graphical Reasoning Model For Liberalizing Recovery For Negligent Infliction Of Emotional Distress Beyond The Immediate Family, 30 VAL. U. L. REV. 913, 917 (1996) [hereinafter cited as Note].

          As noted by the New Jersey Supreme Court in Dunphy v. Gregor, 642 A.2d 372, 375 (N.J. 1994), "the [California Supreme Court] in Elden was reacting to the experience of the California courts with bystander liability under the Dillon standard." After Dillon, California courts had significantly expanded the scope of bystander liability. For instance, the supreme court had held that a plaintiff need not visually perceive the injury to the third party. See Krouse v. Graham, 562 P.2d 1022, 1031 (Cal. 1977). Other California courts had held that arriving soon after the accident was sufficient to satisfy the first two prongs of Dillon. See, e.g., Nazaroff v. Super. Ct. In And For Cty. Of Santa Cruz, 145 Cal. Rptr. 657, 664 (Ct. App. 1978); Archibald v. Braverman, 79 Cal. Rptr. 723 (Ct. App. 1969). The courts had also broadly interpreted the "closely related" factor. See Mobaldi v. Board of Regents of University of Cal., 127 Cal. Rptr. 720, 726-27 (Ct. App. 1976); see also Ledger v. Tippitt, 210 Cal. Rptr. 814, 824-28 (Ct. App. 1985). Thus, one reason for the holding in Elden was a need to rein in the expansion of bystander liability in California.

          There has been no comparable expansion of the scope of bystander liability in New Hampshire. Indeed, in Corso, we emphasized the limits of bystander liability.

Plaintiff's burden of proving causation in fact should not be minimized. The emotional injury must be directly attributable to the emotional impact of the plaintiff's observation or contemporaneous sensory perception of the accident and immediate viewing of the accident victim. Therefore, recovery will not be permitted for emotional distress when the plaintiff is merely informed of the matter after the accident or for the grief that may follow from the death of the related accident victim.

Corso, 119 N.H. at 656.

          We subsequently have adhered to the limitations created in Corso. For example, in Nutter v. Frisbee Memorial Hospital, 124 N.H. 791 (1984), we refused to expand liability to plaintiffs who reached the hospital shortly after their child died. We cautioned that a "rule that permitted 206*206 recovery ... would create a potential cause of action in every parent who learned, by any reasonable means, of his or her child's negligently inflicted death or injury, and as a result suffered emotional injury manifested by physical symptoms." Id. at 796. In Wilder v. City of Keene, 131 N.H. 599 (1989), we refused to expand liability to parents who did not witness the accident but observed their child in extremis at the hospital. We reaffirmed the requirement that plaintiffs be "sufficiently close to the accident scene to experience a sensory perception of the event." Id. at 604. And, in Jarvis v. Prudential Insurance, 122 N.H. 648 (1982), where the plaintiff alleged emotional distress caused by the denial of health insurance benefits to her husband, we held the plaintiff's reliance on Corso was "misplaced." Id. at 653. Our cases, thus, have continued to narrowly construe Corso and, unlike the California Supreme Court, we are not faced with a need to curb bystander liability.

          Notwithstanding this difference, the defendant urges us to construe the third factor of Corso literally. He argues that we should limit the meaning of "closely related" to a dictionary definition: people "connected by consanguinity," WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1916 (unabridged ed. 1961), or "persons connected by kinship, common origin or marriage." AMERICAN HERITAGE DICTIONARY 1473 (4th ed. 2000).

          Corso, however, did not modify the phrase "closely related" with "by blood or marriage." Corso, 119 N.H. at 654. Rather, "closely related" was "contrasted with an absence [of a] relationship or the presence of only a distant relationship." Id. Corso established only that mental distress suffered by a plaintiff who is closely related is foreseeable and a plaintiff with no relationship is not foreseeable. Id. The defendant's argument, limiting the analysis to a dictionary definition, amounts to a "dry classification [that] puts the emphasis at the wrong place[]." Ouellette v. Blanchard, 116 N.H. 552, 556 (1976) (abandoning distinctions between invitee, licensee and trespasser by adopting traditional negligence principles). The appropriate analysis is not to resort to a dictionary definition but rather to use our traditional analysis of foreseeability.

          In Elden, the California Supreme Court rejected a traditional analysis of foreseeability for three policy reasons: first, the State's strong interest in marriage; second, the potential invasion into an unmarried plaintiff's privacy required to prove a close relationship; and third, the need to limit the class of plaintiffs by a bright line rule. Elden, 758 P.2d at 586-88. We examine each reason in turn.

          First is the State's strong interest in marriage. In Elden, the court stated that "to the extent unmarried cohabitants are granted the same rights as married persons, the state's interest in promoting marriage is 207*207 inhibited." Id. at 586. The court noted the abolition of common law marriage as evidence of the public policy in favor of formal marriage. Id. at 587. Elden found no convincing reason to permit recovery to couples who bear no legal obligations to each other to the same extent as those who undertake such obligations. Id.

          The court in Elden apparently relied upon the dubious assumption that the possibility of recovery in tort litigation is an incentive to marry. Rejecting this assumption, the New Jersey Supreme Court observed that "a person who would not otherwise choose to marry would not be persuaded to do so in order to assure his or her legal standing in a future personal injury action should that person have the misfortune of witnessing the serious injury of his or her spouse." Dunphy, 642 A.2d at 379. The court noted that "[m]arriage will still maintain its preferential status under the law" and that allowing recovery "will not discourage marriage as a worthwhile and desirable relationship or erode society's commitment to the institution of marriage." Id. We agree.

          The second reason relied upon in Elden was the "difficult burden on the courts." Elden, 758 P.2d at 587. Elden reasoned that "[a] determination whether a partner in an unmarried cohabitation relationship may recover damages for emotional distress based on such matters as the sexual fidelity of the parties and their emotional and economic ties would require a court to undertake a massive intrusion into the private life of the partners." Id.

          Again, we agree with the New Jersey Supreme Court, which noted that "[o]ur courts have shown that the sound assessment of the quality of interpersonal relationships is not beyond a jury's ken and that courts are capable of dealing with the realities, not simply the legalities, of relationships to assure that resulting emotional injury is genuine and deserving of compensation." Dunphy, 642 A.2d at 378. Moreover, inquiry into the quality and intimacy of a relationship is often necessary in loss of consortium cases. See, e.g., id. at 378; Labonte v. National Gypsum Co., 113 N.H. 678, 682-83 (1973). Engaging in a similar inquiry in the instant case breaks no new ground.

          Furthermore, the real burden is not on the court but on the plaintiff who chooses to seek recovery for negligent infliction of emotional distress. At the outset, the plaintiff will know that the details of the relationship with the decedent will be examined and that this may involve an intrusion into the plaintiff's private life. The decision to submit to this searching inquiry is the plaintiff's choice and should not be the basis for limiting liability.

          Third, the court in Elden relied upon "the need to limit the number of persons to whom a negligent defendant owes a duty of care." Elden, 758 P.2d at 588. The court noted that "[i]t would be an entirely unreasonable 208*208 burden on all human activity if the defendant who has endangered one man were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as his friends." Id. (quotation omitted). The court stated that the absence of a bright line rule "would result in the unreasonable extension of the scope of liability of a negligent actor." Id. While admitting that the "close emotional ties between unrelated or distantly related persons is often strong" and "the result of injury ... may be as devastating as that suffered by a member of the immediate family," the court concluded that "[t]he problems of multiplication of actions and damages that would result from such an extension of liability would place an intolerable burden on society." Id. (citations and quotations omitted.)

          Rejecting the bright line rule in Elden, however, does not place an intolerable burden upon society or unfair burden upon a negligent defendant. Rather, it allows recovery for an eminently foreseeable class of plaintiffs. This class of plaintiffs is further narrowed by "the other elements of the bystander cause of action, such as contemporaneous observation, death or serious injury to the victim, and severe emotional injury to the plaintiff, [that] structure the kind of `particularized foreseeability' that ensures that the class of plaintiffs is reduced even further and that limitless liability is avoided." Note, supra at 947.

          Elden argued that "[t]he need to draw a bright line in this area of the law is essential" because there is no "principled distinction between an unmarried cohabitant who claims to have a de facto marriage relationship with his partner and de facto siblings, parents, grandparents or children." Elden, 758 P.2d at 588. While this observation is accurate, it fails to consider that there is also no logical distinction between denying recovery to a fiancée who has lived with her betrothed for seven years and allowing recovery to a wife who met and married her husband a week before the accident. See State, Dep't. of Transp. v. Hill, 963 P.2d 480, 483 (Nev. 1998) (characterizing recovery after the wedding, but not beforehand, as "fallacious"). A bright line rule that includes only individuals related by blood or marriage is

overinclusive because it permits recovery when the suffering accompanies a legal or biological link between bystander and victim, regardless of whether the relationship between the two is estranged, alienated, or in some other way removed. Conversely, the [rule] is underinclusive because it arbitrarily denies court 209*209 access to persons with valid claims that they could prove if permitted to do so.

Note, supra at 917.

          More fundamentally, we decline to adopt a bright line rule when a "flexible approach, designed to account for factual nuances" is available. See Quirk v. Town of New Boston, 140 N.H. 124, 131 (1995); see also State v. Reid, 135 N.H. 376 (1992). Foreseeability accounts for factual nuances, while a bright line rule is at odds with foreseeability. This is the rationale of Corso.

          Corso rejected the bright line "zone of danger" rule as a "mechanical rule that does more harm than good." Corso, 119 N.H. at 656 (quotation omitted). Instead, we relied upon the traditional test of foreseeability, observing "that the adoption of well-defined foreseeability factors will not lead to unlimited liability, and that the threat of remote and unexpected liability is not a substantial fear." Id. In this regard, we agree with the New Jersey Supreme Court that the expedience of a bright line rule "does not outweigh the need to recognize claims that are legitimate and just." Dunphy, 642 A.2d at 378. We therefore find unpersuasive the argument in Elden that a bright line rule is necessary.

          We conclude that "to foreclose [an unmarried cohabitant] from making a claim based upon emotional harm because her relationship with the injured person does not carry a particular label is to work a potential injustice ... where the emotional injury is genuine and substantial and is based upon a relationship of significant duration that ... is deep, lasting and genuinely intimate." Id. A number of courts have reached a similar conclusion. See Thurman v. Sellers, 62 S.W.3d 145, 164 (Tenn. Ct. App. 2001); Heldreth v. Marrs, 425 S.E.2d 157, 162-63 (W. Va. 1992); James v. Lieb, 375 N.W.2d 109, 115 (Neb. 1985); Paugh v. Hanks, 451 N.E.2d 759, 766-67 (Ohio 1983); Sinn v. Burd, 404 A.2d 672, 685 (Pa. 1979); Leong v. Takasaki, 520 P.2d 758, 766 (Haw. 1974). See generally, Annotation, 98 A.L.R.5TH 609.

          We thus recognize that unmarried cohabitants may have a close relationship, i.e., a "relationship that is stable, enduring, substantial, and mutually supportive ... cemented by strong emotional bonds and provid[ing] a deep and pervasive emotional security." Dunphy, 642 A.2d at 380. In determining whether a relationship meets this standard, a court should

take into account the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, and ... 210*210 whether the plaintiff and the injured person were members of the same household, their emotional reliance on each other, the particulars of their day to day relationship, and the manner in which they related to each other in attending to life's mundane requirements.

          Id. at 378 (quotation omitted).

          In this case, the plaintiff alleged in her complaint that she was engaged to the decedent and that they had lived together for seven years immediately preceding the accident. Construing all reasonable inferences in the light most favorable to the plaintiff, Minuteman, LLC v. Microsoft Corp., 147 N.H. at 636, we conclude that it is reasonable to infer that in the course of their lengthy cohabitation the plaintiff and her fiancé enjoyed mutual dependence, common contributions to a life together, emotional reliance on each other and attended to life's mundane requirements together. We conclude that the pleadings are reasonably susceptible of a construction that would withstand a motion to dismiss.

          Reversed and remanded.

          BRODERICK and NADEAU, JJ., concurred; DALIANIS, J., with whom BROCK, C.J., joined, dissented.

          DALIANIS, J. dissenting. Because I believe that the class of bystanders who may recover for negligent infliction of emotional distress should be limited to those closely related to the victim by marriage or blood, I respectfully dissent.

          In Corso v. Merrill, 119 N.H. 647 (1979), we abandoned the "zone of danger" standard which barred recovery unless the plaintiff had been exposed to a risk of physical harm, and instead permitted bystander recovery for negligent infliction of emotional distress premised upon a traditional test of foreseeability. Id. at 657. In expanding this cause of action, we recognized the need to permit recovery for a "plaintiff's serious emotional injury that is directly caused by [the] defendant's negligence." Id. at 653. At the same time, however, "we recognized the need for a clearly-defined boundary to liability in this area...." Nutter v. Frisbie Mem. Hosp., 124 N.H. 791, 795 (1984). This necessity arises because the liability of a negligent defendant to a bystander is largely derivative. Id. at 794. "The risks of indirect harm from the loss or injury of loved ones [are] pervasive and inevitably realized at one time or another." Id. (quotation omitted). To recognize liability for all such harms, however, would impose "remote and unexpected liability" upon defendants in bystander cases. See Corso, 119 N.H. at 656. While it is difficult to determine the point at which 211*211 the harm is no longer reasonably foreseeable to a defendant, "[t]he fact that such a boundary is difficult to draw does not obviate the reasons for drawing it." Nutter, 124 N.H. at 795.

          In establishing a clearly-defined boundary to liability, we must balance the need to compensate those plaintiffs whose injuries derive from the defendant's negligence with the need to avoid both infinite liability and uncertainty in the law. See Wilder v. City of Keene, 131 N.H. 599, 603 (1989). Thus, we have narrowly construed the foreseeability factors that we adopted in Corso to achieve this balance by "clearly limiting bystander recovery to those plaintiffs whose injuries were most directly and foreseeably caused by a defendant's negligence." Nutter, 124 N.H. at 795.

          The policy goals of limited liability and certainty of the law cannot be achieved if the class of plaintiffs who may recover is based upon the subjective emotional connection of the parties. Rather, we should narrowly construe the "closely related" factor by limiting recovery with objective standards that clearly define the defendant's liability. See Grotts v. Zahner, 989 P.2d 415, 417 n.6 (Nev. 1999). Accordingly, I would restrict the class of plaintiffs who may recover under this cause of action to those closely related to the victim by the objective criteria of blood or marriage.

          The majority's interpretation of the "closely related" factor is "so ambiguous as to limit the class of plaintiffs who could assert a claim for [negligent infliction of emotional distress] only by the imagination of counsel drafting the pleadings." Lindsey v. Visitec, Inc., 804 F. Supp. 1340, 1344 (W.D. Wash. 1992) (quotation omitted). If the emotional connection between the bystander and the victim determines whether they are "closely related," there is no principled distinction, for example, between an unmarried cohabitant who claims to have a sufficiently "intimate" relationship with the victim and close friends who claim the same intimacy. See Elden v. Sheldon, 758 P.2d 582, 588 (Cal. 1988). I disagree with the New Jersey Supreme Court's holding in Dunphy v. Gregor, 642 A.2d 372, 378 (N.J. 1994), that a standard that "take[s] into account the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, [and] the extent and quality of shared experience" properly confines this cause of action within a well-defined boundary. To the contrary, the "application of these factors would not provide a sufficiently definite and predictable test to allow for consistent application from case to case." Elden, 758 P.2d at 587; see also Nutter, 124 N.H. at 795 (recognizing the need to avoid uncertainty in the law).

          If the class of potential plaintiffs who may recover is extended beyond those closely related to the victim by blood or marriage, courts will face difficult problems of proof in determining whether the relationship is sufficiently close to permit recovery. See Elden, 758 P.2d at 587. Under the 212*212 majority's holding, courts will be compelled to define and make findings about the subjective emotional connection between the parties in an attempt to determine whether the plaintiffs emotional trauma was reasonably foreseeable to the defendant. Adopting such a standard will extend this cause of action beyond that contemplated by Corso.

          Thus, I would not expand the class of potential plaintiffs beyond those closely related to the victim by the objective criteria of marriage or blood. While I recognize that "[s]uch limitations are indisputably arbitrary since it is foreseeable that in some cases unrelated persons have a relationship to the victim or are so affected by the traumatic event that they suffer equivalent emotional distress," Thing v. La Chusa, 771 P.2d 814, 828 (Cal. 1989), defining the class of "closely related" bystanders by the depth of their emotional connection to the victim would unreasonably expand the defendant's liability. See Elden, 758 P.2d at 588.

          The majority declines to adopt a bright line rule in favor of a "flexible approach" to account for "factual nuances." I fail to see how adopting a bright line rule here is any different from the bright line rule that we have followed with regard to the contemporaneous observation factor. We have denied recovery to parents who viewed their deceased child in the hospital after the accident, see Nutter, 124 N.H. at 795-96, and to parents who observed their child in extremis within one hour of the accident, see Wilder, 131 N.H. at 603-04. We did so, not because we deemed the parents' emotional trauma unforeseeable to the defendant, but rather as a means of reasonably limiting the defendant's liability. See Wilder, 131 N.H. at 604; Nutter, 124 N.H. at 795-96.

          We have heretofore avoided expanding the scope of bystander liability. We have done so by narrowly construing the Corso factors and by establishing clearly defined boundaries to the cause of action. I see no reason to depart from this practice, and, therefore, I would affirm.

BROCK, C.J., joins in the dissent.

Chief Judge KAYE.

          The novel issues raised by these appeals—arising from construction-related disasters in midtown Manhattan—concern first, a landholder's duty in negligence where plaintiffs' sole injury is lost income and second, the viability of claims for public nuisance.

          Two of the three appeals involve the same event. On December 7, 1997, a section of the south wall of 540 Madison Avenue, a 39-story office tower, partially collapsed and bricks, mortar and other material fell onto Madison Avenue at 55th Street, a prime commercial location crammed with stores and skyscrapers. The collapse occurred after a construction project, which included putting 94 holes for windows into the building's south wall, aggravated existing structural defects. New York City officials directed the closure of 15 heavily trafficked blocks on Madison Avenue—from 42nd to 57th Street—as well as adjacent side streets between Fifth and Park Avenues. The closure lasted for approximately two weeks, but some businesses nearest to 540 Madison remained closed for a longer period.

          In 532 Madison Ave. Gourmet Foods v Finlandia Ctr., plaintiff operates a 24-hour delicatessen one-half block south of 540 Madison, and was closed for five weeks. The two named plaintiffs in the companion case, 5th Ave. Chocolatiere v 540 Acquisition Co., are retailers at 510 Madison Avenue, two blocks from the building, suing on behalf of themselves and a putative class of "all other business entities, in whatever form, including but not limited to corporations, partnerships and sole proprietorships, located in the Borough of Manhattan and bounded geographically on the west by Fifth Avenue, on the east by Park Avenue, on the north by 57th Street and on the South by 42nd Street." Plaintiffs allege that shoppers and 287*287 others were unable to gain access to their stores during the time Madison Avenue was closed to traffic. Defendants in both cases are Finlandia Center (the building owner), 540 Acquisition Company (the ground lessee) and Manhattan Pacific Management (the managing agent).

          On defendants' motions in both cases, Supreme Court dismissed plaintiffs' negligence claims on the ground that they could not establish that defendants owed a duty of care for purely economic loss in the absence of personal injury or property damage, and dismissed the public nuisance claims on the ground that the injuries were the same in kind as those suffered by all of the businesses in the community. In 5th Ave. Chocolatiere, plaintiffs' additional claims for gross negligence and negligence per se were dismissed on the ground that plaintiffs could not establish a duty owed by defendants, and their private nuisance cause of action was dismissed on the ground that they could not establish either intentional or negligent wrongdoing.

          Goldberg Weprin & Ustin v Tishman Constr. involves the July 21, 1998 collapse of a 48-story construction elevator tower on West 43rd Street between Sixth and Seventh Avenues—the heart of bustling Times Square. Immediately after the accident, the City prohibited all traffic in a wide area of midtown Manhattan and also evacuated nearby buildings for varying time periods. Three actions were consolidated—one by a law firm, a second by a public relations firm and a third by a clothing manufacturer, all situated within the affected area. Plaintiff law firm sought damages for economic loss on behalf of itself and a proposed class "of all persons in the vicinity of Broadway and 42nd Street, New York, New York, whose businesses were affected and/or caused to be closed" as well as a subclass of area residents who were evacuated from their homes. Plaintiff alleged gross negligence, strict liability, and public and private nuisance.

          Noting the enormity of the liability sought, including recovery by putative plaintiffs as diverse as hot dog vendors, taxi drivers and Broadway productions, Supreme Court concluded that the failure to allege personal injury or property damage barred recovery in negligence. The court further rejected recovery for strict liability, and dismissed both the public nuisance claim (because plaintiff was unable to show special damages) and the private nuisance claim (because plaintiff could not show that the harm threatened only one person or relatively few).

          288*288 The Appellate Division affirmed dismissal of the Goldberg Weprin complaint, concluding that, absent property damage, the connection between defendants' activities and the economic losses of the purported class of plaintiffs was "too tenuous and remote to permit recovery on any tort theory" (275 AD2d 614). The court, however, reinstated the negligence and public nuisance claims of plaintiffs 532 Madison and 5th Ave. Chocolatiere, holding that defendants' duty to keep their premises in reasonably safe condition extended to "those businesses in such close proximity that their negligent acts could be reasonably foreseen to cause injury" (which included the named merchant plaintiffs) (272 AD2d 23) and that, as such, they established a special injury distinct from the general inconvenience to the community at large. Two Justices dissented, urging application of the "economic loss" rule, which bars recovery in negligence for economic damage absent personal injury or property damage. The dissenters further concluded that the public nuisance claims were properly dismissed because plaintiffs could not establish special injury.

          We now reverse in 532 Madison and 5th Ave. Chocolatiere and affirm in Goldberg Weprin & Ustin.

Plaintiffs' Negligence Claims

          Plaintiffs contend that defendants owe them a duty to keep their premises in reasonably safe condition, and that this duty extends to protection against economic loss even in the absence of personal injury or property damage. Defendants counter that the absence of any personal injury or property damage precludes plaintiffs' claims for economic injury.[1]

          The existence and scope of a tortfeasor's duty is, of course, a legal question for the courts, which "fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability" (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [quoting Palka v Servicemaster 289*289 Mgt. Servs. Corp., 83 NY2d 579, 586]). At its foundation, the common law of torts is a means of apportioning risks and allocating the burden of loss. In drawing lines defining actionable duty, courts must therefore always be mindful of the consequential, and precedential, effects of their decisions.

          As we have many times noted, foreseeability of harm does not define duty (see, e.g., Pulka v Edelman, 40 NY2d 781, 785). Absent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm. This restriction is necessary to avoid exposing defendants to unlimited liability to an indeterminate class of persons conceivably injured by any negligence in a defendant's act.

          A duty may arise from a special relationship that requires the defendant to protect against the risk of harm to plaintiff (see, e.g., Eiseman v State of New York, 70 NY2d 175, 187-188). Landowners, for example, have a duty to protect tenants, patrons and invitees from foreseeable harm caused by the criminal conduct of others while they are on the premises, because the special relationship puts them in the best position to protect against the risk (see, e.g., Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 518-519). That duty, however, does not extend to members of the general public (see, Waters v New York City Hous. Auth., 69 NY2d 225, 229). Liability is in this way circumscribed, because the special relationship defines the class of potential plaintiffs to whom the duty is owed.

          In Strauss v Belle Realty Co. (65 NY2d 399) we considered whether a utility owed a duty to a plaintiff injured in a fall on a darkened staircase during a citywide blackout. While the injuries were logically foreseeable, there was no contractual relationship between the plaintiff and the utility for lighting in the building's common areas. As a matter of policy, we restricted liability for damages in negligence to direct customers of the utility in order to avoid crushing exposure to the suits of millions of electricity consumers in New York City and Westchester.

          Even closer to the mark is Milliken & Co. v Consolidated Edison Co. (84 NY2d 469), in which an underground water main burst near 38th Street and 7th Avenue in Manhattan. The waters flooded a subbasement where Consolidated Edison maintained an electricity supply substation, and then a fire broke out, causing extensive damage that disrupted the flow of electricity to the Manhattan Garment Center and interrupting 290*290 the biannual Buyers Week. Approximately 200 Garment Center businesses brought more than 50 lawsuits against Con Edison, including plaintiffs who had no contractual relationship with the utility and who sought damages solely for economic loss. Relying on Strauss, we again held that only those persons contracting with the utility could state a cause of action. We circumscribed the ambit of duty to avoid limitless exposure to the potential suits of every tenant in the skyscrapers embodying the urban skyline.

          A landowner who engages in activities that may cause injury to persons on adjoining premises surely owes those persons a duty to take reasonable precautions to avoid injuring them (see, e.g., Weitzmann v Barber Asphalt Co., 190 NY 452, 457). We have never held, however, that a landowner owes a duty to protect an entire urban neighborhood against purely economic losses. A comparison of Beck v FMC Corp. (53 AD2d 118, 121, affd 42 NY2d 1027) and Dunlop Tire & Rubber Corp. v FMC Corp. (53 AD2d 150, 154-155) is instructive. Those cases arose out of the same incident: an explosion at defendant FMC's chemical manufacturing plant caused physical vibrations, and rained stones and debris onto plaintiff Dunlop Tire's nearby factory. The blast also caused a loss of electrical power—by destroying towers and distribution lines owned by a utility—to both Dunlop Tire and a Chevrolet plant located one and one-half miles away. Both establishments suffered temporary closure after the accident. Plaintiffs in Beck were employees of the Chevrolet plant who sought damages for lost wages caused by the plant closure. Plaintiff Dunlop Tire sought recovery for property damage emanating from the blast and the loss of energy, and lost profits sustained during the shutdown.

          In Dunlop Tire, the Appellate Division observed that, although part of the damage occurred from the loss of electricity and part from direct physical contact, defendant's duty to plaintiffs was undiminished. The court permitted plaintiffs to seek damages for economic loss, subject to the general rule requiring proof of the extent of the damage and the causal relationship between the negligence and the damage. The Beck plaintiffs, by contrast, could not state a cause of action, because, to extend a duty to defendant FMC would, "like the rippling of the waters, [go] far beyond the zone of danger of the explosion," to everyone who suffered purely economic loss (Beck v FMC Corp., 53 AD2d, at 121, supra).

          Plaintiffs' reliance on People Express Airlines v Consolidated Rail Corp. (100 NJ 246, 495 A2d 107) is misplaced. There, a 291*291 fire started at defendant's commercial freight yard located across the street from plaintiff's airport offices. A tank containing volatile chemicals located in the yard was punctured, emitting the chemicals and requiring closure of the terminal because of fear of an explosion. Allowing the plaintiff to seek damages for purely economic loss, the New Jersey court reasoned that the extent of liability and degree of foreseeability stand in direct proportion to one another: the more particular the foreseeability that economic loss would be suffered as a result of the defendant's negligence, the more just that liability be imposed and recovery permitted. The New Jersey court acknowledged, however, that the presence of members of the public, or invitees at a particular plaintiff's business, or persons traveling nearby, while foreseeable, is nevertheless fortuitous, and the particular type of economic injury that they might suffer would be hopelessly unpredictable. Such plaintiffs, the court recognized, would present circumstances defying any appropriately circumscribed orbit of duty. We see a like danger in the urban disasters at issue here, and decline to follow People Express.

          Policy-driven line-drawing is to an extent arbitrary because, wherever the line is drawn, invariably it cuts off liability to persons who foreseeably might be plaintiffs. The Goldberg Weprin class, for example, would include all persons in the vicinity of Times Square whose businesses had to be closed and a subclass of area residents evacuated from their homes; the 5th Ave. Chocolatiere class would include all business entities between 42nd and 57th Streets and Fifth and Park Avenues. While the Appellate Division attempted to draw a careful boundary at storefront merchant-neighbors who suffered lost income, that line excludes others similarly affected by the closures—such as the law firm, public relations firm, clothing manufacturer and other displaced plaintiffs in Goldberg Weprin, the thousands of professional, commercial and residential tenants situated in the towers surrounding the named plaintiffs, and suppliers and service providers unable to reach the densely populated New York City blocks at issue in each case.

          As is readily apparent, an indeterminate group in the affected areas thus may have provable financial losses directly traceable to the two construction-related collapses, with no satisfactory way geographically to distinguish among those who have suffered purely economic losses (see also, Matter of Kinsman Tr. Co., 388 F2d 821, 825 n 8). In such circumstances, limiting the scope of defendants' duty to those who have, as a 292*292 result of these events, suffered personal injury or property damage—as historically courts have done—affords a principled basis for reasonably apportioning liability.

          We therefore conclude that plaintiffs' negligence claims based on economic loss alone fall beyond the scope of the duty owed them by defendants and should be dismissed.[2]

Plaintiffs' Public Nuisance Claims

          Plaintiffs contend that they stated valid causes of action for public nuisance, alleging that the collapses forced closure of their establishments, causing special damages beyond those suffered by the public.

          A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons. A public nuisance is a violation against the State and is subject to abatement or prosecution by the proper governmental authority (Copart Indus. v Consolidated Edison Co., 41 NY2d 564, 568).

          A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large (see, Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 334 [citing Restatement (Second) of Torts § 821C, comment b]). This principle recognizes the necessity of guarding against the multiplicity of lawsuits that would follow if everyone were permitted to seek redress for a wrong common to the public (Restatement [Second] of Torts § 821C, comment a; Prosser, Private Action for Public Nuisance, 52 Va L Rev 997, 1007 [1966]).

          A nuisance is the actual invasion of interests in land, and it may arise from varying types of conduct (Copart Indus. v Consolidated Edison Co., 41 NY2d, at 569, supra). In the cases before us, the right to use the public space around Madison Avenue and Times Square was invaded not only by the building collapses but also by the City's decision, in the interest of public safety, to close off those areas. Unlawful obstruction of a 293*293 public street is a public nuisance, and a person who as a consequence sustains a special loss may maintain an action for public nuisance (Callanan v Gilman, 107 NY 360, 370). Indeed, "in a populous city, whatever unlawfully turns the tide of travel from the sidewalk directly in front of a retail store to the opposite side of the street is presumed to cause special damage to the proprietor of that store, because diversion of trade inevitably follows diversion of travel" (Flynn v Taylor, 127 NY 596, 600).

          The question here is whether plaintiffs have suffered a special injury beyond that of the community so as to support their damages claims for public nuisance (see, Graceland Corp. v Consolidated Laundries Corp., 7 AD2d 89, 91, affd 6 NY2d 900). We conclude that they have not.

          In Burns Jackson we refused to permit a public nuisance cause of action by two law firms seeking damages for increased expenses and lost profits resulting from the closure of the New York City transit system during a labor strike. We concluded that, because the strike was so widespread, every person, firm and corporation conducting a business or profession in the City suffered similar damage and thus the plaintiffs could not establish an injury different from that of the public at large.

          While not as widespread as the transit strike, the Madison Avenue and Times Square closures caused the same sort of injury to the communities that live and work in those extraordinarily populous areas. As the trial court in Goldberg Weprin & Ustin pointed out, though different in degree, the hot dog vendor and taxi driver suffered the same kind of injury as the plaintiff law firm. Each was impacted in the ability to conduct business, resulting in financial loss. When business interference and ensuing pecuniary damage is "so general and widespread as to affect a whole community, or a very wide area within it, the line is drawn" (Prosser, supra, at 1015). While the degree of harm to the named plaintiffs may have been greater than to the window washer, per diem employee or neighborhood resident unable to reach the premises, in kind the harm was the same.

          Leo v General Elec. Co. (145 AD2d 291) is inapposite. In Leo, the Appellate Division recognized a private right of action by plaintiff commercial fishermen who contended that defendant's pollution of the Hudson River with toxic polychlorinated biphenyls (commonly known as PCBs), created a public nuisance that had a devastating effect on their ability to earn a living. 294*294 Plaintiffs were able to establish that their injuries were special and different in kind, not merely in degree: a loss of livelihood was not suffered by every person who fished the Hudson. By contrast, every person who maintained a business, profession or residence in the heavily populated areas of Times Square and Madison Avenue was exposed to similar economic loss during the closure periods. Thus, in that the economic loss was "common to an entire community and the plaintiff[s] suffer[ed] it only in a greater degree than others, it is not a different kind of harm and the plaintiff[s] cannot recover for the invasion of the public right" (Restatement [Second] of Torts § 821C, comment h).

          Accordingly, in 532 Madison Ave. Gourmet Foods v Finlandia Ctr., the order of the Appellate Division should be reversed, with costs, the defendants' motion to dismiss the complaint granted and the certified question answered in the negative. In 5th Ave. Chocolatiere v 540 Acquisition Co., the order of the Appellate Division should be reversed, with costs, the defendants' motion to dismiss the complaint granted in its entirety and the certified question answered in the negative. In Goldberg Weprin & Ustin v Tishman Constr., the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

          In 532 Madison Ave. Gourmet Foods v Finlandia Ctr.: Order reversed, etc.

          In 5th Ave. Chocolatiere v 540 Acquisition Co.: Order reversed, etc.

          In Goldberg Weprin & Ustin v Tishman Constr. Corp.: Order, insofar as appealed from, affirmed, with costs.

          [1] The "economic loss" rule espoused in Schiavone Constr. Co. v Mayo Corp. (56 NY2d 667, revg on dissent at 81 AD2d 221) and relied on by defendants has no application here. That case stands for the proposition that an end-purchaser of a product is limited to contract remedies and may not seek damages in tort for economic loss against a manufacturer (see also, Bocre Leasing Corp. v General Motors Corp., 84 NY2d 685; Bellevue S. Assocs. v HRH Constr. Corp., 78 NY2d 282).

          [2] Plaintiff Goldberg Weprin & Ustin's bare allegation that the construction project was dangerously handled was insufficient to set forth a cause of action for strict liability based on an abnormally dangerous activity (see, Engel v Eureka Club, 137 NY 100, 104-105; Doundoulakis v Town of Hempstead, 42 NY2d 440, 448). Damage to property—one of the material elements—was not alleged (see, Spano v Perini Corp., 25 NY2d 11, 18).