[888] Karl E. Knudsen, Raleigh, for plaintiff-appellant.

Patterson, Dilthey, Clay & Bryson, L.L.P. by Mary M. McHugh, Raleigh and Edward Hausle, Greenville, for defendant-appellees.

ARNOLD, Chief Judge.

The sole issue on appeal is whether the trial court correctly granted defendants' motion to dismiss plaintiff's complaint for failure [889] to state a claim upon which relief can be granted. See N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (1990). We find that the dismissal was proper.

"The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient." Shoffner Industries, Inc. v. W. B. Lloyd Construction Co., 42 N.C.App. 259, 263-64, 257 S.E.2d 50, 54 (citation omitted), disc. review denied, 298 N.C. 296, 259 S.E.2d 301 (1979). A complaint is not sufficient to withstand a motion to dismiss if an insurmountable bar to recovery appears on the face of the complaint. Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 166 (1970). Such an insurmountable bar may consist of an absence of law to support a claim, an absence of facts sufficient to make a good claim, or the disclosure of some fact that necessarily defeats the claim. Id. at 102-03, 176 S.E.2d at 166.

Defendants contend that the criminal actions of Lorenzo Norwood and Herbert Joyner in carrying the gasoline off defendants' premises and using it to burn plaintiff's brother were intervening and insulating actions creating an insurmountable bar to plaintiff's recovery from defendants. We agree.

"Generally, whether the negligence of a second actor insulated that of another is a question for the jury." Broadway v. Blythe Industries, Inc., 313 N.C. 150, 157, 326 S.E.2d 266, 271 (1985). However, if it affirmatively appears upon the face of the complaint that the alleged negligence "was superseded and completely insulated by the intervening negligence," dismissal pursuant to Rule 12(b)(6) may be proper. See Riddle v. Artis, 243 N.C. 668, 670, 91 S.E.2d 894, 896 (1956).

An intervening cause that relieves the original wrongdoer of liability must be an independent force that "turns aside the natural sequence of events set in motion by the original wrongdoer `and produces a result which would not otherwise have followed, and which could not have been reasonably anticipated.'" Id. at 671, 91 S.E.2d at 896 (citation omitted). "`The test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another, is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury.'" Id. 91 S.E.2d at 896-97 (citation omitted). Undoubtedly, the subsequent criminal acts of those purchasing the gasoline in this case were reasonably unforeseeable by defendants.

Nevertheless, plaintiff argues that defendants' acts were not insulated because it was reasonably foreseeable that some injury would result from the act of selling gasoline in an unapproved container. Plaintiff relies on the following standard:

"All that the plaintiff is required to prove on the question of foreseeability, in determining proximate cause, is that in `the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.'"

Riddle, 243 N.C. at 672, 91 S.E.2d at 897 (citations omitted). We find, however, that the injury in this case did not result from defendants' alleged negligent act of selling gasoline into an unapproved container.

The safety provisions requiring that gasoline be sold only into approved and labeled containers, see N.C. Gen.Stat. § 119-43 (1994); N.C. Fire Prevention Code §§ 901.3, 907.4.1, were enacted to prevent various injuries possible from the improper storage of a highly flammable and dangerous material. See Reynolds v. Murph, 241 N.C. 60, 64, 84 S.E.2d 273, 276 (1954) (holding that G.S. § 119-43 was "designed to prevent tragic consequences flowing from a failure to label or otherwise identify a dangerous and explosive, yet apparently harmless, liquid").

Assuming, arguendo, that defendants violated G.S. § 119-43, we recognize [890] that such a violation is negligence per se. See Reynolds, 241 N.C. at 63, 84 S.E.2d at 275. We must still determine, however, whether such negligence "was the proximate cause of the injury for which recovery is sought." Id. (emphasis added). An allegation that certain negligence was the proximate cause of an injury is sufficient against a motion to dismiss under Rule 12(b)(6) "unless it appears affirmatively from the complaint that there was no causal connection between the alleged negligence and the injury." Id. at 64, 84 S.E.2d at 275-76.

In this case, we find no causal connection between the defendants' allegedly selling the gasoline into an antifreeze container in violation of G.S. § 119-43, and the criminal acts of dousing and burning plaintiff's brother. Clearly, criminal activity is not the type of harm that the safety provisions were designed to protect against. The tragic consequences in this case did not "flow" from the sale of gasoline into an unapproved container. See Reynolds, 241 N.C. at 64, 84 S.E.2d at 276.

We hold that the intervening actions in this case, as set forth in paragraph 9 of plaintiff's complaint, supersede and completely insulate the alleged negligence of defendants. The complaint on its face reveals the absence of proximate cause between defendants' alleged negligence and the burning of Walid Al-Hourani, which establishes an insurmountable bar to recovery and necessarily defeats plaintiff's claim.

Defendants assert several "cross-assignments of error," which they contend are properly before this Court. We disagree.

Rule 10(d) of the North Carolina Rules of Appellate Procedure provides:

Without taking an appeal an appellee may cross-assign as error any action or omission of the trial court which was properly preserved for appellate review and which deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.

(Emphasis added.) Defendants' "cross-assignments of error" allege that the trial court erred in granting plaintiff's post-judgment motion to extend time to settle the record on appeal and in denying defendants' motion to dismiss the appeal.

Although defendants properly preserved their objections for appellate review by filing notices of appeal, the errors alleged do not assert an alternative basis in law to support the dismissal from which plaintiff appeals. Rather, defendant's "cross-assignments of error" address the trial court's post-judgment orders relating to plaintiff's appeal. Indeed, defendants contend that the alternative basis for dismissal of plaintiff's complaint is that the "appeal was not prosecuted in a timely manner." This argument lacks logic or merit. Defendants have asserted no alternative basis to support dismissal of plaintiff's action, and the errors they allege are not properly before this Court. We therefore decline to address them.

Affirmed.

JOHN C. MARTIN and SMITH, JJ., concur.

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

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

OPINION BY: CARDOZO

OPINION:

The action is for personal injuries.

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

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

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

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid. The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.

The defendant says that we must stop, in following the chain of causes, when action ceases to be "instinctive." By this, is meant, it seems, that rescue is at the peril of the rescuer, unless spontaneous and immediate. If there has been time to deliberate, if impulse has given way to judgment, one cause, it is said, has spent its force, and another has intervened. In this case, the plaintiff walked more than four hundred feet in going to Herbert's aid. He had time to reflect and weigh; impulse had been followed by choice; and choice, in the defendant's view, intercepts and breaks the sequence. We find no warrant for thus shortening the chain of jural causes. We may assume, though we are not required to decide, that peril and rescue must be in substance one transaction; that the sight of the one must have aroused the impulse to the other; in short, that there must be unbroken continuity between the commission of the wrong and the effort to avert its consequences. If all this be assumed, the defendant is not aided. Continuity in such circumstances is not broken by the exercise of volition. So sweeping an exception, if recognized, would leave little of the rule. "The human mind," as we have said, "acts with celerity which it is sometimes impossible to measure." The law does not discriminate between the rescuer oblivious of peril and the one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion.

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

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

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

248 N.Y. 339

HELEN PALSGRAF, Respondent,

v.

THE LONG ISLAND RAILROAD COMPANY, Appellant. 

Palsgraf v. Long Island R. R. Co., 222 App. Div. 166, reversed.

(Argued February 24, 1928; decided May 29, 1928.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the second judicial department, [340] entered December 16, 1927, affirming a judgment in favor of plaintiff entered upon a verdict.

William McNamara and Joseph F. Keany for appellant. Plaintiff failed to establish that her injuries were caused by negligence of the defendant and it was error for the court to deny the defendant's motion to dismiss the complaint. (Paul v. Cons. Fireworks Co., 212 N. Y. 117; Hall v. N. Y. Tel. Co., 214 N. Y. 49; Perry v. Rochester Lime Co., 219 N. Y. 60; Pyne v. Cazenozia Canning Co., 220 N. Y. 126; Adams v. Bullock, 227 N. Y. 208; McKinney v. N. Y. Cons. R. R. Co., 230 N. Y. 194; Palsey v. Waldorf Astoria, Inc., 220 App. Div. 613; Parrott v. Wells Fargo & Co., 15 Wall. 524; A., T. & S. Fe Ry. Co. v. Calhoun, 213 U. S. 1; Prudential Society, Inc., v. Ray, 207 App. Div. 496; 239 N. Y. 600.)

Matthew W. Wood for respondent. The judgment of affirmance was amply sustained by the law and the facts. (Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425; Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469; Lowery v. Western Union Tel. Co., 60 N. Y. 198; Insurance Co. v. Tweed, 7 Wall. 44; Trapp v. McClellan, 68 App. Div. 362; Ring v. City of Cohoes, 77 N. Y. 83; McKenzie v. Waddell Coal Co., 89 App. Div. 415; Slater v. Barnes, 241 N. Y. 284; King v. Interborough R. T. Co., 233 N. Y. 330.)

CARDOZO, Ch. J.

Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help [341] him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.

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

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

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

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

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

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

ANDREWS, J. (dissenting).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

POUND, LEHMAN and KELLOGG, JJ., concur with CARDOZO, Ch. J.; ANDREWS, J., dissents in opinion in which CRANE and O'BRIEN, J J., concur.

Judgment reversed, etc.

50 F.3d 484 (1995)

W. Scott Montross (argued), Townsend, Hovde & Montross, Indianapolis, IN, David W. Stone, IV, Anderson, IN, Thomas A. Hendrickson, Indianapolis, IN, for plaintiff-appellant Debra Jo Edwards.

Thomas J. Campbell (argued), Thomas R. Schultz, Locke, Reynolds, Boyd & Weisell, Indianapolis, IN, for defendants-appellees Honeywell, Inc., Honeywell Protection Services.

Before POSNER, Chief Judge, and BAUER and ROVNER, Circuit Judges.

POSNER, Chief Judge.

A fireman's widow has sued Honeywell, the provider of an alarm system intended to [485] protect the house where her husband was killed in the line of duty. The suit, filed in an Indiana state court, charges that David John Edwards died because of Honeywell's negligence in failing to call the fire department promptly upon receiving a signal from the alarm. As a result of the delay, the floor of the burning house was in a severely weakened condition by the time the firemen entered, and it collapsed beneath Edwards, plunging him to his death. The district court, to which the suit had been removed under the diversity jurisdiction, granted summary judgment for Honeywell. The court held that Honeywell owed no duty of care to fireman Edwards under the common law of Indiana. The widow's appeal requires us to grapple with the elusive concept of "duty" in the law of torts.

In 1982 Honeywell had made a contract with a couple named Baker to install (for $1,875) and monitor (for $21 a month) an alarm system in the Bakers' house. The house is a wood-frame house located in a suburb of Indianapolis and ordinary in every respect except that the Bakers conducted an interior-decorating service out of the basement. The contract limited Honeywell's liability to the Bakers for the consequences of any failure of the system to $250. The validity of this limitation is not questioned. Leon's Bakery, Inc. v. Grinnell Corp., 990 F.2d 44, 48-49 (2d Cir.1993).

The alarm system was of a type that has become common. If the house was entered while the alarm was turned on, and the alarm was not promptly disarmed, or if someone in the house pushed either a "panic button" or a button on the alarm console labeled fire, police, or emergency medical service, a signal was automatically transmitted over the telephone lines to a central station maintained by Honeywell. The person manning the station (called the "alarm monitor") would call the fire department if the fire or medical-emergency button had been pressed, and otherwise would call the police department. After that the alarm monitor would call a neighbor of the subscriber. The contract required the subscriber to inform Honeywell which police and fire department and which neighbor should be notified, and presumably the Bakers had done this back in 1982, though whether accurately or not we do not know. Honeywell does not make any effort to assure the accuracy of, or keep up to date, the information furnished by the subscriber concerning whom to call.

Six years passed. It was now an afternoon in the winter of 1988, and Mrs. Baker was working in the basement with two of the employees of the decorating service when she heard a sound. She looked up and noticed an orange glow in the furnace room. One of the employees opened the door to the room, revealing a shelving unit in the furnace room already engulfed in flames from floor to ceiling. Mrs. Baker ran upstairs and tried to dial 911 but misdialed. She gave up on the phone and pushed two buttons on the control panel of the alarm system. One was the fire button, the other the police button. Then she grabbed her dog and ran out the front door. The two people who had been working in the basement with her fled at the same time; they were the only other people in the house. They drove to their home, which was just a couple of blocks away, to call the fire department, while Mrs. Baker, her sandals slipping on the ice, ran from house to house until she found one in which someone was at home. That person, a babysitter, called the Lawrence Township fire department. The call was placed between one and four minutes after Mrs. Baker triggered the alarm in her house. We must give the plaintiff the benefit of the doubt (her case having been dismissed on a motion for summary judgment) and therefore assume that it was four minutes, in which event, as we are about to see, the township fire department received the babysitter's call no earlier than it received the call from Honeywell's central station. (If the call had been received much earlier, the plaintiff's complaint about Honeywell's delay might be academic.)

The signals from the Bakers' house had come into the central station at 2:54 p.m., triggering an audible alarm. The alarm monitor, hearing it, had pressed a function key, causing the relevant information about the Bakers to flash on the screen of her computer. The display told her to call the Indianapolis Fire Department (Honeywell's [486] policy, if both the police and the fire signals are transmitted by the alarm system, is to call only the fire department). So she pushed the "direct fire button" to the Indianapolis Fire Department, connecting her immediately with the department's dispatcher. She gave the dispatcher the Bakers' address. The dispatcher told her that it was within the jurisdiction of a different fire department, that of the City of Lawrence, to which the dispatcher transferred the call. That was wrong too. It was the fire department of Lawrence Township that had jurisdiction over the Bakers' house. So the dispatcher for the City of Lawrence transferred the call that had been relayed to the City of Lawrence's fire department.

Had Honeywell's operator called the township's fire department first, rather than reaching that department as it were on the third try, it would have taken no more than 45 seconds for the department to learn of the fire at the Bakers' house. Because of the jurisdictional error, it was not until 2:58 that the department received the call. The 45 seconds had been stretched to four minutes because of the misinformation in Honeywell's computer. The plaintiff claims, and for purposes of this appeal we accept, that Honeywell was careless in not having a procedure for verifying and updating such essential information as which fire department to call in the event of a fire in a subscriber's premises, since the boundaries between fire districts are shifted from time to time.

A Lawrence Township fire chief arrived at the scene at 3:00 p.m. (This was remarkably prompt, the call having come in only two minutes earlier. But the Bakers' residence was only a mile or a mile and a half from the firehouse. This shows by the way the importance of notifying the right fire department.) He saw dark smoke but no flames. Mrs. Baker was there and told him that she thought her furnace had exploded. The chief did not ask her when the fire had started but assumed that, because Mrs. Baker had been at home, she had notified the fire department immediately. This implied that the fire was less than three minutes old. Five minutes later, at 3:05 p.m., two parties of firemen began leading hoses into the house, entering through the front door and the garage (which was on the side of the house) respectively. The floor was hot to the touch (firemen customarily enter a burning building on all fours because smoke and heat rise), and the group that had entered through the front door quickly withdrew, fearing that the floor would collapse. The smoke thickened. Fire was seen darting from the roof. Edwards, an experienced fireman, was one of two men who had entered the house from the garage. Sometime between 3:10 and 3:15, before he could withdraw from the house, the floor collapsed and he fell into the basement and was asphyxiated.

The house was severely damaged by the fire, and the Bakers have since moved to another house. They no longer subscribe to Honeywell's alarm service.

We may assume that the firemen would have arrived a little more than three minutes earlier (to be exact, four minutes minus 45 seconds earlier) had Honeywell's call gone to the right fire department directly rather than having to be relayed. Whether fireman Edwards' life would have been saved is obviously a highly speculative question. Robinson v. Southern New England Tel. Co., 140 Conn. 414, 101 A.2d 491, 493 (1953); Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227, 232 (Fla.App.1960). It depends on what the firemen would have done with the extra three minutes and 15 seconds. If they would have brought the fire under control in that time, then the floor might not have collapsed. But if at the end of that period they would still have been laying their hoses (no water had yet been applied to the fire when the firemen withdrew and the floor collapsed), the floor would have collapsed just as it did and Edwards would have been killed just as he was. Absence of evidence that the delay of which the plaintiff complains made any difference to Edwards' fate was not, however, the ground on which the district judge dismissed the suit. Nor does Honeywell urge it as an alternative ground for affirming the judgment.

Honeywell does urge a related alternative ground, that Edwards would have been killed even if the Bakers hadn't had an alarm system at all, since in its absence it would surely [487] have taken Mrs. Baker four minutes to reach the fire department, the time she took (by the plaintiff's own estimate) to reach the neighbor's house and get the babysitter to call. This is not so clear as Honeywell makes out. Before fleeing the house, Mrs. Baker pressed the alarm buttons. Had there been no alarm buttons, she might have redialed 911. (She knew her mistake. She had dialed 1911.) This is the theory on which a rescuer is required to act nonnegligently even if he was not obliged to attempt the rescue in the first place: his effort may have deflected alternative attempts at rescue, here a more determined use of the phone. Jackson v. City of Joliet, 715 F.2d 1200, 1202-03 (7th Cir.1983); Abresch v. Northwestern Bell Tel. Co., 246 Minn. 408, 75 N.W.2d 206 (1956). The principle is illustrated by the well-known Stewart case, where a railroad by stationing a watchman at a crossing induced reliance on his presence and was held liable for an accident that would have been prevented had he been present, even though due care did not require the railroad to have a watchman at that crossing in the first place. Erie R.R. v. Stewart, 40 F.2d 855 (6th Cir. 1930). Stewart is not an Indiana case, but its principle is accepted in Indiana. Runde v. Vigus Realty, Inc., 617 N.E.2d 572 (Ind.App. 1993); Richardson v. Gallo Equipment Co., 990 F.2d 330, 332 (7th Cir.1993) (applying Indiana law); Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 967 (7th Cir.1983) (ditto).

To bolster its position on causation, Honeywell argues that if it had really screwed up, so that the fire department hadn't arrived on the scene until the fire was visibly raging, none of the firemen would have dared enter the house and so Edwards would have been saved. The argument in effect is that alarm systems endanger firemen, so the provider of a system that works badly or not at all should be rewarded by being excused from liability. It is a strange argument even if its premise is granted, which it should not be. Fire departments want to be summoned as soon, not as long, after a fire has started as possible, because in general though not in every case large fires are more dangerous than small ones and fires are more likely to be large the longer they are allowed to burn out of control, although of course at some point a fire will burn itself out and thus cease to be dangerous. (It would be some fire department that thought the best time to fight fires was after they had burned themselves out.) Honeywell's bad argument was invited by the plaintiff's bad argument — an argument supported by the fire chief's affidavit but still preposterous — that a fire doubles every five minutes. There is no such law of nature. (Which doesn't mean it has never been recited in a judicial opinion. See ITT Terryphone Corp. v. Tri-State Steel Drum, Inc., 178 Ga. App. 694, 344 S.E.2d 686, 689 (1986). Contra, Lebanon, Louisville & Lexington Tel. Co. v. Lanham Lumber Co., 131 Ky. 718, 115 S.W. 824, 826 (1909).) The rate at which a fire grows depends on environmental conditions, such as the flammability of the materials set on fire and of those within reach of the flames, the amount of oxygen in the air, the air temperature, and whether the air is moving or still. It is impossible to say a priori whether if the firemen had arrived several minutes later the fire would have grown to a size that would have deterred them from entering the house.

As the premise of our further discussion, we may assume without having to decide not only that Honeywell breached its duty of care to the Bakers by not updating the information in its computer on which fire department to call if the Bakers' house caught on fire, but also that as a consequence of this breach fireman Edwards died. We are speaking of a tort duty of care founded on the reasoning underlying the rescue cases, not a contractual duty; there is no suggestion that Edwards was a third-party beneficiary of the contract between Honeywell and the Browns.

The question we must decide, therefore, is whether Honeywell's duty of care extended to firemen who might be summoned to fight the blaze, for, if not, the plaintiffs suit was properly dismissed. Why duty should be an issue in a negligence case is not altogether clear, however, and the quest for an answer may guide us to a decision.

[488] Nowadays one tends to think of negligence, even when one is a lawyer or judge thinking about the legal rather than the lay term, as a synonym for carelessness. But originally negligence signified carelessness only in the performance of a duty, whether a duty arising from an undertaking (for example that of a surgeon) or a duty imposed by law, such as an innkeeper's duty to look after his guests' goods. It was not until the nineteenth century that a general principle of liability for the careless infliction of harm was securely established. J.H. Baker, An Introduction to English Legal History 467-76 (3d ed. 1990). But as liability for negligence expanded, the judges felt a need to place limitations on its scope and to rein in juries, and the concept of duty was revived to name some of these limitations and to exert some control over juries. Negligence was redefined as the breach of a duty running from the injurer to the injurer's victim to exercise due care, and the question whether there was such a duty in the particular case or class of cases was, and remains, a matter for the judge to decide, not the jury. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991); Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701, 706 (1974); Czarnecki v. Hagenow, 477 N.E.2d 964, 967 (Ind.App.1985). Admittedly these are state cases and the procedures applied in federal court, even when federal jurisdiction is based solely on diversity of citizenship, are federal. The distinction between substance and procedure is, however, notably obscure, and with regard to ostensibly procedural rules that seem likely to affect behavior outside the litigation process itself (the parol evidence rule is a good example) the tendency is for the federal court to treat the rule as one of substance in order to avoid subjecting people to conflicting rules, and therefore apply state law. E.g., AM International, Inc. v. Graphic Management Associates, Inc., 44 F.3d 572, 576 (7th Cir.1995); Coplay Cement Co. v. Willis & Paul Group, 983 F.2d 1435, 1438 (7th Cir.1993). Federal courts in diversity cases have almost always treated the issue whether there is a duty of care as one of law, and have done so on the authority of state cases without even considering the possibility that the issue might actually be governed by federal law. E.g., Trevino v. Union Pacific R., 916 F.2d 1230, 1235 (7th Cir.1990); Ross v. United States, 910 F.2d 1422, 1427 (7th Cir.1990); LaMontagne v. E.I. Du Pont De Nemours & Co., 41 F.3d 846, 856 (2d Cir.1994); Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1114 (11th Cir.1992); but cf. Marshall v. Perez Arzuaga, 828 F.2d 845, 848-49 (1st Cir.1987). The parties to our case do not quarrel with this approach; nor is there any reason to suppose that if federal law governed, the federal rule would be different from the rule that, so far as we are aware, prevails in every state — the rule that makes the issue of duty one of law. There is no occasion to explore the issue further in this case, and we can turn back to the issue of the scope of the tort duty of care under the common law of Indiana.

Should a passerby be liable for failing to warn a person of a danger? The courts thought not, and therefore said there is no tort duty to rescue. Even if the defendant had acted irresponsibly or even maliciously in failing to warn or rescue the passerby — suppose, for example, the defendant had been aware of the danger to the plaintiff and could have warned him at negligible cost — the plaintiff could not obtain damages. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Osterlind v. Hill, 263 Mass. 73, 160 N.E. 301 (1928); Handiboe v. McCarthy, 114 Ga.App. 541, 151 S.E.2d 905 (1966). This limitation on the scope of the duty of care has stood but others have fallen by the wayside in most or all states, such as the nonduty of care of a manufacturer to users of his defective products other than the first purchaser, Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402 (Ex. 1842), the nonduty of care of an accountant to persons who rely on his audit report but have no contractual relation with him, Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931) (Cardozo, J.), and the nonduty of care of railroads in avoiding fire damage to anyone other than the owner of buildings or other property actually struck by the railroad's sparks, as opposed to owners of property to which the fire that had been started by those sparks spread. Ryan v. N.Y. Central R.R., 35 N.Y. 210 (1866).

[489] Of particular relevance to the present case are two lines of precedent. Indeed the present case could be said to lie at their intersection. One concerns the duty of care to an unforeseeable victim. The classic case is Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928) (Cardozo, J.). The defendant's employees, in attempting to help a passenger aboard a moving train, dislodged his package. The package, which unbeknownst to the railroad's employees contained fireworks, fell on the tracks, and exploded when the passenger car that the jostled passenger had just entered, minus his package, rolled over it. The explosion damaged the platform and injured people standing on it, including the plaintiff. The carelessness of the railroad's employees had foreseeably imperiled the passenger attempting to board the train (and his property), but not Mrs. Palsgraf, who was standing on the platform at some unknown distance from the car, waiting for another train. The court held that the railroad had breached no duty of care to her. The Indiana courts accept Palsgraf's exclusion of liability to unforeseeable victims. Webb v. Jarvis, supra, 575 N.E.2d at 997; Fawley v. Martin's Supermarkets, Inc., 618 N.E.2d 10, 13 (Ind.App.1993); Northern Indiana Public Service Co. v. Sell, 597 N.E.2d 329, 332 (Ind.App.1992); Thiele v. Faygo Beverage, Inc., 489 N.E.2d 562, 574 n. 4 (Ind.App.1986). So if fireman Evans was an unforeseeable victim of Honeywell's negligence, this suit must fail.

The other line of cases concerns the duty of care of water companies, telephone companies, and other providers of services of the public utility type — today including alarm services — to the general public as opposed to customers. Again the most famous cases are Judge Cardozo's. H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 (1928), held that a company which had contracted to supply water to a city and its residents was not liable for the consequences of a fire that the fire department was unable to bring under control (with resulting damage to the plaintiff's property) because the water company failed through carelessness to maintain adequate pressure in the water mains. Kerr S.S. Co. v. Radio Corp. of America, 245 N.Y. 284, 157 N.E. 140 (1927), held that careless failure to transmit the plaintiffs telegram, a failure that caused the plaintiff to lose a valuable contract, was not a tortious wrong to the plaintiff. Cf. EVRA Corp. v. Swiss Bank Corp., 673 F.2d 951 (7th Cir.1982). Telegraph companies have gone by the board. But there have been cases which hold that telephone companies can be liable for fire damage resulting from an operator's failure to transmit a distress call, Abresch v. Northwestern Bell Tel. Co., supra; Jennings v. Southwestern Bell Tel. Co., 307 S.W.2d 464 (Mo.1957); Adams v. Carolina Tel. & Tel. Co., 59 N.C.App. 687, 297 S.E.2d 785 (1982) — and an equal number of cases rejecting such liability. Mentzer v. New England Tel. & Tel. Co., 276 Mass. 478, 177 N.E. 549 (1931); Foss v. Pacific Tel. & Tel. Co., 26 Wash.2d 92, 173 P.2d 144 (1946); Southwestern Bell Tel. Co. v. Norwood, 212 Ark. 763, 207 S.W.2d 733 (1948).

We do not know the standing of the public utility cases in Indiana law. The courts of Indiana recognize as do all common law courts the duty limitation on tort liability, but they pitch the criterion for it at so high a level of generality, see, e.g., Webb v. Jarvis, supra, 575 N.E.2d at 997, that their position on those cases cannot be inferred from it. Other states do not have crisper formulations. See, e.g., Widlowski v. Durkee Foods, 138 Ill.2d 369, 150 Ill.Dec. 164, 166, 562 N.E.2d 967, 999 (1990). The matter may not lend itself to precise verbal formation. Even so, if the rest of the states were in agreement on the scope of the limitation with respect either to a case such as the present one or to the class of cases illustrated by Moch and Kerr, we could assume that Indiana would fall into line. They are not. The principle of these cases is accepted in some jurisdictions, rejected in others. Compare White v. Southern California Edison, 25 Cal.App.4th 442, 30 Cal.Rptr.2d 431 (1994), and Turbe v. Government of Virgin Islands, 938 F.2d 427, 432-33 (3d Cir.1991), with Long v. District of Columbia, 820 F.2d 409, 418 (D.C.Cir.1987), and Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585, 596-98 (1982). The split is mirrored in the cases closest to the present one — cases involving the liability of alarm services to noncustomers (none of them, however, [490] firemen, policemen, or other rescue workers) for the consequences of the service's negligence. Compare Elizabeth E. v. ADT Security Systems West, Inc., 108 Nev. 889, 839 P.2d 1308 (1992) (per curiam), and Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill.2d 378, 98 Ill.Dec. 1, 493 N.E.2d 1022 (1986), with New Focus Sportswear, Inc. v. P.J. Fabrico, Inc., 167 A.D.2d 175, 561 N.Y.S.2d 570 (1990), and Hill v. Sonitrol of Southwestern Ohio, Inc., 36 Ohio St.3d 36, 521 N.E.2d 780, 783-84 (1988). There are no Indiana cases concerning the liability of alarm services to noncustomers.

The basic criticism of both the Palsgraf and Moch-Kerr lines of decisions, articulated with characteristic force by Judge Friendly in Petition of Kinsman Transit Co., 338 F.2d 708, 721-26 (2d Cir.1964), is that since by assumption the defendant was careless (for the concept of duty would have no liability-limiting function otherwise), why should its carelessness be excused merely because either the particular harm that occurred as a consequence, or the person harmed as a consequence, was unforeseeable? If the Long Island Railroad's employees had avoided jostling the passenger carrying the bundle of fireworks, as due care required them to do, Mrs. Palsgraf would not have been injured. If the water company had kept up the pressure, as it was contractually obligated to do, the fire would not have raged out of control. And if Honeywell had used due care in identifying the fire department with jurisdiction over a fire in the Bakers' house, Edwards (we are assuming for purposes of this appeal) would not have been killed. In none of these cases would the defendant, in order to prevent the injury of which the plaintiff was complaining, have had to exercise more care than it was required by law to exercise anyway.

The arguments on the other side, the arguments in favor of the duty limitation in these cases, are twofold. The first arises from the fact that a corporation or other enterprise does not have complete control over its employees, yet it is strictly liable under the principle of respondeat superior for the consequences of their negligent acts committed in the scope of their employment. It is not enough to say to the enterprise be careful and you have nothing to fear. The carelessness of its employees may result in the imposition of a crushing liability upon it. In order to know how many resources (in screening new hires and in supervising and disciplining workers after they are hired) to invest in preventing its employees from being careless, the employer must have some idea, some foresight, of the harms the employees are likely to inflict. Imposing liability for unforeseeable types of harm is unlikely, therefore, to evoke greater efforts at preventing accidents; it is likely merely to constitute the employer an insurer. The railroad in Palsgraf did not know that conductors who jostle boarding passengers pose a threat of injury by explosion to people standing elsewhere on the platform, and the water company in Moch did not know the likelihood of fires or the value of the property that might be damaged by them.

The second argument in favor of using the concept of duty to limit the scope of liability for careless acts, an argument relevant to Moch and Kerr though not to Palsgraf, is that the defendant may not be in the best position to prevent a particular class of accidents, and placing liability on it may merely dilute the incentives of other potential defendants. In most cases the best way to avert fire damage is to prevent the fire from starting rather than to douse it with water after it has started. The water company represents a second line of defense, and it has no control over the first. It cannot insist that people not leave oil-soaked rags lying about or that they equip their houses and offices with smoke detectors and fire extinguishers.

How far in general these arguments outweigh the consideration emphasized by Judge Friendly is a matter of fair debate; but they are especially powerful in this case, and remember that Indiana is a jurisdiction that follows Palsgraf. The provider of an alarm service not only has no knowledge of the risk of a fire in its subscribers' premises, and no practical ability to reduce that risk (though we suppose an alarm service like a fire insurer could offer a discount to people who installed smoke detectors in their premises); it also lacks knowledge of the risk of a [491] fire to firemen summoned to extinguish it. That risk depends not only on the characteristics of the particular premises but also on the particular techniques used by each fire department, the training and qualifications of the firemen, and the quality of the department's leadership. The alarm company knows nothing about these things and has no power to influence them.

The death of a fireman in fighting a residential fire appears to be a rare occurrence. And we have not been referred to a single case in which such a death was blamed on a malfunction, human or mechanical, in an alarm system. The problem of proving causation in such a case is, as we saw, a formidable one, and the plethora of potential defendants makes it difficult (we should think) for an alarm company to estimate its likely liability even if it does foresee the kind of accident that occurred here. If "unforeseeable" is given the practical meaning of too unusual, too uncertain, too unreckonable to make it feasible or worthwhile to take precautions against, then this accident was unforeseeable. Mang v. Palmer, 557 So.2d 973, 975 (La.App. 1990). Honeywell would have difficulty figuring out how careful it must be in order to satisfy its legal obligations or how much more it ought to charge its subscribers in order to cover its contingent liability to firemen and to any others who might be injured in a fire of which the alarm company failed to give prompt notice. Similar problems of debilitating legal uncertainty would arise if the person injured were a police officer or a paramedic rather than a firefighter.

The alarm service constitutes, moreover, not a first or second line of defense against fire but a third line of defense — and in this case possibly a fourth, fifth, or ... nth. The first is the homeowner. We do not know why the Bakers' furnace exploded — whether it was because of a defect in the furnace or a failure by the Bakers or others to inspect or maintain it properly. The second line of defense is the fire department. Potential defendants in this case included not only the alarm service and the fire department (though presumably the plaintiff's only remedy against the department would be under Indiana's public employees' compensation law), but the Bakers, the manufacturer of the furnace, any service company that inspected or maintained the furnace, possibly even the supplier of the wood for the floor that collapsed or the architect or builder of the house. The plaintiff has chosen to sue only the alarm service. Of course none of the others may be negligent. And if any of the others are, conceivably the alarm service might implead them so that liability could come to rest on the most culpable. Yet it is also possible that the principal attraction of the alarm service as a defendant is that it is a large out-of-state firm with deep and well-lined pockets. We can only speculate. All things considered, however, the creation of a duty of care running from the alarm service to Edwards is likely to make at best a marginal contribution to fire safety and one outweighed by the cost of administering such a duty. That at least is our best guess as to how the Supreme Court of Indiana would evaluate this case were it before that court.

Pointing to the $250 limitation of the alarm service's liability to the Bakers, the plaintiff argues that if Honeywell prevails in this suit, alarm services will have no incentive to take care. But they will. Honeywell lost the Bakers' business. Our society relies more heavily on competition than on liability to optimize the quality of the goods and services supplied by the private sector of the economy. A case such as this does Honeywell's customer relations no good even if it wins the case — as we think it must.

The district court did not consider another alternative ground urged by Honeywell for the dismissal of the suit, that liability to fireman Edwards is barred by the "fireman's rule." The rule, in force in Indiana, Fox v. Hawkins, 594 N.E.2d 493 (Ind.App.1992); Kennedy v. Tri-City Comprehensive Community Mental Health Center, Inc., 590 N.E.2d 140 (Ind.App.1992), as well as in other states, see, e.g., Santangelo v. State, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770 (1988); Benefiel v. Walker, 244 Va. 488, 422 S.E.2d 773 (1992), is that a fireman (or a policeman or other public safety worker) injured as a consequence of the negligence of whoever caused the fireman to be summoned has no tort claim against that person. The [492] idea behind the rule is a bit elusive, but seems connected with the fact that the fire department does not charge victims of fire for the expense of putting out the fire, or with a sense that the victim of fire has suffered enough and ought not to be burdened with a suit, or a sense that the pay of firefighters reflects the hazards of their occupation — though those hazards might be fewer if the people who caused the hazards were liable to firemen injured as a consequence. Unclarity about the rationale of a rule makes its scope difficult to determine, creating uncertainty in this case whether it extends to an alarm company. The alarm company did not cause the fire department to be summoned except in the sense of providing a conduit through which Mrs. Baker summoned the fire department. The company could be regarded as her agent, and thus entitled to her immunity, or it could conceivably be regarded as a third party who inflicts injury after the fireman arrives on the scene; such injuries have been held to fall outside the fireman's rule, as in Lipson v. Superior Court, 31 Cal.3d 362, 182 Cal.Rptr. 629, 644 P.2d 822 (1982). We need not decide. Even if the fireman's rule is inapplicable, Honeywell was entitled to dismissal of the suit because it had no duty of care to firefighters engaged in fighting a fire on its customer's premise.

AFFIRMED.

928 P.2d 1202 (1996)

[1203] Mark A. Sandberg, Sandberg, Wuestenfeld & Corey, Anchorage, for Appellants.

Michael L. Lessmeier, Gregory W. Lessmeier, Lessmeier & Winters, Juneau, for Appellee.

Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

OPINION

PER CURIAM.

I. FACTS AND PROCEEDINGS

Esther Hunter-Lyons was killed when her Volkswagen van was struck broadside by a truck driven by David Jette and owned by Midnight Sun Transportation Services, Inc. When the accident occurred, Jette was driving south in the right-hand lane of Arctic Boulevard in Anchorage. Hunter-Lyons pulled out of a parking lot in front of him. Jette braked and steered to the left, but Hunter-Lyons continued to pull out further into the traffic lane. Jette's truck collided with Hunter-Lyons's vehicle. David Lyons, the deceased's husband, filed suit, asserting that Jette had been speeding and driving negligently.

At trial, conflicting testimony was introduced regarding Jette's speed before the collision. Lyons's expert witness testified that Jette may have been driving as fast as 53 miles per hour. Midnight Sun's expert testified that Jette probably had been driving significantly slower and that the collision could have occurred even if Jette had been driving at the speed limit, 35 miles per hour. Lyons's expert later testified that if Jette had stayed in his own lane, and had not steered to the left, there would have been no collision. Midnight Sun's expert contended that steering to the left when a vehicle pulls out onto the roadway from the right is a normal response and is generally the safest course of action to follow.

Over Lyons's objection, the jury was given an instruction on the sudden emergency doctrine.^[1] The jury found that Jette, in fact, had been negligent, but his negligence was not a legal cause of the accident. Lyons appeals, arguing that the court should not have given the jury the sudden emergency instruction.

II. ANALYSIS AND DISCUSSION

The sudden emergency doctrine is a rule of law which states that a person confronted with a sudden and unexpected peril, not resulting from that person's own negligence, is not expected to exercise the same [1204] judgment and prudence the law requires of a person in calmer and more deliberate moments. The person confronted with the imminent peril must, however, act as a reasonable person would under the same conditions. Beaumaster v. Crandall, 576 P.2d 988, 991 (Alaska 1978).

Lyons argues that it was error for the trial court to give the sudden emergency instruction to the jury in this case; that the sudden emergency instruction is never appropriate in an automobile accident case; and that the instruction is incompatible with Alaska's comparative negligence system of apportioning tort liability.

Midnight Sun maintains that the sudden emergency instruction was warranted by the facts and is not incompatible with the comparative fault system.

A. Any Error Was Harmless

We find that Lyons has little cause to complain of the sudden emergency instruction because the jury decided the issue in his favor. To the question "Was Midnight Sun's employee, David Jette, negligent?" the jury answered "YES." The jury finding of negligence indicates that the jury concluded David Jette was driving negligently or responded inappropriately when Ms. Hunter-Lyons entered the traffic lane and, thus, did not exercise the care and prudence a reasonable person would have exercised under the circumstances.

However, Lyons's claims were defeated on the basis of lack of causation. Although the jury found Jette to have been negligent, it also found that this negligence was not the legal cause of the accident. Duty, breach of duty, causation, and harm are the separate and distinct elements of a negligence claim, all of which must be proven before a defendant can be held liable for the plaintiff's injuries. See Alvey v. Pioneer Oil-field Servs., Inc., 648 P.2d 599, 600 (Alaska 1982) (listing elements of negligence in context of motion for summary judgment as duty, breach of duty, injury, and cause). The sudden emergency instruction addresses only the standard of care imposed on all people to act as a reasonable person would under the circumstances. The instruction could not have infected the jury's finding that Jette was not the legal cause of Ms. Hunter-Lyons's death.

Further, we cannot say that the jury's finding of lack of causation was unreasonable.^[2] There was evidence presented at trial from which the jury could reasonably have drawn the conclusion that even though Jette was driving negligently, his negligence was not the proximate cause of the accident. Midnight Sun introduced expert testimony to the effect that the primary cause of the accident was Ms. Hunter-Lyons's action in pulling out of the parking lot in front of an oncoming truck. Terry Day, an accident reconstruction specialist testified that, depending on how fast Ms. Hunter-Lyons was moving, the accident could have happened even if Jette had been driving within the speed limit. Midnight Sun also introduced expert testimony to the effect that Jette responded properly to the unexpected introduction of an automobile in his traffic lane. Although all of this testimony was disputed by Lyons, a reasonable jury could have concluded that Ms. Hunter-Lyons caused the accident by abruptly pulling out in front of an oncoming truck, and that David Jette's negligence was not a contributing factor.^[3] With the element of causation lacking, even the most egregious negligence cannot result in liability.

B. Sudden Emergency Instruction Disapproved

Although any possible error resulting from the use of the sudden emergency instruction [1205] was rendered harmless by the jury finding that Jette's negligence was not a legal cause of the accident, we take this opportunity to disapprove of the instruction's further use. It adds nothing to the established law that the duty of care, which all must exercise, is to act reasonably under the circumstances. The instruction is potentially confusing. Although we cannot say that the instruction is never appropriate, we discourage its employment. In support of this admonition, we offer the following background.

The sudden emergency doctrine arose as a method of ameliorating the, sometimes harsh, "all or nothing" rule in contributory negligence systems. For example, in Stokes v. Saltonstall, 38 U.S. 181, 13 Pet. 181, 10 L.Ed. 115 (1839), the United States Supreme Court approved the use of an early version of the sudden emergency instruction. Id. at 193. In that case, the plaintiff and his wife were injured while leaping from a careening coach piloted by a drunken driver. Id. at 182. The defendant claimed contributory negligence on the part of the plaintiffs which would have barred all recovery. Id. at 187-88. The court endorsed the doctrine wholeheartedly, stating:

[T]o enable the plaintiff to sustain the action it is not necessary that he should have been thrown off the coach; it is sufficient if he were placed by the misconduct of the defendant, in such a situation as obliged him to adopt the alternative of a dangerous leap, or to remain at certain peril; if that position was occasioned by the fault of the defendant, the action may be supported. On the other hand, if the plaintiff's act resulted from a rash apprehension of danger, which did not exist, and the injury which he sustained is to be attributed to rashness and imprudence, he is not entitled to recover.

Id. at 193.

Although the doctrine came out of the contributory negligence regime, there is nothing about it which is inherently incompatible with a comparative fault system. Comparative negligence is a method of apportioning liability for a particular accident among the various parties who have been deemed negligent. The sudden emergency doctrine, in turn, is an expression of the applicable standard of care against which particular actions are judged in order to determine whether they were negligent in character. The fault of one person, determined in the light of a sudden emergency instruction, can be compared to the fault of another person, whose negligence may have created the emergency, with no logical inconsistency. Other courts have rejected the contention that the instruction cannot be used in a jurisdiction which has adopted a system of comparative negligence. Young v. Clark, 814 P.2d 364, 368 (Colo. 1991); Weiss v. Bal, 501 N.W.2d 478, 481 (Iowa 1993) ("[W]e reject plaintiffs' argument that such an instruction has no place in a comparative fault scheme."); Ebach v. Ralston, 510 N.W.2d 604, 610 (N.D. 1994).

Although not inherently inconsistent with modern methods of apportioning liability, the sudden emergency instruction has, nevertheless, come under criticism, and some states have limited or abolished it. Reasoning that because the standard of care is expressed in terms of a reasonable person under the circumstances, several courts have concluded that the instruction is wholly redundant. Mississippi eliminated the instruction in Knapp v. Stanford, 392 So.2d 196 (Miss. 1980), because the court believed the instruction only served to obfuscate the operation of the comparative negligence statute, and was often interpreted as requiring a higher standard of proof for a finding of negligence. Id. at 198. The justices ruled that the wiser policy would be to apply the general rules of negligence to all situations, and the jury should be left to consider only what a reasonable person would have done under the circumstances of a given case. Id. at 199. Likewise, Nebraska's highest court found that the instruction served no useful purpose. In McClymont v. Morgan, 238 Neb. 390, 470 N.W.2d 768 (1991), the trial court refused to give the plaintiff's proposed instruction on the effect of an emergency. The supreme court affirmed, stating that the sudden emergency instruction gives undue emphasis to one aspect of the standard of care, and to one party's argument. Id. 470 N.W.2d at 770. The effect of the emergency on the standard of care might still be argued to the jury. Id.

[1206] Other courts, while not banning the instruction altogether, have strongly discouraged its use. Ellwood v. Peters, 182 So.2d 281 (Fla.App.), cert. denied, 188 So.2d 814 (Fla. 1966); DiCenzo v. Izawa, 68 Haw. 528, 723 P.2d 171 (1986); Keel v. Compton, 120 Ill. App.2d 248, 256 N.E.2d 848 (1970); Gagnon v. Crane, 126 N.H. 781, 498 A.2d 718 (1985); McKee v. Evans, 380 Pa.Super. 120, 551 A.2d 260, app. denied, 522 Pa. 600, 562 A.2d 824 (1988).

Several courts have forbidden giving the instruction in automobile accident cases. Montana's supreme court, in Simonson v. White, 220 Mont. 14, 713 P.2d 983 (1986), found no reason to give the sudden emergency instruction in an automobile accident case stating that the instruction adds nothing to the applicable law in any negligence case, that a driver must exercise due care under the circumstances, and that it tends to leave jurors with the impression that an emergency somehow excuses the driver from the ordinary standard of care. Id. 713 P.2d at 989. An Oregon court has also expressed reservations about the use of the instruction in automobile cases. Templeton v. Smith, 88 Or. App. 266, 744 P.2d 1325 (1987), review denied, 305 Or. 45, 749 P.2d 1182 (1988).^[4]

In Finley v. Wiley, 103 N.J. Super. 95, 246 A.2d 715 (App.Div. 1968), a New Jersey court stated it "entertain[ed] grave doubt as to whether a sudden emergency charge should ever be given in an ordinary automobile accident case." Id. 246 A.2d at 719. The Finley court felt that the unexpected hazards of driving are, in fact, to be expected. Id. Quoting Prosser, Torts, pp. 172-73 (3d ed. 1964) it said, "[U]nder present day traffic conditions, any driver of an automobile must be prepared for the sudden appearance of obstacles in the street...." See also Paiva v. Pfeiffer, 229 N.J. Super. 276, 551 A.2d 201, 204-05 (App.Div. 1988).

We believe that the sudden emergency instruction is a generally useless appendage to the law of negligence. With or without an emergency, the standard of care a person must exercise is still that of a reasonable person under the circumstances. With or without the instruction, parties are still entitled to present evidence at trial which will establish what the circumstances were, and are also entitled to argue to the jury that they acted as a reasonable person would have in light of those circumstances. Thus, barring circumstances that we cannot at the moment hypothesize, a sudden emergency instruction serves no positive function. Further, the instruction may cause confusion by appearing to imply that one party is less blameworthy than the other. Therefore, we hold that it should not be used unless a court finds that the particular and peculiar facts of a case warrant more explanation of the standard of care than is generally required.

III. CONCLUSION

Based on the above, we conclude that any error in giving the instruction was harmless. However, given the redundancy of the instruction and its potential for sowing confusion, we discourage its use in future cases.

AFFIRMED.

[1] Jury Instruction # 17 read in its entirety:

Midnight Sun claims that it is not liable for plaintiffs' harm because David Jette acted with reasonable care in an emergency situation.

In an emergency, a person is not expected or required to use the same judgment and care that is required in calmer and more deliberate moments. If, in an emergency, a person acts as a reasonably careful person would act in a similar emergency, there is no negligence even though afterwards it might appear that a different course of action would have been better and safer.

For Midnight Sun to win on this claim, you must decide that it is more likely true than not true that:

1. there was an emergency situation which was a sudden and unexpected peril presenting actual or apparent imminent danger to someone;

2. David Jette did not cause the emergency; and

3. David Jette acted as a reasonably careful person would have acted in similar circumstances.

If you do not find all of these three facts, then you should decide whether Midnight Sun was negligent on the basis of the other instructions.

[2] We will not overturn a jury's factual finding if the evidence reasonably supports it. Nome 2000 v. Fagerstrom, 799 P.2d 304, 310 n. 8 (Alaska 1990).

[3] See, e.g., Berry v. Sugar Notch Borough, 191 Pa. 345, 43 A. 240 (1899) (There, a motorman was injured when a tree fell on a train car during a wind storm. The motorman was admittedly driving faster than allowed by ordinance, but except for placing the car at the exact spot where the tree would fall at the exact time it fell, speed had nothing to do with causing the accident.). See also Dombeck v. Chicago, M., St. P. & P.R. Co., 24 Wis.2d 420, 129 N.W.2d 185, 192-93 (1964).

[4] But cf. Rambo v. McCulloch, 90 Or. App. 392, 752 P.2d 347 (1988) (even though instruction should be avoided, it is not error to give it under appropriate circumstances).

99 Wn.2d 609 (1983)
664 P.2d 474

[610] Leonard W. Schroeter and Janet Lane Eaton (of Schroeter, Goldmark & Bender), for appellant.

Williams, Lanza, Kastner & Gibbs, Joel D. Cunningham, and Mary H. Spillane, for respondent.

Bryan P. Harnetiaux and Robert H. Whaley on behalf of Washington Trial Lawyers Association, amici curiae for appellant.

DORE, J.

This appeal raises the issue of whether an estate can maintain an action for professional negligence as a result of failure to timely diagnose lung cancer, where the estate can show probable reduction in statistical chance for survival but cannot show and/or prove that with timely diagnosis and treatment, decedent probably would have lived to normal life expectancy.

Both counsel advised that for the purpose of this appeal we are to assume that the respondent Group Health Cooperative of Puget Sound and its personnel negligently failed to diagnose Herskovits' cancer on his first visit to the hospital and proximately caused a 14 percent reduction in his chances of survival. It is undisputed that Herskovits had [611] less than a 50 percent chance of survival at all times herein.

The main issue we will address in this opinion is whether a patient, with less than a 50 percent chance of survival, has a cause of action against the hospital and its employees if they are negligent in diagnosing a lung cancer which reduces his chances of survival by 14 percent.

The personal representative of Leslie Herskovits' estate initiated this survivorship action against Group Health Cooperative of Puget Sound (Group Health), alleging failure to make an early diagnosis of her husband's lung cancer. Group Health moved for summary judgment for dismissal on the basis that Herskovits probably would have died from lung cancer even if the diagnosis had been made earlier, which the trial court granted.

I

The complaint alleged that Herskovits came to Group Health Hospital in 1974 with complaints of pain and coughing. In early 1974, chest X-rays revealed infiltrate in the left lung. Rales and coughing were present. In mid-1974, there were chest pains and coughing, which became persistent and chronic by fall of 1974. A December 5, 1974, entry in the medical records confirms the cough problem. Plaintiff contends that Herskovits was treated thereafter only with cough medicine. No further effort or inquiry was made by Group Health concerning his symptoms, other than an occasional chest X-ray. In the early spring of 1975, Mr. and Mrs. Herskovits went south in the hope that the warm weather would help. Upon his return to the Seattle area with no improvement in his health, Herskovits visited Dr. Jonathan Ostrow on a private basis for another medical opinion. Within 3 weeks, Dr. Ostrow's evaluation and direction to Group Health led to the diagnosis of cancer. In July of 1975, Herskovits' lung was removed, but no radiation or chemotherapy treatments were instituted. Herskovits died 20 months later, on March 22, 1977, at the age of 60.

At hearing on the motion for summary judgment, plaintiff [612] was unable to produce expert testimony that the delay in diagnosis "probably" or "more likely than not" caused her husband's death. The affidavit and deposition of plaintiff's expert witness, Dr. Jonathan Ostrow, construed in the most favorable light possible to plaintiff, indicated that had the diagnosis of lung cancer been made in December 1974, the patient's possibility of 5-year survival was 39 percent. At the time of initial diagnosis of cancer 6 months later, the possibility of a 5-year survival was reduced to 25 percent. Dr. Ostrow testified he felt a diagnosis perhaps could have been made as early as December 1974, or January 1975, about 6 months before the surgery to remove Mr. Herskovits' lung in June 1975.

Dr. Ostrow testified that if the tumor was a "stage 1" tumor in December 1974, Herskovits' chance of a 5-year survival would have been 39 percent. In June 1975, his chances of survival were 25 percent assuming the tumor had progressed to "stage 2". Thus, the delay in diagnosis may have reduced the chance of a 5-year survival by 14 percent.

Dr. William Spence, one of the physicians from Group Health Hospital who cared for the deceased Herskovits, testified that in his opinion, based upon a reasonable medical probability, earlier diagnosis of the lung cancer that afflicted Herskovits would not have prevented his death, nor would it have lengthened his life. He testified that nothing the doctors at Group Health could have done would have prevented Herskovits' death, as death within several years is a virtual certainty with this type of lung cancer regardless of how early the diagnosis is made.

Plaintiff contends that medical testimony of a reduction of chance of survival from 39 percent to 25 percent is sufficient evidence to allow the proximate cause issue to go to the jury. Defendant Group Health argues conversely that Washington law does not permit such testimony on the issue of medical causation and requires that medical testimony must be at least sufficiently definite to establish that the act complained of "probably" or "more likely than not" [613] caused the subsequent disability. It is Group Health's contention that plaintiff must prove that Herskovits "probably" would have survived had the defendant not been allegedly negligent; that is, the plaintiff must prove there was at least a 51 percent chance of survival.

Pursuant to CR 56(c), summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. All reasonable inferences from the evidence must be resolved against the moving party, and in favor of the nonmoving party. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 588 P.2d 1346 (1979).

II

This court has held that a person who negligently renders aid and consequently increases the risk of harm to those he is trying to assist is liable for any physical damages he causes. Brown v. MacPherson's, Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975). In Brown, the court cited Restatement (Second) of Torts § 323 (1965), which reads:

One who undertakes ... to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, ...

This court heretofore has not faced the issue of whether, under section 323(a), proof that the defendant's conduct increased the risk of death by decreasing the chances of survival is sufficient to take the issue of proximate cause to the jury. Some courts in other jurisdictions have allowed the proximate cause issue to go to the jury on this type of proof. See McBride v. United States, 462 F.2d 72 (9th Cir.1972); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508 (1974); Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970); Hicks v. United States, 368 F.2d 626 (4th Cir.1966). These courts emphasized the fact that defendants' [614] conduct deprived the decedents of a "significant" chance to survive or recover, rather than requiring proof that with absolute certainty the defendants' conduct caused the physical injury. The underlying reason is that it is not for the wrongdoer, who put the possibility of recovery beyond realization, to say afterward that the result was inevitable. See also Wolfstone & Wolfstone, Recovery of Damages for the Loss of a Chance, Pers. Inj. Ann. 744 (1978).

Other jurisdictions have rejected this approach, generally holding that unless the plaintiff is able to show that it was more likely than not that the harm was caused by the defendant's negligence, proof of a decreased chance of survival is not enough to take the proximate cause question to the jury. Cooper v. Sisters of Charity, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971); Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (Ct. App. 1980); Hanselmann v. McCardle, 275 S.C. 46, 267 S.E.2d 531 (1980); Cornfeldt v. Tongen, 295 N.W.2d 638 (Minn. 1980). These courts have concluded that the defendant should not be liable where the decedent more than likely would have died anyway.

The ultimate question raised here is whether the relationship between the increased risk of harm and Herskovits' death is sufficient to hold Group Health responsible. Is a 36 percent (from 39 percent to 25 percent) reduction in the decedent's chance for survival sufficient evidence of causation to allow the jury to consider the possibility that the physician's failure to timely diagnose the illness was the proximate cause of his death? We answer in the affirmative. To decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence.

III

We are persuaded by the reasoning of the Pennsylvania Supreme Court in Hamil v. Bashline, supra. While Hamil involved an original survival chance of greater than 50 percent, we find the rationale used by the Hamil court to [615] apply equally to cases such as the present one, where the original survival chance is less than 50 percent. The plaintiff's decedent was suffering from severe chest pains. His wife transported him to the hospital where he was negligently treated in the emergency unit. The wife, because of the lack of help, took her husband to a private physician's office, where he died. In an action brought under the wrongful death and survivorship statutes, the main medical witness testified that if the hospital had employed proper treatment, the decedent would have had a substantial chance of surviving the attack. The medical expert expressed his opinion in terms of a 75 percent chance of survival. It was also the doctor's opinion that the substantial loss of a chance of recovery was the result of the defendant hospital's failure to provide prompt treatment. The defendant's expert witness testified that the patient would have died regardless of any treatment provided by the defendant hospital.

The Hamil court reiterated the oft-repeated principle of tort law that the mere occurrence of an injury does not prove negligence, but the defendant's conduct must be a proximate cause of the plaintiff's injury. The court also referred to the traditional "but for" test, with the qualification that multiple causes may culminate in injury. Hamil, at 266.

The court then cited Restatement (Second) of Torts § 323 (1965) as authority to relax the degree of certitude normally required of plaintiff's evidence in order to make a case for the jury. The court held that once a plaintiff has introduced evidence that a defendant's negligent act or omission increased the risk of harm to a person in plaintiff's position, and that the harm was in fact sustained, "it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm". Hamil, at 269. See also C. McCormick, Damages § 31 (1935); Wolfstone & Wolfstone, supra at 744.

The Hamil court distinguished the facts of that case from the general tort case in which a plaintiff alleges that a [616] defendant's act or omission set in motion a force which resulted in harm. In the typical tort case, the "but for" test, requiring proof that damages or death probably would not have occurred "but for" the negligent conduct of the defendant, is appropriate. In Hamil and the instant case, however, the defendant's act or omission failed in a duty to protect against harm from another source. Thus, as the Hamil court noted, the fact finder is put in the position of having to consider not only what did occur, but also what might have occurred. Hamil states at page 271:

Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, Section 323(a) tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof.

(Footnote omitted.) The Hamil court held that once a plaintiff has demonstrated that the defendant's acts or omissions have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant harm.

In Hicks v. United States, supra, the Court of Appeals set forth the rationale for deviation from the normal requirements of proof in a case such as the one presently before us. The following quotation from Hicks, at 632, is frequently cited in cases adopting loss of a chance because it succinctly defines the doctrine:

Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.

Under the Hamil decision, once a plaintiff has demonstrated that defendant's acts or omissions in a situation to [617] which section 323(a) applies have increased the risk of harm to another, such evidence furnishes a basis for the fact finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm. The necessary proximate cause will be established if the jury finds such cause. It is not necessary for a plaintiff to introduce evidence to establish that the negligence resulted in the injury or death, but simply that the negligence increased the risk of injury or death. The step from the increased risk to causation is one for the jury to make. Hamil, at 272.

In Jeanes v. Milner, supra, the plaintiff mother brought a malpractice action for the death of her child from throat cancer, claiming delayed diagnosis of 1 month caused a shortened life span and pain and suffering. The United States Court of Appeals for the Eighth Circuit, reversing a dismissal for insufficient evidence on the element of proximate cause, held at pages 604-05:

We cannot agree with the District Court's holding that "there is no evidence from which the jury could find that the delay of approximately one month in the transmission of [the] slides could have been the proximate cause of [Tommy's] failure to recover from his cancer, or to increase his pain and suffering or to shorten his life." Nor can we agree that the jury could "only find a verdict for the plaintiff based on speculation and conjecture."

...

The Supreme Court of the United States has spoken to a contention similar to that argued here by the doctors and the Infirmary. In Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916 (1946), the Court stated:

"It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference."

The recent case of James v. United States, 483 F. Supp. 581 (N.D. Cal. 1980) concerned the failure to diagnose and [618] promptly treat a lung tumor. The court concluded that the plaintiff sustained its burden of proof even without statistical evidence, stating at page 587:

As a proximate result of defendant's negligence, James was deprived of the opportunity to receive early treatment and the chance of realizing any resulting gain in his life expectancy and physical and mental comfort. No matter how small that chance may have been — and its magnitude cannot be ascertained — no one can say that the chance of prolonging one's life or decreasing suffering is valueless.

(Italics ours.)

Where percentage probabilities and decreased probabilities are submitted into evidence, there is simply no danger of speculation on the part of the jury. More speculation is involved in requiring the medical expert to testify as to what would have happened had the defendant not been negligent. McCormick, supra.

Chester v. United States, 403 F. Supp. 458, 460 (W.D. Pa. 1975) was a medical malpractice suit for negligent failure to diagnose and treat cancer of the esophagus. The court found that in November 1972, the decedent was exhibiting symptoms and complaints that were consistent with cancer. No tests were performed to determine what was causing the illness, and the court determined this was below the accepted medical standard of care. Further, the judge decided that the cancer was indeed present in November 1972, and could have been treated or resected before metastasis. The judge reasoned that, if there was a possibility that the decedent had carcinoma of the esophagus, the hospital doctors were negligent in treating him for hypertension only.

The Chester court then awarded damages of $45,988.10, including $36,741.10 for loss of earning power, $7,500 for the loss of guidance, etc., for his minor children, and $1,747 for funeral expenses. This damage award is consistent with our reasoning in Wooldridge v. Woolett, 96 Wn.2d 659, 638 P.2d 566 (1981) where we held that a decedent's shortened [619] life expectancy is not recoverable as a separate item of damages, but will be considered as it affects the loss of value of his future earning capacity.

CONCLUSION

Both counsel have agreed for the purpose of arguing this summary judgment that the defendants were negligent in failing to make a diagnosis of cancer on Herskovits' initial visit in December 1974, and that such negligence was the proximate cause of reducing his chances of survival by 14 percent. It is undisputed that Herskovits had less than a 50 percent chance of survival at that time. Based on this agreement and Dr. Ostrow's deposition and affidavit, a prima facie case is shown. We reject Group Health's argument that plaintiffs must show that Herskovits "probably" would have had a 51 percent chance of survival if the hospital had not been negligent. We hold that medical testimony of a reduction of chance of survival from 39 percent to 25 percent is sufficient evidence to allow the proximate cause issue to go to the jury.

Causing reduction of the opportunity to recover (loss of chance) by one's negligence, however, does not necessitate a total recovery against the negligent party for all damages caused by the victim's death. Damages should be awarded to the injured party or his family based only on damages caused directly by premature death, such as lost earnings and additional medical expenses, etc.

We reverse the trial court and reinstate the cause of action.

ROSELLINI, J., concurs.

PEARSON, J. (concurring)

I agree with the majority that the trial court erred in granting defendant's motion for summary judgment. I cannot, however, agree with the majority's reasoning in reaching this decision. The majority's reliance on Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978) and Hicks v. United States, 368 F.2d 626 (4th Cir.1966) is inappropriate for the reasons identified in the [620] dissent of Justice Dolliver. Moreover, the issue before us is considerably more complex than the apparently straightforward policy choice suggested by the interaction of the majority opinion and Justice Dolliver's dissent. I therefore agree with Justice Brachtenbach that those opinions fail to focus on the key issue. I decline to join Justice Brachtenbach's dissent, however, because the result he advocates is harsh, as he recognizes at page 642. In an effort to achieve a fair result by means of sound analysis, I offer the following approach.

This action began in July 1979 with a complaint alleging that defendant Group Health Cooperative had negligently treated the decedent Leslie Herskovits. Plaintiff, the widow of decedent Herskovits, alleged in this complaint that defendant's failure to diagnose the decedent's lung cancer "led to and caused his death". The complaint sought damages for the medical expenses, disability, and pain and suffering of the decedent, together with pecuniary loss suffered by plaintiff, including loss of support, affection, and consortium.

As discovery progressed, some undisputed facts were established. Mr. Herskovits had been a patient of the Group Health Cooperative for more than 20 years. In December 1974, he consulted a physician at Group Health for the treatment of a persistent cough. The physician prescribed cough medicine. Obtaining no relief from his cough, Mr. Herskovits consulted a physician outside Group Health, Dr. Jonathan Ostrow. Dr. Ostrow suspected that Mr. Herskovits had lung cancer, and recommended a medical procedure be undertaken to confirm his suspicions. The procedure was performed in June 1975, and revealed that Mr. Herskovits had cancer in the bronchus of his left lung. The lung was removed on July 1, 1975. Mr. Herskovits died of cancer on March 22, 1977, at the age of 60 years.

Defendant moved for summary judgment in May 1981, on the ground that plaintiff was unable to produce testimony that earlier diagnosis would probably have prevented Mr. Herskovits' death from cancer. The trial court granted [621] the motion and dismissed the action, holding that plaintiff had "failed to produce expert testimony which would establish that the decedent probably would not have died on or about March, 1977 but for the conduct of the defendant". This holding was based on the court's conclusion that "under Washington law the loss of a possibility of survival is not compensable".

Plaintiff's case was based on the testimony of the expert witness, Dr. Ostrow. This court's enquiry, therefore, is whether Dr. Ostrow's testimony, together with reasonable inferences therefrom, creates a prima facie issue of causation. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 588 P.2d 1346 (1979). The critical testimony of Dr. Ostrow, from his affidavit and deposition, may fairly be summarized as follows:

1. There is a reasonable medical probability that defendant failed to take necessary steps to diagnose Mr. Herskovits' condition, and defendant therefore failed to meet the appropriate standard of care.

2. Had reasonable care been exercised, Mr. Herskovits' cancer could have been diagnosed in December 1974 instead of June 1975.

3. Unless removed, a cancerous tumor can be expected to increase in size over time, and the patient's chances of survival decline accordingly.

4. There is no way of knowing how far the tumor in Mr. Herskovits' lung had developed by December 1974.

5. If the tumor had been a stage 1 tumor in December 1974, decedent's statistical chance of surviving 5 years was 39 percent.

6. When the tumor was discovered in June 1975, it was a stage 2 tumor. The statistical chance of surviving 5 years when the tumor has reached stage 2 is 25 percent.

7. Dr. Ostrow summed up his opinion as follows: "By failing to properly evaluate Mr. Herskovits' condition as late as December 1974, Group Health probably caused Mr. Herskovits' chance for long-term survival to be substantially reduced".

[622] Dr. Ostrow's testimony does not, therefore, establish a prima facie case that defendant's alleged negligence probably (or more likely than not) caused Mr. Herskovits' death. Rather, the testimony establishes only that the alleged negligence caused a substantial reduction in Mr. Herskovits' long-term chance of survival. Dr. Ostrow testified that if the tumor was at stage 1 in December 1974, the chance of survival was reduced from 39 percent to 25 percent. He did not, however, indicate the likelihood of the tumor's being at stage 1 in December 1974, either in terms of certainty, probability, or statistical chance. Therefore, the only indications from the record of the extent of the reduction in Mr. Herskovits' chance of long-term survival are that it was "substantial" and that it was at most a 14 percent reduction (from 39 percent to 25 percent).

I turn now to consider whether this testimony is sufficient to create a material issue whether defendant's alleged negligence was a proximate cause of harm to plaintiff.

Recently, we stated that

[p]roximate cause must be established by, first, a showing that the breach of duty was a cause in fact of the injury, and, second, a showing that as a matter of law liability should attach.... Cause in fact can be established by proving that but for the breach of duty, the injury would not have occurred.

Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 476, 656 P.2d 483 (1983). In the present case, we must determine whether cause in fact has been established.

In medical malpractice cases such as the one before us, cause in fact must usually be established by expert medical testimony, and must be established beyond the balance of probabilities.

In a case such as this, medical testimony must be relied upon to establish the causal relationship between the liability-producing situation and the claimed physical disability resulting therefrom. The evidence will be deemed insufficient to support the jury's verdict, if it can be said that considering the whole of the medical testimony the jury must resort to speculation or conjecture in [623] determining such causal relationship. In many recent decisions of this court we have held that such determination is deemed based on speculation and conjecture if the medical testimony does not go beyond the expression of an opinion that the physical disability "might have" or "possibly did" result from the hypothesized cause. To remove the issue from the realm of speculation, the medical testimony must at least be sufficiently definite to establish that the act complained of "probably" or "more likely than not" caused the subsequent disability.

O'Donoghue v. Riggs, 73 Wn.2d 814, 824, 440 P.2d 823 (1968).

The issue before the court, quite simply, is whether Dr. Ostrow's testimony satisfies the standard enunciated in O'Donoghue. We must decide whether Dr. Ostrow's testimony established that the act complained of (the alleged delay in diagnosis) "probably" or "more likely than not" caused Mr. Herskovits' subsequent disability. In order to make this determination, we must first define the "subsequent disability" suffered by Mr. Herskovits. Therein lies the crux of this case, for it is possible to define the injury or "disability" to Mr. Herskovits in at least two different ways. First, and most obviously, the injury to Mr. Herskovits might be viewed as his death. Alternatively, however, the injury or disability may be seen as the reduction of Mr. Herskovits' chance of surviving the cancer from which he suffered.

Therefore, although the issue before us is primarily one of causation, resolution of that issue requires us to identify the nature of the injury to the decedent. Our conception of the injury will substantially affect our analysis. If the injury is determined to be the death of Mr. Herskovits, then under the established principles of proximate cause plaintiff has failed to make a prima facie case. Dr. Ostrow was unable to state that probably, or more likely than not, Mr. Herskovits' death was caused by defendant's negligence. On the contrary, it is clear from Dr. Ostrow's testimony that Mr. Herskovits would have probably died from cancer even with the exercise of reasonable care by defendant. Accordingly, [624] if we perceive the death of Mr. Herskovits as the injury in this case, we must affirm the trial court, unless we determine that it is proper to depart substantially from the traditional requirements of establishing proximate cause in this type of case.

[1] If, on the other hand, we view the injury to be the reduction of Mr. Herskovits' chance of survival, our analysis might well be different. Dr. Ostrow testified that the failure to diagnose cancer in December 1974 probably caused a substantial reduction in Mr. Herskovits' chance of survival. The O'Donoghue v. Riggs standard of proof is therefore met.

I note here that two other problems are created by the latter analysis. First, we have never before considered whether the loss or reduction of a chance of survival is a compensable injury. And second, this analysis raises the issue of whether an action for reduction of the chance of survival can be brought under the wrongful death statute, RCW 4.20.010.

Confronted with these problems, and with the first impression choice between the two approaches to the issue before us, I turn to consider how other jurisdictions have dealt with similar cases.

One approach, and that urged by defendant, is to deny recovery in wrongful death cases unless the plaintiff establishes that decedent would probably have survived but for defendant's negligence. This approach is typified by Cooper v. Sisters of Charity, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971). The court in that case affirmed a directed verdict for defendant where the only evidence of causation was that decedent had a chance "maybe some place around 50%" of survival had defendant not been negligent. The court said in 27 Ohio St.2d at 253-54:

In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiff's evidence indicates that a failure to diagnose the injury prevented the patient from an opportunity to be operated on, which failure eliminated any chance of [625] the patient's survival, the issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery the patient probably would have survived.

This case was followed in Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (Ct. App. 1980). The Arizona court explicitly rejected both Hamil v. Bashline and Hicks v. United States (the leading cases cited by plaintiffs in the case before us) and agreed with Cooper that "the mere loss of an unspecified increment of the chance for survival is, of itself, insufficient to meet the standard of probability". 126 Ariz. at 613.

On the other hand, plaintiff cites seven cases in support of her position. Hicks v. United States, 368 F.2d 626 (4th Cir.1966); Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970); O'Brien v. Stover, 443 F.2d 1013 (8th Cir.1971); McBride v. United States, 462 F.2d 72 (9th Cir.1972); Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508, aff'd, 37 N.Y.2d 719, 337 N.E.2d 128, 374 N.Y.S.2d 615 (1974); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); James v. United States, 483 F. Supp. 581 (N.D. Cal. 1980). The complexity of the issue and elusive nature of the rationales of these opinions persuade me to discuss them at some length.

The first case, Hicks, was an action under the Federal Tort Claims Act, to recover damages for the death of a 25-year-old woman from an undiagnosed bowel obstruction. The uncontradicted testimony of the plaintiff's experts was that "if operated on promptly, [the patient] would have survived". 368 F.2d at 632.

The District Court, construing the laws of Virginia, concluded that there was insufficient evidence that the concededly erroneous diagnosis was a proximate cause of the woman's death. The defendant urged the Court of Appeals to affirm the District Court, arguing that even had surgery been performed immediately, it was mere speculation to say that it would have been successful. The Court of Appeals rejected the argument and in what has become an [626] oft-quoted passage said:

When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483 (1942).

368 F.2d at 632. The court in Hicks also drew an analogy to another federal case which imposed liability on a ship's master for failing to attempt to rescue a seaman who had fallen overboard. Gardner v. National Bulk Carriers, Inc., 310 F.2d 284, 91 A.L.R.2d 1023 (4th Cir.1962). The court in Gardner rejected the argument that any breach of duty by the ship's master was not a cause of the seaman's death. It held that once the evidence sustained the reasonable possibility of rescue, total disregard of the duty imposed liability.

The court in Hicks v. United States concluded its opinion with the observation that the defendant's "negligence nullified whatever chance of recovery [the patient] might have had and was the proximate cause of the death". 368 F.2d at 633.

Hicks is susceptible to two interpretations. On one hand, the court's use of phrases like "substantial possibility of survival" (368 F.2d at 632) and "whatever chance of recovery" (368 F.2d at 633) suggests that a less than 50 percent chance of survival would create a prima facie case of proximate cause. The analogy to the duty of a ship's master reinforces the suggestion that only a "reasonable possibility" of survival need be established. Gardner v. National Bulk Carriers, Inc., 310 F.2d at 287.

[627] On the other hand, however, the court had no need to decide such a broad question. There was uncontroverted testimony before the court that the decedent would have survived if operated upon promptly. At the very least, this testimony would establish a probability of survival. All the court had to decide, therefore, was that causation was established by a showing that an operation probably (rather than certainly) would have saved the patient's life. Two passages in the opinion seem to confirm that this is the rationale of the case. First, the court, in the passage quoted above, said that "[t]he law does not ... require the plaintiff to show to a certainty that the patient would have lived". 368 F.2d at 632. Second, the court, in explaining the similarity between Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483 (1942) and the facts before it, points out that in Harvey there was testimony to the effect that an operation would probably have saved the decedent's life, and this was sufficient to establish proximate cause. 368 F.2d at 632 n. 2.

Hicks v. United States, therefore, appears to be authority for no more than the proposition that proximate cause may be established on a probability of survival. This, of course, is entirely consistent with the existing principles of this state under O'Donoghue v. Riggs, and provides little direct support for plaintiff in the present case.

Subsequent cases, however, have relied on the expansive dicta in Hicks to allow recovery for the reduction of a less than probable chance of survival. The first such case was Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970). This was a malpractice action brought by the mother of a 13-year-old boy who died of throat cancer. The plaintiff alleged that the defendant's negligence had delayed diagnosis of the cancer for over a month. The plaintiff presented expert testimony that during that month the decedent's cancer had progressed from stage 1 to stage 2. Testimony also indicated that patients whose cancer is diagnosed at stage 1 have a statistical survival rate of 35 percent; patients at stage 2 have a survival rate of 24 percent.

[628] The Court of Appeals, reversing the District Court, held that this was sufficient evidence from which to infer that the patient's "life would have been saved or at least prolonged and his pain lessened had he received early treatment." 428 F.2d at 604. This conclusion was supported by reference to Hicks, which was described as "Persuasive". 428 F.2d at 605.

Both Jeanes and Hicks were cited in another case from the Eighth Circuit in which the plaintiff alleged a negligent delay in the diagnosis of cancer. O'Brien v. Stover, 443 F.2d 1013 (8th Cir.1971). Causation was apparently established in O'Brien by testimony that "there is an overall 30 per cent survival rate from this type of cancer and that chance is considerably improved the earlier the cancer is discovered". 443 F.2d at 1018. Among the elements of damages which the court approved was reduction of the patient's "chances for survival, or at least living longer and more comfortably". 443 F.2d at 1019.

The fourth case cited by plaintiff, McBride v. United States, is based upon the proposition that

When a plaintiff's cause of action rests upon an allegedly negligent failure to give necessary treatment, he must show, with reasonable medical probability, that the treatment would have successfully prevented the patient's injury.

462 F.2d at 75. This is the rationale also of Cooper v. Sisters of Charity, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971), and clearly of no assistance to plaintiff in the case before us.

The fifth case, Kallenberg v. Beth Israel Hosp., is a more extreme approach. The Appellate Division of the New York Supreme Court upheld a jury verdict of $55,000 in a wrongful death action. The jury had heard testimony from the plaintiff's witness that defendant's negligence was a "producing, contributing factor" in the death and further that "`if properly treated ... the patient still [would have had] a 20, say 30, maybe 40% chance of survival'". 45 A.D.2d at 179. The appellate court noted that proximate [629] cause is a jury question and concluded, without citing authority, that the testimony reviewed was sufficient for the jury to find that, but for the defendant's negligence, the decedent might have made a recovery.

Plaintiff relies most heavily on the next case, Hamil v. Bashline. This was a wrongful death action based upon the alleged negligence of the defendant hospital's failure to treat the decedent, who subsequently died of a heart attack. An expert witness for the plaintiff testified that had the decedent received reasonable treatment he would have had a 75 percent chance of surviving the heart attack he was experiencing when admitted to the hospital. The defendant argued that the plaintiff had failed to establish a prima facie case because no testimony was introduced to show that the defendant's negligence did, to a reasonable degree of medical certainty, cause decedent's death.

The Supreme Court of Pennsylvania acknowledged that the general principles of tort law in that state required that expert testimony "establish that the injury in question did, with a reasonable degree of medical certainty, stem from the negligent act alleged". 481 Pa. at 267. The court recognized an exception to this heavy burden of proof in situations governed by Restatement (Second) of Torts § 323(a) (1965). The court said in 481 Pa. at 269-70:

Section 323(a) recognizes that a particular class of tort actions, of which the case at bar is an example, differs from those cases normally sounding in tort. Whereas typically a plaintiff alleges that a defendant's act or omission set in motion a force which resulted in harm, the theory of the present case is that the defendant's act or omission failed in a duty to protect against harm from another source. To resolve such a claim a fact-finder must consider not only what did occur, but also what might have occurred, i.e., whether the harm would have resulted from the independent source even if defendant had performed his service in a non-negligent manner. Such a determination as to what might have happened necessarily requires a weighing of probabilities.

(Footnote omitted.) The court then quoted the ubiquitous [630] passage from Hicks v. United States and observed:

We agree with this statement of the law and hold that once a plaintiff has demonstrated that defendant's acts or omissions, in a situation to which Section 323(a) applies, have increased the risk of harm to another, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.

(Footnote omitted.) 481 Pa. at 272. In a footnote the court elaborated upon the manner in which the plaintiff must demonstrate that the defendant's acts or omissions increased the risk of harm to the plaintiff. In this footnote, the court quotes from comment a to Restatement (Second) of Torts § 433B(1), to the effect that the plaintiff must establish by a preponderance of the evidence that the conduct of the defendant was a substantial factor in bringing about the harm to the plaintiff. The court continues:

In the instant case, Dr. Wecht testified to a 75% chance of recovery had prompt treatment been administered to Mr. Hamil by Bashline; this was sufficient basis upon which the jury could have concluded that it was more likely than not that the defendant's omissions were a substantial factor in causing Mr. Hamil's death. Of course, as was done here, a defendant may present expert testimony to the opposite effect, i.e., the unlikelihood of survival even had the defendant exercised due care; as always, resolution of conflicting testimony is for the jury.

481 Pa. at 272 n. 9.

It is clear that Hamil, like Hicks and McBride, stands for no more than a rejection of a reasonable certainty standard of proof, and an acceptance of a reasonable probability standard. Viewed thus, it advances plaintiff's case very little.

The final case cited by plaintiff is James v. United States, 483 F. Supp. 581 (N.D. Cal. 1980). In that case, the District Court held that plaintiff's failure to establish a statistically measurable chance of survival did not rule out recovery. The court said, without citing authority:

[631] As a proximate result of defendant's negligence, [the decedent] was deprived of the opportunity to receive early treatment and the chance of realizing any resulting gain in his life expectancy and physical and mental comfort. No matter how small that chance may have been — and its magnitude cannot be ascertained — no one can say that the chance of prolonging one's life or decreasing suffering is valueless.

483 F. Supp. at 587.

This decision goes well beyond any of the other cases, allowing recovery for the loss of any chance, no matter how small.

Having concluded this somewhat detailed survey of the cases cited by plaintiff, what conclusions can we draw? First, the critical element in each of the cases is that the defendant's negligence either deprived a decedent of a chance of surviving a potentially fatal condition or reduced that chance. To summarize, in Hicks v. United States the decedent was deprived of a probability of survival; in Jeanes v. Milner the decedent's chance of survival was reduced from 35 percent to 24 percent; in O'Brien v. Stover, the decedent's 30 percent chance of survival was reduced by an indeterminate amount; in McBride v. United States the decedent was deprived of the probability of survival; in Kallenberg v. Beth Israel Hosp. the decedent was deprived of a 20 percent to 40 percent chance of survival; in Hamil v. Bashline the decedent was deprived of a 75 percent chance of survival; and in James v. United States the decedent was deprived of an indeterminate chance of survival, no matter how small.

The three cases where the chance of survival was greater than 50 percent (Hicks, McBride, and Hamil) are unexceptional in that they focus on the death of the decedent as the injury, and they require proximate cause to be shown beyond the balance of probabilities. Such a result is consistent with existing principles in this state, and with cases from other jurisdictions cited by defendant.

The remaining four cases allowed recovery despite the plaintiffs' failure to prove a probability of survival. Three of [632] these cases (Jeanes, O'Brien, and James) differ significantly from the Hicks, McBride, and Hamil group in that they view the reduction in or loss of the chance of survival, rather than the death itself, as the injury. Under these cases, the defendant is liable, not for all damages arising from the death, but only for damages to the extent of the diminished or lost chance of survival. The fourth of these cases, Kallenberg, differs from the other three in that it focuses on the death as the compensable injury. This is clearly a distortion of traditional principles of proximate causation. In effect, Kallenberg held that a 40 percent possibility of causation (rather than the 51 percent required by a probability standard) was sufficient to establish liability for the death. Under this loosened standard of proof of causation, the defendant would be liable for all damages resulting from the death for which he was at most 40 percent responsible.

My review of these cases persuades me that the preferable approach to the problem before us is that taken (at least implicitly) in Jeanes, O'Brien, and James. I acknowledge that the principal predicate for these cases is the passage of obiter dictum in Hicks, a case which more directly supports the defendant's position. I am nevertheless convinced that these cases reflect a trend to the most rational, least arbitrary, rule by which to regulate cases of this kind. I am persuaded to this conclusion not so much by the reasoning of these cases themselves, but by the thoughtful discussion of a recent commentator. King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981).

King's basic thesis is explained in the following passage, which is particularly pertinent to the case before us.

Causation has for the most part been treated as an all-or-nothing proposition. Either a loss was caused by the defendant or it was not.... A plaintiff ordinarily should be required to prove by the applicable standard of proof that the defendant caused the loss in question. [633] What caused a loss, however, should be a separate question from what the nature and extent of the loss are. This distinction seems to have eluded the courts, with the result that lost chances in many respects are compensated either as certainties or not at all.

To illustrate, consider the case in which a doctor negligently fails to diagnose a patient's cancerous condition until it has become inoperable. Assume further that even with a timely diagnosis the patient would have had only a 30% chance of recovering from the disease and surviving over the long term. There are two ways of handling such a case. Under the traditional approach, this loss of a not-better-than-even chance of recovering from the cancer would not be compensable because it did not appear more likely [than] not that the patient would have survived with proper care. Recoverable damages, if any, would depend on the extent to which it appeared that cancer killed the patient sooner than it would have with timely diagnosis and treatment, and on the extent to which the delay in diagnosis aggravated the patient's condition, such as by causing additional pain. A more rational approach, however, would allow recovery for the loss of the chance of cure even though the chance was not better than even. The probability of long-term survival would be reflected in the amount of damages awarded for the loss of the chance. While the plaintiff here could not prove by a preponderance of the evidence that he was denied a cure by the defendant's negligence, he could show by a preponderance that he was deprived of a 30% chance of a cure.

90 Yale L.J. at 1363-64.

Under the all or nothing approach, typified by Cooper v. Sisters of Charity, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971), a plaintiff who establishes that but for the defendant's negligence the decedent had a 51 percent chance of survival may maintain an action for that death. The defendant will be liable for all damages arising from the death, even though there was a 49 percent chance it would have occurred despite his negligence. On the other hand, a plaintiff who establishes that but for the defendant's negligence the decedent had a 49 percent chance of survival recovers nothing.

[634] This all or nothing approach to recovery is criticized by King on several grounds, 90 Yale L.J. at 1376-78. First, the all or nothing approach is arbitrary. Second, it

subverts the deterrence objectives of tort law by denying recovery for the effects of conduct that causes statistically demonstrable losses.... A failure to allocate the cost of these losses to their tortious sources ... strikes at the integrity of the torts system of loss allocation.

90 Yale L.J. at 1377. Third, the all or nothing approach creates pressure to manipulate and distort other rules affecting causation and damages in an attempt to mitigate perceived injustices. (Kallenberg v. Beth Israel Hosp. appears to be a good illustration of this tendency.) Fourth, the all or nothing approach gives certain defendants the benefit of an uncertainty which, were it not for their tortious conduct, would not exist. (This is reminiscent of the reasoning in the fertile dictum in Hicks v. United States.) Finally, King argues that the loss of a less than even chance is a loss worthy of redress.

These reasons persuade me that the best resolution of the issue before us is to recognize the loss of a less than even chance as an actionable injury. Therefore, I would hold that plaintiff has established a prima facie issue of proximate cause by producing testimony that defendant probably caused a substantial reduction in Mr. Herskovits' chance of survival.

The decedent's personal action for loss of this chance will survive to his personal representatives as provided by RCW 4.20.046. The family of the decedent should also be allowed to maintain an action for the lost chance of recovery by the decedent. I would interpret the wrongful death statute, RCW 4.20.010, to apply to cases of this type. Under this interpretation, a person will "cause" the death of another person (within the meaning of RCW 4.20.010) whenever he causes a substantial reduction in that person's chance of [635] survival.^[1]

Finally, it is necessary to consider the amount of damages recoverable in the event that a loss of a chance of recovery is established. Once again, King's discussion provides a useful illustration of the principles which should be applied.

To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of a chance, and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's chance of surviving the heart attack would be 40% of the compensable value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death). The value placed on the patient's life would reflect such factors as his age, health, and earning potential, including the fact that he had suffered the heart attack and the assumption that he had survived it. The 40% computation would be applied to that base figure.

(Footnote omitted.) 90 Yale L.J. at 1382.^[2]

[636] I would remand to the trial court for proceedings consistent with this opinion.

WILLIAMS, C.J., and STAFFORD and UTTER, JJ., concur with PEARSON,

J. BRACHTENBACH, J. (dissenting)

I dissent because I find plaintiff did not meet her burden of proving proximate cause. While the statistical evidence introduced by the expert was relevant and admissible, it was not alone sufficient to maintain a cause of action.

Neither the majority nor Justice Dolliver's dissent focus on the key issue. Both opinions focus on the significance of the 14 percent differentiation in the patient's chance to survive for 5 years and question whether this statistical data is sufficient to sustain a malpractice action. The issue is not so limited. The question should be framed as whether all the evidence amounts to sufficient proof, rising above speculation, that the doctor's conduct was a proximate cause of the patient's death. While the relevancy and the significance of the statistical evidence is a subissue bearing on the sufficiency of the proof, such evidence alone neither proves nor disproves plaintiff's case.

I

Proximate cause is neither easily defined nor readily understood. Dean Prosser begins his discussion of proximate cause with this disclaimer:

There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion. Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the proper approach. Much of this confusion is due to the fact that no one problem is involved, but a number of different problems, which are not distinguished clearly, and that language appropriate to a discussion of one is carried over to cast a shadow upon the others.

(Footnotes omitted.) W. Prosser, Torts § 41, at 236 (4th ed. 1971).

[637] Confusion is generated by the fact that proximate cause is a uniquely legal concept. It is not synonymous with the concept of cause in a philosophical sense because, hypothetically, an act may cause endless consequences. See Restatement (Second) of Torts § 431, comment a (1965). Proximate cause, however, represents the judicial limitations placed upon an actor's liability for the consequences of his or her conduct. See King v. Seattle, 84 Wn.2d 239, 249, 525 P.2d 228 (1974); cf. Hunsley v. Giard, 87 Wn.2d 424, 434, 553 P.2d 1096 (1976) (liability limited through judicial definition of duty).

The boundaries of proximate cause are not self-determinative. The question is one of law, not fact alone, and it is one that necessarily involves a policy decision. See Probert, Causation in the Negligence Jargon: A Plea for Balanced "Realism", 18 U. Fla. L. Rev. 369 (1965); Green, The Causal Relation Issue in Negligence Law, 60 Mich. L. Rev. 543 (1962). Whether the case goes to the jury or the judge dismisses the claim for a failure to make a case for causation may depend on the actors and the circumstances involved.

Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises.

Malone, Ruminations on Cause-In-Fact, 9 Stan. L. Rev. 60, 73 (1956). For example, the standard of proof of causation involving an intentional wrongdoer or joint tortfeasors may often be relaxed, whereas stringent proof requirements have been applied if the plaintiff was partially at fault. Compare Madigan v. Teague, 55 Wn.2d 498, 348 P.2d 403 (1955) (joint tortfeasors found liable) with Scott v. Rainbow Ambulance Serv., Inc., 75 Wn.2d 494, 452 P.2d 220 (1969) (case dismissed because of plaintiff's failure to segregate his contribution to the damages).

Malpractice suits represent a class of controversies where [638] extreme caution should be exercised in relaxing causation requirements. See Atkins v. Clein, 3 Wn.2d 168, 100 P.2d 1 (1940). The physician serves a vital function in our society, a function which requires the assumption of a duty to the patient. Yet, his profession affords him only an inexact and often experimental science by which to discharge his duty. Moreover, the tendency to place blame on a physician who fails to find a cure is great. Thus policy considerations do not, on balance, weigh in favor of abandoning the well established requirements of proximate cause.

The majority proposes adoption of the substantial factor test for cases falling under Restatement (Second) of Torts § 323(a) (1965). This was the approach taken in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); however, application of the substantial factor test in these circumstances is truly novel. Usually the substantial factor test has been applied only in situations where there are two causes, either of which could have caused the event alone, and it cannot be determined which was the actual cause. See Madigan v. Teague, supra. For example, A and B both start separate fires which combine to burn C's house. Either fire alone would have caused the same result, but C cannot prove that "but-for" the negligence of either A or B the house would not have burned. Therefore, to prevent both A and B being relieved of liability, the "but-for" test is abandoned, and the question becomes whether the conduct of A or B was a substantial factor in causing the fire that injured C. Under this test, either A or B could be held liable for the damage.

Except in situations where there are coequal causes, however, defendant's act cannot be a substantial factor when the event would have occurred without it. W. Prosser, at 244. Moreover, the substantial factor test has not been applied when one of the causes of the injury was the plaintiff himself. Hence in Scott v. Rainbow Ambulance Serv., Inc., supra, the case was dismissed because plaintiff failed to segregate her contribution to the damages from that of the tortfeasor; there was no discussion of the tortfeasor's [639] conduct in the context of the substantial factor test. Similarly, the substantial factor test should not be applied in the instant case.

II

Furthermore, the instant case does not present evidence of proximate cause that rises above speculation and conjecture. The majority asserts that evidence of a statistical reduction of the chance to survive for 5 years is sufficient to create a jury question on whether the doctor's conduct was a proximate cause of the death. I disagree that this statistical data can be interpreted in such a manner.

Use of statistical data in judicial proceedings is a hotly debated issue. See, e.g., Finkelstein & Fairley, A Bayesian Approach to Identification Evidence, 83 Harv. L. Rev. 489 (1970) (Finkelstein & Fairley I); Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329 (1971) (Tribe I); Finkelstein & Fairley, A Comment on "Trial by Mathematics", 84 Harv. L. Rev. 1801 (1971) (Finkelstein & Fairley II); Tribe, A Further Critique of Mathematical Proof, 84 Harv. L. Rev. 1810 (1971) (Tribe II); Dickson, Medical Causation by Statistics, 17 Forum 792 (1982); see also Brachtenbach, Future Damages in Personal Injury Actions — The Standard of Proof, 3 Gonz. L. Rev. 75 (1968). Many fear that members of the jury will place too much emphasis on statistical evidence and the statistics will be misused and manipulated by expert witnesses and attorneys. Tribe I, supra; Dickson, supra; People v. Collins, 68 Cal.2d 319, 438 P.2d 33, 66 Cal. Rptr. 497 (1968).

Such fears do not support a blanket exclusion of statistical data, however. Our court system is premised on confidence in the jury to understand complex concepts and confidence in the right of cross examination as protection against the misuse of evidence. Attorneys ought to be able to explain the true significance of statistical data to keep it in its proper perspective.

Statistical data should be admissible as evidence if they are relevant, that is, if they have

[640] any tendency to make the existence of any fact that is of consequence to ... the action more probable or less probable than it would be without the evidence.

ER 401. The statistics here met that test; they have some tendency to show that those diagnosed at stage 1 of the disease may have a greater chance to survive 5 years than those diagnosed at stage 2.

The problem is, however, that while this statistical fact is relevant, it is not sufficient to prove causation. There is an enormous difference between the "any tendency to prove" standard of ER 401 and the "more likely than not" standard for proximate cause.^[3]

Reliance on statistics alone to prove proximate cause may lead to unjust results. A simple example will illustrate my point. Assume there are two cab companies in a town; one has three blue cabs and the other has one yellow cab. A pedestrian is hit by a cab, but doesn't know what color it was. In a suit for personal injury, plaintiff wants to admit the statistical fact that there is a 75 percent chance that she was hit by a blue cab. This fact has relevancy; it is admissible. But is it sufficient to prove the blue cab company more probably than not committed the act? No. If this were not the case, the blue cab company could be held liable for every unidentified cab accident that occurred.

Thus statistics alone should not be sufficient to prove proximate cause. What is necessary, at the minimum, is some evidence connecting the statistics to the facts of the case. Referring back to the cab example, testimony that a blue cab was seen in the vicinity of the accident before or after it occurred or evidence of a recently acquired, unaccounted for, dent in a blue cab could combine with the statistical [641] evidence to lead a jury to believe it was more probable than not that this plaintiff was hit by a blue cab. See Finkelstein & Fairley I.

Thus, I would not resolve the instant case simply by focusing on the 14 percent differentiation in the chance to survive 5 years for the different stages of cancer. Instead, I would accept this as an admissible fact, but not as proof of proximate cause. To meet the proximate cause burden, the record would need to reveal other facts about the patient that tended to show that he would have been a member of the 14 percent group whose chance of 5 years' survival could be increased by early diagnosis.

Such evidence is not in the record. Instead, the record reveals that Mr. Herskovits' cancer was located such that corrective surgery "would be more formidable". This would tend to show that his chance of survival may have been less than the statistical average. Moreover, the statistics relied on did not take into consideration the location of the tumor; therefore, their relevance to Mr. Herskovits' case must be questioned. Clerk's Papers, at 41.

In addition, as the tumor was relatively small in size when removed (2 to 3 centimeters), the likelihood that it would have been detected in 1974, even if the proper test were performed, was less than average. This uncertainty further reduces the probability that the doctor's failure to perform the tests was a proximate cause of a reduced chance of survival.

Other statistics admitted into evidence also tend to show the inconclusiveness of the statistics relied on by the majority. One study showed the two-year survival rate for this type of cancer to be 46.6 percent for stage 1 and 39.8 percent for stage 2. Mr. Herskovits lived for 20 months after surgery, which was 26 months after defendant allegedly should have discovered the cancer. Therefore, regardless of the stage of the cancer at the time Mr. Herskovits was examined by defendant, it cannot be concluded that he survived significantly less than the average survival time. Hence, it is pure speculation to suppose that the doctor's [642] negligence "caused" Mr. Herskovits to die sooner than he would have otherwise. Such speculation does not rise to the level of a jury question on the issue of proximate cause. Therefore, the trial court correctly dismissed the case. See Restatement (Second) of Torts § 434 (1965); Scott v. Rainbow Ambulance Serv., Inc., 75 Wn.2d 494, 452 P.2d 220 (1969).

The apparent harshness of this conclusion cannot be overlooked. The combination of the loss of a loved one to cancer and a doctor's negligence in diagnosis seems to compel a finding of liability. Nonetheless, justice must be dealt with an even hand. To hold a defendant liable without proof that his actions caused plaintiff harm would open up untold abuses of the litigation system.

Cases alleging misdiagnosis of cancer are increasing in number, perhaps because of the increased awareness of the importance of early detection. These cases, however, illustrate no more than an inconsistency among courts in their treatment of the problems of proof. See Annot., Malpractice in Connection with Diagnosis of Cancer, 79 A.L.R.3d 915 (1977). Perhaps as medical science becomes more knowledgeable about this disease and more sophisticated in its detection and treatment of it, the balance may tip in favor of imposing liability on doctors who negligently fail to promptly diagnose the disease. But, until a formula is found that will protect doctors against liability imposed through speculation as well as afford truly aggrieved plaintiffs their just compensation, I cannot favor the wholesale abandonment of the principle of proximate cause. For these reasons, I dissent.

DIMMICK, J., concurs with BRACHTENBACH, J.

DOLLIVER, J. (dissenting)

This is apparently a case of first impression. As is usually true in such instances, the court is called upon to make a policy decision. The issue before us is whether, when the chance of survival is less than a probability, i.e., less than 50 percent, proof that the [643] chance of survival — not the probability of survival — is reduced is sufficient to take the case to the jury.

The majority answer in the affirmative cites several cases in support of this view and adopts the reasoning of Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). I favor the opposing view and believe the reasoning in Cooper v. Sisters of Charity, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971), also cited by the majority, is more persuasive. In discussing the rule to be adopted the Ohio Supreme Court stated:

A rule, which would permit a plaintiff to establish a jury question on the issue of proximate cause upon a showing of a "substantial possibility" of survival, in our judgment, suffers the same infirmity as a rule which would permit proof of a "chance of recovery" to be sufficient. While the substantial possibility concept appears to connote a weightier burden than the chance of recovery idea, both derogate well-established and valuable proximate cause considerations. Traditional proximate cause standards require that the trier of the facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act, in the absence of any intervening cause.

Lesser standards of proof are understandably attractive in malpractice cases where physical well being, and life itself, are the subject of litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that in an action for wrongful death an injured person should be compensated for the loss of any chance for survival, regardless of its remoteness. However, we have trepidations that such a rule would be so loose that it would produce more injustice than justice. Even though there exists authority for a rule allowing recovery based upon proof of causation by evidence not meeting the standard of probability, we are not persuaded by their logic....

We consider the better rule to be that in order to comport with the standard of proof of proximate cause, plaintiff in a malpractice case must prove that defendant's negligence, in probability, proximately caused the death.

(Citations omitted.) Cooper, at 251-52. This, it seems to [644] me, is a better rule.

The majority states the variations from 39 percent to 25 percent in the decedent's chance for survival are sufficient evidence to "consider the possibility" that the failure of the physician to diagnose the illness in a timely manner was the "proximate cause of his death." This reasoning is flawed. Whether the chances were 25 percent or 39 percent decedent would have survived for 5 years, in both cases, it was more probable than not he would have died. Therefore, I cannot conclude that the missed diagnosis was the proximate cause of death when a timely diagnosis could not have made it more probable the decedent would have survived. "`It is legally and logically impossible for it to be probable that a fact exists, and at the same time probable that it does not exist.'" Cooper, at 253 (quoting Davis v. Guarnieri, 45 Ohio St. 470, 490, 15 N.E. 350 (1887)). It would be pure speculation, given these figures, for an expert, a jury, or anyone else to conclude the decedent would live more or less time within the 5-year period with or without the proper diagnosis.

Two further comments: Factually, many of the cases cited by the majority, including Hamil v. Bashline, do not support its position. In McBride v. United States, 462 F.2d 72 (9th Cir.1972), the mortality rate was 15 percent for coronary patients admitted to the hospital and 30 to 35 percent for those outside the hospital. Thus, in any circumstance, the probability of survival was over 50 percent and was measurably greater in rather than out of the hospital. In Hamil v. Bashline, supra at 272 n. 9, the court stated the testimony observed "a 75% chance of recovery had prompt treatment been administered". In Hicks v. United States, 368 F.2d 626 (4th Cir.1966), the court observed, "Both of plaintiff's experts testified categorically that if operated on promptly, Mrs. Greitens would have survived, and this is nowhere contradicted by the government expert." Hicks, at 632.

In Wooldridge v. Woolett, 96 Wn.2d 659, 638 P.2d 566 (1981), we held the value of a decedent's shortened life [645] expectancy was not recoverable as a separate item of damages in a survival action under RCW 4.20.046. Yet, in the present case the majority is willing to grant recovery, not where there is a direct cause for the shortened life expectancy, but on the more ephemeral basis of a statistical probability entitled "probability of survival".

While these observations may not go to the heart of the majority position, they do make it a bit ragged around the edges.

I believe the position articulated in Cooper v. Sisters of Charity, Inc., supra, is preferable and thus I dissent.

Reconsideration denied July 21, 1983.

[1] The wrongful death statute is probably the principal reason the parties focused on the death of Mr. Herskovits rather than his diminished chance of survival. As I have endeavored to demonstrate, this approach leads either to harsh and arbitrary results, or to distortions of existing tort principles and the potential for confusion. A liberal construction of the statute appears a more effective method of achieving the most desirable end. The word "cause" has a notoriously elusive meaning (as the writings on legal causation all agree) and it is certainly sufficiently flexible to bear the interpretation I give it in the context of RCW 4.20.010.

[2] In effect, this approach conforms to the suggestion of Justice Brachtenbach in his dissent at page 640, footnote 3. The statistical data relating to the extent of the decedent's chance of survival are considered to show the amount of damages, rather than to establish proximate cause.

[3] There is also a difference between the standard of proof for proximate cause to show liability and the standard of proof to show the amount of damages after liability is established. Courts are willing to relax proof requirements on the issue of damages, once liability is shown. See generally 22 Am.Jur.2d Damages § 23 (1965). Therefore, statistical data may be of greater value at the damage stage, especially with regard to future damages that are necessarily subject to some uncertainties and contingencies. See Brachtenbach, Future Damages in Personal Injury Actions — The Standard of Proof, 3 Gonz. L. Rev. 75 (1968).