[475] Frederick S. Cassman, argued, Omaha, NE, for appellant.

Gerald P. Laughlin, argued, Omaha, NE (Michael M. O'Brien, on the brief), for appellee.

BEFORE: BEAM, ROSS, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BEAM, Circuit Judge.

Carl Shen is a former employee of Leo A. Daly Company's (Daly) Republic of China (Taiwan) office. Daly refused to pay taxes assessed by the Taiwanese government. As a result, Taiwan restricted Shen's travel, forbidding him from leaving the country. Shen then sued Daly on multiple theories of liability for damages and injunctive relief. Shen prevailed in part in the district court. Both he and Daly appeal the judgment. We affirm in part and reverse in part.

I. BACKGROUND

Shen is a United States citizen who retains dual Taiwanese citizenship. In 1989, Shen moved to Taiwan to become managing director of Daly's operation there.

To conduct business in Taiwan, Daly was required to designate a "responsible person," or legal representative in the country, and Shen was so designated. In November 1992, Daly, decided to withdraw from Taiwan because of business setbacks. As a result, Shen was terminated but chose to remain in Taiwan. Daly, however, failed to remove Shen as its responsible person.

In December 1993; Shen received a notice from the Taiwan Tax Authority that it wanted to audit Daly's 1992 Taiwan tax returns. Shen, in turn, notified Daly's accounting firm in Taiwan and informed them he was concerned he could be held responsible for any deficiency because his "chop," the Taiwanese equivalent of a signature, was affixed to the returns. Daly [476] responded that it was "inconceivable" any tax could be owed because Daly had suffered large losses in Taiwan. In January 1994, Shen asked Daly to indemnify him should the Taiwan Tax Authority impose the tax liability on him directly.

Following this request and until mid-October 1995, Shen, through a series of letters to Daly personnel and to Mr. Leo A. Daly III himself, implored Daly to resolve the tax dispute and remove him as the responsible person. In May 1994, the Taiwan Tax Authority assessed a tax liability of approximately $80,000 against Daly for 1991 and 1992. Daly did not appeal the assessment, and it became final in June 1995. In October 1995, the Taiwan Ministry of Finance and the Bureau of Entry and Exit informed Shen he was forbidden from leaving the country until resolution of the Daly tax issue.

Daly's attempt to extricate Shen through diplomatic channels failed. Shen then brought suit for a declaratory judgment in Taiwan to remove himself as Daly's responsible person. Although the court recognized Shen was no longer an employee of Daly, it denied relief because Daly had not replaced him as the responsible person. The Ministry of Finance also denied an appeal by Shen.

In 1997, Shen sued Daly in the United States District Court for the District of Nebraska. He requested a preliminary injunction to force Daly to pay the taxes. The district court entered such an injunction on December 31, 1997. We assume Daly then paid the taxes because Taiwan lifted the travel restriction. The district court held a bench trial in February 1999 on the issue of a permanent injunction and damages. The district court found a violation of the implied covenant of good faith and fair dealing and granted a permanent injunction. Shen was also awarded attorney's fees and $4760 in damages on his contractual claims. Shen, however, did not prevail on his claims for false imprisonment or intentional infliction of emotional distress. Both sides now appeal and we affirm in part and reverse in part.

II. DISCUSSION

This suit was brought under the court's diversity jurisdiction and therefore Nebraska law controls on all the issues presented in this appeal.

A. Res Judicata

Daly contends Shen's suit for a declaratory judgment in Taiwan should have preclusive effect in this suit and thus should bar all of Shen's claims for relief. To give the judgment of a foreign country preclusive effect, it must be recognized as a legitimate judgment. See Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 40 L.Ed. 95 (1895). Nebraska, however, has very little case law on this issue. After reviewing the relevant case law from other jurisdictions, we are persuaded Nebraska would follow the principles laid out by the Supreme Court in Hilton.

A judgment should be enforced and not retried if the foreign forum: (1) provided a full and fair trial of the issues in a court of competent jurisdiction; (2) ensured the impartial administration of justice; and (3) ensured the trial was without prejudice or fraud. See id. The foreign court must also have proper jurisdiction over the parties and the judgment must not violate public policy. See id.; Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436, 440 (1978). The burden of proof in establishing that the foreign judgment should be recognized and given preclusive effect is on the party asserting it should be recognized. See Bridgeway Corp. v. Citibank, 45 F.Supp.2d 276, 286 (S.D.N.Y. 1999).

Thus, Daly, the party arguing that the Taiwan judgment should be given preclusive effect, must establish each of these factors. Daly has merely asserted the Taiwanese judgment should be given effect, it has not provided the district court or this court with any authority that guides toward [477] the recognition of foreign judgments. Additionally, Daly did not produce any evidence to support its res judicata defense. Accordingly, it did not provide enough information for us to determine if the Taiwan tribunals are impartial or if Taiwan procedures are compatible with due process. Therefore, we find Daly did not meet its burden of proof, and the Taiwanese court's judgment will not be accorded preclusive effect.

B. Injunctive Relief

Daly next asserts the district court erred in granting preliminary and permanent injunctive relief. We review the district court's decision to grant injunctive relief for an abuse of discretion and we will affirm unless the district court "clearly erred in its characterization of the facts, made a mistake of law, or abused its discretion in considering the equities." Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington. N.R.R. Co., 802 F.2d 1016, 1020 (8th Cir.1986); see also United States v. Grand Lab., Inc., 174 F.3d 960, 965 (8th Cir.1999).

The district court held that Daly breached the implied covenant of good faith and fair dealing based on the agency relationship between Daly and Shen. We agree. Under Nebraska law, whether a person is an agent is a question of fact. See McCurry v. School Dist. of Valley, 242 Neb. 504, 496 N.W.2d 433, 439 (1993). The existence of an agency relationship does not depend on the terminology the parties use to characterize their relationship, but depends on the facts underlying the relationship. See Franksen v. Crossroads Joint Venture, 245 Neb. 863, 515 N.W.2d 794, 801 (1994); McCurry, 496 N.W.2d at 439. An agency relationship can be implied from words, conduct or circumstances that evidence an intent to create one. See McCurry, 496 N.W.2d at 439. For example, under agency principles, an agent can be given apparent or ostensible authority to act if the "alleged principal affirmatively, intentionally, or by lack of ordinary care causes third persons to act upon the apparent authority." See Franksen, 515 N.W.2d at 801. That is what happened in this case.

After Daly terminated Shen in December 1992, Daly did not remove Shen as its responsible person. When Shen entreated Daly to remove him as its responsible person in January 1994, Daly still did not act. In June 1994, Daly tried to have one of the employees of its accounting firm in Taiwan replace Shen and informed Shen that the employee had become Daly's new responsible person. The employee, however, decided not to take the appointment, and Daly failed to inform Shen of this fact for seven months. By the time Shen learned there was no replacement for him, the threat of a travel restriction was looming, and Daly was unable to find anyone willing to take the appointment. The result of Daly's initial inaction and subsequent inability to replace Shen as responsible person was that Shen remained Daly's agent regarding actions taken by Taiwan. Therefore, we find no error in the district court's factual finding of an agency relationship.

A principal and an agent are in a fiduciary relationship. See Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50, 54 (1997). Because of the fiduciary relationship, the principal owes the agent a duty of good faith and fair dealing in the incidents of their relationship. See Lawrence Warehouse Co. v. Twohig, 224 F.2d 493, 497 (8th Cir.1955). Moreover, "`[c]orrelative with the duties of the agent to serve loyally and obediently are the principal's duties of compensation, indemnity, and protection.'" See Western Smelting & Ref. Co. v. First Nat'l Bank of Omaha, 150 Neb. 477, 35 N.W.2d 116, 121 (1948) (quoting Restatement of Agency Intro. note, vol. 2, p. 999). Daly breached its duty as a fiduciary in the following ways: (1) Daly did not pay the tax when it was assessed; (2) it chose not to appeal the assessment through proper channels; and (3) Daly did not find [478] a replacement for Shen as responsible person.

We recognize Daly believes the taxes were unfairly assessed and amounted to little more than extortion. However, its dispute with Taiwan over the "`principle of the thing' took place over the body of its innocent former employee and agent" and, thus, the district court did not abuse its discretion in granting the injunction based on Daly's breach of fiduciary duty. Shen v. Leo A. Daly Co., No. 8:97CV441, Slip Op. at 14 (D.Neb. May 28, 1999).

C. False Imprisonment

Shen contends the district court erred when it granted Daly's motion for judgment as a matter of law on the false imprisonment claim. We review the decision to grant judgment as a matter of law de novo, viewing the evidence in the light most favorable to Shen. See DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 467 (8th Cir.2000). False imprisonment is "the unlawful restraint against his will of an individual's personal liberty." See Herbrick v. Samardick & Co., 169 Neb. 833, 101 N.W.2d 488, 491 (1960). Shen's liberty was restrained in this case—he was not allowed to leave Taiwan. And, as Shen correctly points out, the term false imprisonment is broader than just confinement within a jail or prison. Shen's confinement, however, was to a whole country. He was free to move about Taiwan, and was not restrained in any way in his daily activities. Although it is difficult to define exactly how close the level of restraint must be, in this case the country of Taiwan is clearly too great an area within which to be falsely imprisoned. Therefore, the district court correctly granted judgment as a matter of law.

D. Intentional Infliction of Emotional Distress

Shen also asserts the district court improperly dismissed his claim for intentional infliction of emotional distress. We review legal conclusions de novo, and factual findings for clear error. See Simmons v. Cook, 154 F.3d 805, 807 (8th Cir. 1998). To establish a claim for intentional infliction of emotional distress, Shen must prove:

(1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.

Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607, 611 (2000).

The harms Shen suffered because of Daly's refusal to pay the tax included "missed family occasions, estrangement from his wife, lost business opportunities, shame, depression, insomnia, anxiety, and a variety of health problems for which, he testified, he sought medical attention." Shen, Slip-op. at 15. Although Shen undoubtedly did suffer stress and anxiety in this situation, his suffering does not rise to the level required by Nebraska law. Additionally, Daly's conduct, though unquestionably unfair, did not exceed "all possible bounds of decency." Therefore, we find no error in the district court's dismissal of this claim.

E. Set-off

Daly contends it is entitled to setoff $6700 that Shen owes it against the $4670 Shen recovered on contract claims. The district court denied the set-off because it had not been pled and it was not included in the pre-trial order. We review the district court's decision for an abuse of discretion. See Corsica Livestock Sales, Inc. v. Sumitomo Bank, 726. F.2d 374, 377 (8th Cir.1983).

The pleading rules in the federal courts are very liberal and Federal Rule of Civil Procedure 15 contemplates [479] that courts should allow pleadings to be amended if it is necessary to further justice and will not prejudice the parties. See id. Furthermore, Rule 15(b) provides that "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Consent may be implied if evidence to support the claim was introduced at trial without objection. See St. Joe Minerals Corp. v. Occupational Safety and Health Review Comm'n, 647 F.2d 840, 844 (8th Cir.1981).

Although Shen did not expressly consent to try the set-off issue, the issue was tried by implied consent in this case. On cross-examination, Shen, without objection, testified he received the refund from withholding taxes from the Taiwanese government. He testified that it was Daly's money and amounted to $6700. Additionally, Shen acknowledged he owes Daly the money. The fact that the money is owed is not disputed. Therefore, we find the court abused its discretion and Daly is entitled to the set-off.

F. Attorney's Fees

Daly asserts the district court erred in awarding Shen attorney's fees for the action in Taiwan and for this action. Under Nebraska law, attorney's fees are only proper if they are permitted by statute or by uniform practice. See Quinn v. Godfather's Inv., Inc., 217 Neb. 441, 348 N.W.2d 893, 894 (1984). Furthermore, "[a]s a general rule of practice in [Nebraska], attorneys' fees are allowed to the successful party in litigation only where such allowance is provided by statute." Id. at 895. There is no Nebraska statute authorizing attorney's fees for a breach of fiduciary duty. Therefore, the district erred in awarding attorney's fees for this action.

However, the bar on attorney's fees only applies in the very case being litigated. See Zimmerman v. FirsTier Bank, N.A., 255 Neb. 410, 585 N.W.2d 445, 454 (1998). It would not apply to the award of attorney's fees for the action in Taiwan because that award, in essence, is compensatory. Nebraska courts have held that attorney's fees are recoverable as compensatory damages when a person, damaged by a tort, was required to bring a suit against a third person to protect his interests. See Tetherow v. Wolfe, 223 Neb. 631, 392 N.W.2d 374, 379 (1986). A person who commits a breach of fiduciary duty is guilty of tortious conduct. See Restatement (Second) of Torts § 874 cmt. b (1979). Daly's breach of the covenant of good faith and fair dealing is a breach of fiduciary duty. And, although Shen sued Daly in the action in Taiwan, he was required to bring his suit to protect his interest and have the travel restriction lifted. Therefore, the attorney's fees awarded for the suit in Taiwan were proper as an element of damages for breach of fiduciary duty.

G. Damages

Shen contends the district court should have awarded him compensatory damages for the breach of the covenant of good faith and fair dealing. We review the district court's damage award for an abuse of discretion. See Johnson v. Cowell Steel Structures, Inc., 991 F.2d 474, 476 (8th Cir.1993). Under Nebraska law, "[t]he amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of the damages proved." Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445, 449 (1998). We find the record supports the district court's award of attorney's fees for the action in Taiwan as damages for the breach of the covenant of good faith. Thus, we find no abuse of discretion by the district court.

III. CONCLUSION

Accordingly, we affirm the judgment of the district court with respect to injunctive [480] relief and damages. We reverse the judgment of the district court on the issue of set-off and reverse in part on the issue of attorney's fees. This action is remanded to the District Court for an entry of judgment in accordance with this opinion.

Thomas R. Morse, Jr., Boston, for defendants.

Sumner Z. Kaplan, Boston (Julian Soshnick, Boston, with him) for plaintiff.

Before TAURO, C.J., and SPALDING, SPIEGEL, REARDON and BRAUCHER, JJ.

[359 Mass. 320] SPIEGEL, Justice.

This is an action of tort for false imprisonment.^[1] At the close of the evidence the defendants filed a motion for directed verdicts which was denied. The jury returned verdicts for the plaintiff in the sum of $12,500. The case is here on the defendants' exceptions to the denial of their motion and to the refusal of the trial judge to give certain requested instructions to the jury.

We state the pertinent evidence most favorable to the plaintiff. On March 5, 1965, the plaintiff went to Kennedy's, Inc. [268 N.E.2d 861] (Kennedy's), a store in Boston. He was seventy years of age and about five feet four inches in height. He was wearing a woolen shirt, which was 'open at the neck,' a topcoat and a hat. '(A)round his neck' he wore an ascot which he had 'purchased * * * previously at Filenes.' He proceeded to the second floor of Kennedy's to purchase a sport coat. He removed his hat, topcoat and ascot, putting the ascot in his pocket. After purchasing a sport coat and leaving it for alterations, he put on his hat and coat and walked downstairs. Just prior to exiting through the outside door of the store, he stopped, took the ascot out of his pocket, put it around his neck, and knotted it. The knot was visible 'above the lapels of his shirt.' The only stop that the plaintiff made on the first floor was immediately in front of the exit in order to put on his ascot.

Just as the plaintiff stepped out of the door, the defendant Goss, an employee, 'loomed up' in front of him with his hand up and said: 'Stop. Where did you get that scarf?' The plaintiff responded, '(W)hy?' Goss firmly grasped the plaintiff's arm and said: '(Y)ou better go back and see the manager.' Another employee was standing next to him. Eight or ten other people were standing around and were staring at the plaintiff. The plaintiff then said, 'Yes, I'll go back in the store' and proceeded to do so. As he and Goss went upstairs to the second floor, [359 Mass. 321] the plaintiff paused twice because of chest and back pains. After reaching the second floor, the salesman from whom he had purchased the cost recognized him and asked what the trouble was. The plaintiff then asked: '(W)hy 'these two gentlemen stop me? " The salesman confirmed that the plaintiff had purchased a sport coat and that the ascot belonged to him.

The salesman became alarmed by the plaintiff's appearance and the store nurse was called. She brought the plaintiff into the nurse's room and gave him a soda mint tablet. As a direct result of the emotional upset caused by the incident, the plaintiff was hospitalized and treated for a 'myocardial infarct.'

Initially, the defendants contend that as a matter of law the plaintiff was not falsely imprisoned. They argue that no unlawful restraint was imposed by either force or threat upon the plaintiff's freedom of movement. Wax v. McGrath, 255 Mass. 340, 342, 151 N.E. 317. However, '(t)he law is well settled that '(a)ny genuine restraint is sufficient to constitute an imprisonment * * *' and '(a)ny demonstration of physical power which, to all appearances, can be avoided only by submission, operates as effectually to constitute an imprisonment, if submitted to, as if any amount of force had been exercised.' 'If a man is restrained of his personal liberty by fear of a personal difficulty, that amounts to a false imprisonment' within the legal meaning of such term.' Jacques v. Childs Dining Hall Co., 244 Mass. 438, 438--439, 138 N.E. 843.

We think it is clear that there was sufficient evidence of unlawful restraint to submit this question to the jury. Just as the plaintiff had stepped out of the door of the store, the defendant Goss stopped him, firmly grasped his arm and told him that he had 'better go back and see the manager.' There was another employee at his side. The plaintiff was an elderly man and there were other people standing around staring at him. Considering the plaintiff's age and his heart condition, it is hardly to be expected that with one employee in front of him firmly grasping [359 Mass. 322] his arm and another at his side the plaintiff could do other than comply with Goss's 'request' that he go back and see the manager. The physical restraint imposed upon the plaintiff when Goss grasped the plaintiff's arm readily distinguishes this case from Sweeney v. F. W. Woolworth Co., 247 Mass. 277, 142 N.E. 50, relied upon by the defendants.

In addition, as this court observed in the Jacques case, supra, at p. 441, 138 N.E. at p. 844, the 'honesty and veracity (of the [268 N.E.2d 862] plaintiff) had been openly * * * challenged. If she had gone out before * * * (exonerating herself), her departure well might have been interpreted by the lookers on as an admission of guilt, or of circumstances from which guilt might be inferred. The situation was in the control of the defendant. The restraint or duress imposed by the mode of investigation * * * the jury could say was for the accomplishment of the defendant's purpose, even if no threats of public exposure or of arrest were made, and no physical restraint of * * * (the plaintiff) was attempted.' For cases in other jurisdictions, where the evidence tended to support the tort of false imprisonment, see Clark v. Kroger Co., 382 F.2d 562, 563 (7th Cir.); Patrick v. Esso Standard Oil Co., D.C.N.J., 156 F.Supp. 336, 340; Daniel v. Phillips Petroleum Co., 229 Mo.App. 150, 155, 73 .s.W.2d 355; Lukas v. J. C. Penney Co., 233 Or. 345, 354, 378 P.2d 717.

The defendants next contend that the detention of the plaintiff was sanctioned by G.L. c. 231, § 94B, inserted by St.1958, c. 337. This statute provides as follows: 'In an action for false arrest or false imprisonment brought by any person by reason of having been detained for questioning on or in the immediate vicinity of the premises of a merchant, if such person was detained in a reasonable manner and for not more than a reasonable length of time by a person authorized to make arrests or by the merchant or his agent or servant authorized for such purpose and if there were reasonable grounds to believe that the person so detained was committing or attempting to commit larceny of goods for sale on such premises, it shall be a defence to such action. If such goods had not been purchased and [359 Mass. 323] were concealed on or amongst the belongings of a person so detained it shall be presumed that there were reasonable grounds for such belief.'

The defendants argue in accordance with the conditions imposed in the statute that the plaintiff was detained in a reasonable manner for a reasonable length of time and that Goss had reasonable grounds for believing that the plaintiff was attempting to commit larceny of goods held for sale.

It is conceded that the detention was for a reasonable length of time. See Proulx v. Pinkerton's Natl. Detective Agency, Inc., 343 Mass. 390, 392--393, 178 N.E.2d 575. We need not decide wehther the detention was effected in a reasonable manner for we are of opinion that there were no reasonable grounds for believing that the plaintiff was committing larceny and, therefore, he should not have been detained at all. However, we observe that Goss's failure to identify himself as an employee of Kennedy's and to disclose the reasons for his inquiry and actions, coupled with the physical restraint in a public place imposed upon the plaintiff, an elderly man, who had exhibited no aggressive intention to depart, could be said to constitute an unreasonable method by which to effect detention. See Lukas v. J. C. Penney Co., 233 Or. 345, 352, 360, 378 P.2d 717.

The pivotal question before us as in most cases of this character is whether the evidence shows that there were reasonable grounds for the detention. At common law in an action for false imprisonment, the defence of probable cause, as neasured by the prudent and cautious man standard, was available to a merchant. Standish v. Narragansett S.S. Co., 111 Mass. 512, 517. Jacques v. Childs Dining Hall Co., 244 Mass. 438, 439, 138 N.E. 843. Muniz v. Mehlman, 327 Mass. 353, 358,^[2] 99 N.E.2d 37. In enacting G.L. c. 231, § 94B, the Legislature inserted the words, 'reasonable grounds.' Historically, the words 'reasonable grounds' and 'probable [359 Mass. 324] cause' have been given the same meaning by the [268 N.E.2d 863] courts. In the case of United States v. Walker, 7 Cir., 246 F.2d 519, 526, it was said: "Probable cause' and 'reasonable grounds' are concepts having virtually the same meaning.' The following cases have expressly stated that the words may be used interchangeably and without distinction. Draper v. United States, 358 U.S. 307, 310, 79 S.Ct. 329, 3 L.Ed.2d 327. United States v. Vasquez, D.C.N.Y., 183 F.Supp. 190, 193. Smallwood v. Commonwealth, 305 Ky. 520, 524, 204 S.W.2d 945. McKeon v. National Cas. Co., 216 Mo.App. 507, 524, 270 S.W. 707. Adams v. State, 137 Tex.Cr. 43, 46, 128 S.W.2d 41. Stelloh v. Liban, 21 Wis.2d 119, 125, 124 N.W.2d 101. In the case of Lukas v. J. C. Penney Co., supra, at p. 361, 378 P.2d 717, the Oregon Supreme Court construed the meaning of the words 'reasonable grounds' in its 'shoplifting statute' as having the same meaning as they have in a statute authorizing arrest without a warrant and applied the probable cause standard to the facts before it.

The defendants assert that the judge improperly instructed the jury in stating that 'grounds are reasonable when there is a basis which would appear to the reasonably prudent, cautious, intelligent person.' In their brief, they argue that the 'prudent and cautious man rule' is an objective standard and requires a more rigorous and restrictive standard of conduct than is contemplated by G.L. c. 231, § 94B. The defendants' requests for instructions, in effect, state that the proper test is a subjective one, viz., whether the defendant Goss had an honest and strong suspicion that the plaintiff was committing or attempting to commit larceny.^[3]

[359 Mass. 325] We do not agree. As we have attempted to show, the words 'reasonable grounds' and 'probable cause' have traditionally been accorded the same meaning. In the case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, involving the question whether a police officer must have probable cause within the Fourth Amendment to 'stop-and-frisk' a suspected individual, the Supreme Court of the United States held that the 'probable cause' requirement of the Fourth Amendment applies to a 'stop-and-frisk' and that a 'stop-and-frisk' must 'be judged against an objective standard: would the facts available to the officer at the moment * * * 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? * * * Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.' Pp. 21--22, 88 S.Ct. p. 1880.

If we adopt the subjective test as suggested by the defendants, the individual's right to liberty and freedom of movement would become subject to the 'honest * * * suspicion' of a shopkeeper based on his own 'inarticulate hunches' without regard to any discernible facts. In effect, the result would be to afford the merchant even greater authority than that given to a police officer. In view of the well established meaning of the words 'reasonable grounds' we believe that the Legislature intended to give these words their traditional [268 N.E.2d 864] meaning. This seems to us a valid conclusion since the Legislature has permitted an individual to be detained for a 'reasonable length of time.' This would be at least analogous to a 'stop' within the meaning of the Terry case.^[4]

[359 Mass. 326] We also note that an objective standard is the criterion for determining probable cause or reasonable grounds in malicious prosecution and false arrest cases. Bacon v. Towne, 4 Cush. 217, 238--239. Wax v. McGrath, 255 Mass. 340, 343, 151 N.E. 317. We see no valid reason to depart from this precedent in regard to cases involving false imprisonment.

Applying the standard of reasonable grounds as measured by the reasonably prudent man test^[5] to the evidence in the instant case, we are of opinion that the evidence warranted the conclusion that Goss was not reasonably justified in believing that the plaintiff was engaged in shoplifting. There was no error in denying the motion for directed verdicts and in the refusal to give the requested instructions.

Exceptions overruled.

[1] Although there were several other counts in the original and amended declarations we are here concerned with only two counts; one against Kennedy's, Inc. and the other against one Gerald Goss.

[2] See Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 288, 69 L.Ed. 543, where Chief Justice Taft, speaking for the majority of a divided court, said: 'The necessity for probable cause in justifying seizures on land or sea, in making arrests without warrant for past felonies, and in malicious prosecution and false imprisonment cases has led to frequent definition of the phrase.'

[3] The bill of exceptions recites that '(t)he defendants duly excepted to the failure of the Court to give their requested instructions 1, 2 and 3.' These requests are as follows: '1. If the defendant Goss had a belief to the extent of an honest and strong suspicion that the plaintiff had committed larceny or was attempting to commit larceny of goods for sale on Kennedy's premises, the jury should find that he acted reasonably. * * * 2. If the jury find the ascot * * * was concealed on or amongst the belongings of the plaintiff, they must find that the defendants had reasonable grounds to believe that larceny had been attempted or committed. 3. If the jury find that the defendant Goss reasonably suspected the plaintiff of theft or failing to pay for goods belonging to Kennedy's, they must return verdicts for the defendants on all counts.'

The defendants' brief refers only to request No. 1 although their argument appears to touch on the periphery of the remaining two requests.

[4] See Terry v. Ohio, supra, at p. 19, 88 S.Ct. at p. 1879, where the Supreme Court rejects 'the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a 'technical arrest. " At p. 19, fn. 16, 88 S.Ct. at p. 1879, the court states that '(o)nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred.'

We also note that the Terry case allows 'a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.' Even in such circumstances, however, the court said that 'in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.' P. 27, 88 S.Ct. at p. 1883.

[5] The test for determining probable cause or reasonable grounds was established long ago in Bacon v. Towne, supra, at pp. 238--239, where Chief Justice Shaw wrote: 'Probable cause is such a state of facts * * * as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person arrested is guilty' (emphasis supplied).

We also note here that the defendants incorrectly rely on certain language in the case of Pihl v. Morris, 319 Mass. 577, 580, 66 N.E.2d 804, 806, to support their argument that only 'an honest and strong suspicion' is needed rather than 'reasonable grounds.' That case states that "an honest and strong suspicion' is a necessary part of probable cause' (emphasis supplied).

[168] Philip A. Berns, Washington, D. C., (Edwin L. Weisl, Jr., Asst. Atty. Gen., Joseph P. Hoey, U. S. Atty., Louis E. Greco, Atty. in Charge, New York Office, Admiralty and Shipping Section, Peter M. Klein, Atty., Admiralty and Shipping Section, Dept. of Justice), for the United States, appellant.

Christopher E. Heckman, New York City, Foley & Martin, New York City, for appellee Ira S. Bushey & Sons, Inc.

Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.

FRIENDLY, Circuit Judge:

While the United States Coast Guard vessel Tamaroa was being overhauled in a floating drydock located in Brooklyn's Gowanus Canal, a seaman returning from shore leave late at night, in the condition for which seamen are famed, turned some wheels on the drydock wall. He thus opened valves that controlled the flooding of the tanks on one side of the drydock. Soon the ship listed, slid off the blocks and fell against the wall. Parts of the drydock sank, and the ship partially did — fortunately without loss of life or personal injury. The drydock owner sought and was granted compensation by the District Court for the Eastern District of New York in an amount to be determined, 276 F.Supp. 518; the United States appeals.^[1]

Before reaching the merits, we must deal with a procedural issue injected by the district judge, since we would have no jurisdiction of the appeal if his decision of the question was correct. Although Bushey, the drydock owner, had brought its libel under the Public Vessels Act, 46 U.S.C. §§ 781-790, and the United States did not dispute the applicability of that statute save for unsuccessfully contending that Bushey must first present its claim to the Coast Guard Board of Contract Appeals,^[2] the judge ruled that the damage to the drydock was not "caused by a public vessel of the United States" since "the Tamaroa was not, in a practical sense, a ship causing a 'collision,' but an inert mass." 276 F.Supp. at 523. He then proceeded to hold (1) that sovereign immunity was nevertheless waived under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674, the exception in § 2680(d) for "any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States" being inapplicable because, as he believed, no such remedy was provided; (2) that Bushey's pleading would be deemed amended to allege a claim under the Tort Claims Act which it had not asserted; (3) that New York law applied, 28 U.S.C. § 1346 (b); (4) that this, however, was the "whole" law of New York; and (5) that New York would, indeed must, determine liability for a tort on navigable waters in accordance with maritime law. Hence, from a substantive standpoint, the chase was thought to have ended where it began, save for a caveat as to the applicability of distinctive admiralty remedies, notably limitation, an issue not practically important here.

[169] What does remain important is that our powers to review a judgment determining liability but not fixing damages are entirely different if the action was in admiralty as the parties thought or at law as the judge held. If it was the former, we have jurisdiction under 28 U.S.C. § 1292(a) (3) relating to "interlocutory decrees * * * determining the rights and liability of the parties to admiralty cases in which appeals from final decrees are allowed," whereas if it were the latter, we would have none. Beebe v. Russell, 60 U.S. (19 How.) 283, 285, 15 L.Ed. 668 (1856); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945).

We perceive no basis for the court's restrictive reading of the Public Vessels Act. It is no strain whatever on the language to say that a public vessel has "caused" any tort damage for which she is legally responsible. Thomason v. United States, 184 F.2d 105 (9 Cir. 1950). The Act speaks of causing "damage"; it says nothing about causing "collision." Such debate as there has been concerning the scope of the Public Vessels Act relates to claims sounding in contract, see Calmar S. S. Corp. v. United States, 345 U.S. 446, 456 n. 8, 73 S.Ct. 733, 738, 97 L.Ed. 1140 (1953), and even as to that "equivocal language should be construed so as to secure the most harmonious results." Id. Furthermore, and decisively, even if the judge's narrow reading of § 1 of the Public Vessels Act had been warranted, the suit could nevertheless be maintained under § 2 of the Suits in Admiralty Act as amended, 46 U.S.C. § 742. This provides, inter alia, that in cases where if any vessel owned by the United States "were privately owned or possessed, * * * a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States * * *." — the language of the 1920 statute restricting the Suits in Admiralty Act to merchant vessels having been stricken in 1960, 74 Stat. 912, for the very purpose of avoiding fruitless jurisdictional controversies and bringing all maritime claims against United States vessels into the admiralty jurisdiction of the district courts. See S.Rep. 1894, 86th Cong. 2d Sess., 2 U.S. Code Cong. & Adm. News, p. 3583 et seq.^[3]

With our appellate jurisdiction under 28 U.S.C. § 1292 (a) (3) thus established, we return to the facts. The Tamaroa had gone into drydock on February 28, 1963; her keel rested on blocks permitting her drive shaft to be removed and repairs to be made to her hull. The contract between the Government and Bushey provided in part:

(o) The work shall, whenever practical, be performed in such manner as not to interfere with the berthing and messing of personnel attached to the vessel undergoing repair, and provision shall be made so that personnel assigned shall have access to the vessel at all times, it being understood that such personnel will not interfere with the work or the contractor's workmen.

Access from shore to ship was provided by a route past the security guard at the gate, through the yard, up a ladder to the top of one drydock wall and along the wall to a gangway leading to the fantail deck, where men returning from leave reported at a quartermaster's shack.

Seaman Lane, whose prior record was unblemished, returned from shore leave a little after midnight on March 14. He had been drinking heavily; the quarter-master made mental note that he was "loose." For reasons not apparent to us or very likely to Lane,^[4] he took it into his head, while progressing along the gangway wall, to turn each of three large [170] wheels some twenty times; unhappily, as previously stated, these wheels controlled the water intake valves. After boarding ship at 12:11 A.M., Lane mumbled to an off-duty seaman that he had "turned some valves" and also muttered something about "valves" to another who was standing the engineering watch. Neither did anything; apparently Lane's condition was not such as to encourage proximity. At 12:20 A.M. a crew member discovered water coming into the drydock. By 12:30 A.M. the ship began to list, the alarm was sounded and the crew were ordered ashore. Ten minutes later the vessel and dock were listing over 20 degrees; in another ten minutes the ship slid off the blocks and fell against the drydock wall.

The Government attacks imposition of liability on the ground that Lane's acts were not within the scope of his employment. It relies heavily on § 228(1) of the Restatement of Agency 2d which says that "conduct of a servant is within the scope of employment if, but only if: * * * (c) it is actuated, at least in part by a purpose to serve the master." Courts have gone to considerable lengths to find such a purpose, as witness a well-known opinion in which Judge Learned Hand concluded that a drunken boatswain who routed the plaintiff out of his bunk with a blow, saying "Get up, you big son of a bitch, and turn to," and then continued to fight, might have thought he was acting in the interest of the ship. Nelson v. American-West African Line, 86 F.2d 730 (2 Cir. 1936), cert. denied, 300 U.S. 665, 57 S.Ct. 509, 81 L.Ed. 873 (1937). It would be going too far to find such a purpose here; while Lane's return to the Tamaroa was to serve his employer, no one has suggested how he could have thought turning the wheels to be, even if — which is by no means clear — he was unaware of the consequences.

In light of the highly artificial way in which the motive test has been applied, the district judge believed himself obliged to test the doctrine's continuing vitality by referring to the larger purposes respondeat superior is supposed to serve. He concluded that the old formulation failed this test. We do not find his analysis so compelling, however, as to constitute a sufficient basis in itself for discarding the old doctrine. It is not at all clear, as the court below suggested, that expansion of liability in the manner here suggested will lead to a more efficient allocation of resources. As the most astute exponent of this theory has emphasized, a more efficient allocation can only be expected if there is some reason to believe that imposing a particular cost on the enterprise will lead it to consider whether steps should be taken to prevent a recurrence of the accident. Calabresi, The Decision for Accidents: An Approach to Non-fault Allocation of Costs, 78 Harv.L.Rev. 713, 725-34 (1965). And the suggestion that imposition of liability here will lead to more intensive screening of employees rests on highly questionable premises, see Comment, Assessment of Punitive Damages Against an Entrepreneur for the Malicious Torts of His Employees, 70 Yale L.J. 1296, 1301-04 (1961).^[5] The unsatisfactory quality of the allocation of resource rationale is especially striking on the facts of this case. It could well be that application of the traditional rule might induce drydock owners, prodded by their insurance companies, to install locks on their valves to avoid similar incidents in the future,^[6] while placing the burden on shipowners is much less [171] likely to lead to accident prevention.^[7] It is true, of course, that in many cases the plaintiff will not be in a position to insure, and so expansion of liability will, at the very least, serve respondeat superior's loss spreading function. See Smith, Frolic and Detour, 23 Colum.L.Rev. 444, 456 (1923). But the fact that the defendant is better able to afford damages is not alone sufficient to justify legal responsibility, see Blum & Kalven, Public Law Perspectives on a Private Law Problem (1965), and this overarching principle must be taken into account in deciding whether to expand the reach of respondeat superior.

A policy analysis thus is not sufficient to justify this proposed expansion of vicarious liability. This is not surprising since respondeat superior, even within its traditional limits, rests not so much on policy grounds consistent with the governing principles of tort law as in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities. It is in this light that the inadequacy of the motive test becomes apparent. Whatever may have been the case in the past, a doctrine that would create such drastically different consequences for the actions of the drunken boatswain in Nelson and those of the drunken seaman here reflects a wholly unrealistic attitude toward the risks characteristically attendant upon the operation of a ship. We concur in the statement of Mr. Justice Rutledge in a case involving violence injuring a fellow-worker, in this instance in the context of workmen's compensation:

"Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional make-up. In bringing men together, work brings these qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flare-up. * * * These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment."

Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15, cert. denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940); cf. Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 206 F.2d 435 (1953). Judge Cardozo reached a similar conclusion in Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522 (1920). Further supporting our decision is the persuasive opinion of Justice Traynor in Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 171 P.2d 5 (1946) [employer liable for violent acts of servant against employee of a subcontractor working on the same construction job], followed in Fields v. Sanders, 29 Cal.2d 834, 180 P.2d 684, 172 A.L.R. 525 (1947) [employer liable for violent acts of driver against another driver in traffic dispute].

Put another way, Lane's conduct was not so "unforeseeable" as to make it unfair to charge the Government with responsibility. We agree with a leading treatise that "what is reasonably foreseeable in this context [of respondeat superior] * * * is quite a different thing from the foreseeably unreasonable risk of harm that spells negligence * *. The foresight that should impel the prudent man to take precautions is not the same measure as that by which he should perceive the harm likely to flow from his long-run activity in spite of all reasonable precautions on his own part. The proper test here bears far more resemblance to that which limits liability for workmen's compensation than to the test for negligence. The employer should be held to expect risks, to the public also, [172] which arise 'out of and in the course of' his employment of labor." 2 Harper & James, The Law of Torts 1377-78 (1956). See also Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499, 544 (1961). Here it was foreseeable that crew members crossing the drydock might do damage, negligently or even intentionally, such as pushing a Bushey employee or kicking property into the water. Moreover, the proclivity of seamen to find solace for solitude by copious resort to the bottle while ashore has been noted in opinions too numerous to warrant citation. Once all this is granted, it is immaterial that Lane's precise action was not to be foreseen. Compare, for a similar problem in the law of damages, Petition of Kinsman Transit Co., 338 F.2d 708, 721-726 (2 Cir. 1964), cert. denied, Continental Grain Co. v. City of Buffalo, 380 U.S. 944, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965), but see also 388 F.2d 821 (2 Cir. 1968). Consequently, we can no longer accept our past decisions that have refused to move beyond the Nelson rule, Brailas v. Shepard S.S. Co., 152 F.2d 849 (2d Cir. 1945), cert. denied, 327 U.S. 807, 66 S.Ct. 970, 90 L.Ed. 1032 (1946); Kable v. United States, 169 F.2d 90, 92 (2 Cir. 1948),^[8] since they do not accord with modern understanding as to when it is fair for an enterprise to disclaim the actions of its employees.

One can readily think of cases that fall on the other side of the line. If Lane had set fire to the bar where he had been imbibing or had caused an accident on the street while returning to the drydock, the Government would not be liable; the activities of the "enterprise" do not reach into areas where the servant does not create risks different from those attendant on the activities of the community in general. Cf. Gordon v. United States, 180 F.Supp. 591 (Ct.Cl.1960); Trost v. American Hawaiian S.S. Co., 324 F.2d 225 (2 Cir. 1963), cert. denied, 376 U.S. 963, 84 S.Ct. 1125, 11 L.Ed.2d 981 (1964). We agree with the district judge that if the seaman "upon returning to the drydock, recognized the Bushey security guard as his wife's lover and shot him," 276 F.Supp. at 530, vicarious liability would not follow; the incident would have related to the seaman's domestic life, not to his seafaring activity, cf. Hartford Accident & Indemnity Co. v. Cardillo, supra, 112 F.2d at 17, and it would have been the most unlikely happenstance that the confrontation with the paramour occurred on a drydock rather than at the traditional spot. Here Lane had come within the closed-off area where his ship lay, cf. McConville v. United States, 197 F.2d 680 (2 Cir. 1957), to occupy a berth to which the Government insisted he have access, cf. Restatement, Agency 2d, § 267, and while his act is not readily explicable, at least it was not shown to be due entirely to facets of his personal life. The risk that seamen going and coming from the Tamaroa might cause damage to the drydock is enough to make it fair that the enterprise bear the loss. It is not a fatal objection that the rule we lay down lacks sharp contours; in the end, as Judge Andrews said in a related context, "it is all a question [of expediency,] * * * of fair judgment, always 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." Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 354-355, 162 N. E. 99, 104, 59 A.L.R. 1253 (1928) (dissenting opinion).

Since we hold the Government responsible for the damage resulting from Lane's turning the wheels, we find it [173] unnecessary to consider Bushey's further arguments that liability would attach in any event because of later inaction of Lane and others on the Tamaroa; and that in libels in rem, whose principles are here applicable by virtue of § 3 of the Suits in Admiralty Act, ordinary rules of agency are inapplicable and the ship is liable for anything ship-connected persons cause it to do. Cf. The China, 74 U.S. (7 Wall.) 53, 19 L.Ed. 67 (1868); Burns Bros. v. Central R.R. of N. J., 202 F.2d 910, 914 (2 Cir. 1953).

Affirmed.

[1] The district court also dismissed a libel by the United States against the drydock owner for damage to the vessel; the United States has not appealed from that ruling.

[2] This contention has not been pressed on appeal.

[3] The discussion in Gilmore & Black, Admiralty, § 11-11 (1957), which the judge cited, 276 F.Supp. at 523, is thus largely obsolete — a good instance of the compelling need for a revised edition of this indispensable work.

[4] Lane disappeared after completing the sentence imposed by a courtmartial and being discharged from the Coast Guard.

[5] We are not here speaking of cases in which the enterprise has negligently hired an employee whose undesirable propensities are known or should have been. See Koehler v. Presque-Isle Transp. Co., 141 F.2d 490 (2 Cir.), cert. denied, 322 U.S. 764, 64 S.Ct. 1288, 88 L.Ed. 1591 (1943).

[6] The record reveals that most modern drydocks have automatic locks to guard against unauthorized use of valves.

[7] Although it is theoretically possible that shipowners would demand that drydock owners take appropriate action, see Coase, The Problem of Social Cost, 3 J.L. & Economics 1 (1960), this would seem unlikely to occur in real life.

[8] The Brailas decision relied on Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299 (1922), which was applied in St. Louis-San Francisco R. Co. v. Mills, 271 U.S. 344, 46 S.Ct. 520, 70 L.Ed. 979 (1926); Atlantic Coast Line R. Co. v. Southwell, 275 U.S. 64, 48 S.Ct. 25, 72 L.Ed. 157 (1927); and Atlanta & Charlotte Air Line R. Co. v. Green, 279 U.S. 821, 49 S.Ct. 350, 73 L.Ed. 976 (1929). However, we agree with Chief Judge Murrah that the Supreme Court would not follow Davis today, despite its author's eminence. Copeland v. St. Louis-San Francisco R. Co., 291 F.2d 119, 121, 123 (10 Cir. 1961) (dissenting opinion).

[919 F.2d 1208] Thomas A. Withrow, David J. Bodle, and Scott S. Morrisson, Henderson, Daily, Withrow & Devoe, Indianapolis, Ind., and Richard K. Levi, Earnest, Foster, Eder, Levi & Northam, Rushville, Ind., for plaintiff-appellant.

Gerald A. Coraz, Asst. U.S. Atty., Deborah J. Daniels, U.S. Atty., Office of the U.S. Atty., John S. Langan, Davis, Davis & Langan, Indianapolis, Ind., and E. Edward Dunsmore, Knightstown, Ind., for defendants-appellees.

Before POSNER, RIPPLE and MANION, Circuit Judges.

POSNER, Circuit Judge.

While driving to work early one morning Robert Farringer, a rural mailman, struck a car driven by the plaintiff's decedent, Glenn Konradi, killing him. The suit is against the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq., with a pendent-party claim under state law against Farringer. The basis of both claims is that Farringer's negligence in failing to yield the right of way to Konradi at an intersection was the cause of the accident. The district judge dismissed the suit on the government's motion for summary judgment. He ruled that the accident had not occurred within the scope of Farringer's employment by the Postal Service, which let off the Service; he then relinquished jurisdiction over the pendent party claim.

The parties agree that the question whether the accident occurred within the scope of Farringer's employment is governed [919 F.2d 1209] by Indiana law, 28 U.S.C. Sec. 1346(b); Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam), that under Indiana law it is a question of fact, Gibbs v. Miller, 152 Ind.App. 326, 329, 283 N.E.2d 592, 594 (1972), and therefore that the judge was right to dismiss the case on summary judgment only if no reasonable jury, presented with the evidence that was before the judge when he ruled, could have answered the question in the plaintiff's favor. One could quarrel with "therefore," since whether a question is one of fact or of law has been held to fall on the procedure side of the substance/procedure divide that Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), established. Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958); Nunez v. Superior Oil Co., 572 F.2d 1119, 1125 (5th Cir.1978); Deland v. Old Republic Life Ins. Co., 758 F.2d 1331, 1335 (9th Cir.1985). Although the present case is not a diversity case, Erie was an interpretation of the Rules of Decision Act, 28 U.S.C. Sec. 1652, and its principles apply to any case in federal court in which state law supplies the rule of decision, Morgan v. South Bend Community School Corp., 797 F.2d 471, 474 (7th Cir.1986); Hernas v. City of Hickory Hills, 507 F.Supp. 103, 105 (N.D.Ill.1981); Wright, Miller & Cooper, Federal Practice and Procedure Sec. 4515 (1982), as it does here by virtue of 28 U.S.C. Sec. 1346(b). Still, circumstances alter cases--or at least may. Byrd and the cases following it rely heavily on the Seventh Amendment, which has no application to the Federal Tort Claims Act, for the proposition that federal law determines when a question is factual, and therefore a jury issue, in a case tried in a federal court; the case for applying federal law to the law-fact issue in this case is therefore weakened. But so is the case for applying state law to the issue. Congress has given the federal courts exclusive jurisdiction over tort claims against the federal government, incorporating local law for the convenience of the federal government rather than to vindicate state policies--though on the other hand the states do have an interest in conduct of federal employees that injures the state's citizens.

All this is as academic as it is interesting. No party argues in this case that federal law rather than state law should determine whether scope of employment is to be treated as a legal or as a factual question--perhaps believing, plausibly enough, that the question would be decided the same way under either law. Without further ado, therefore, we can turn to the merits.

The general rule is that an employee is not within the scope of his employment when commuting to or from his job. As the Supreme Court of Indiana put it the last time it addressed the issue, more than three decades ago, "an employee on his way to work is normally not in the employment of the corporation." Biel, Inc. v. Kirsch, 240 Ind. 69, 73, 161 N.E.2d 617, 618 (1959) (per curiam). The rub is "normally," and though omitted in the statement of the rule in Pursley v. Ford Motor Co., 462 N.E.2d 247, 249 (Ind.App.1984), this weasel word is definitely required for the sake of accuracy. In State v. Gibbs, 166 Ind.App. 387, 336 N.E.2d 703 (1975), the employer furnished the employee with a car for use on the job but also allowed him to take it home at night. The accident occurred while he was driving home, and the employer was held liable. In Gibbs v. Miller, supra, the employer was held liable for an accident that occurred when its traveling salesman, who used his own car to make his rounds, was driving home for lunch from an appointment with a customer; he had other appointments scheduled for that afternoon. On the other hand, in City of Elkhart v. Jackson, 104 Ind.App. 136, 10 N.E.2d 418 (1937), which also involved an employee driving the company car at lunch time--this time he was returning to work after lunch when the accident occurred--the accident was held to be outside the scope of employment. Biel, Inc. v. Kirsch, supra, was another company-car case, and again the accident (which occurred while the employee was driving the car to work one morning) was held to be outside the scope of employment--but the employee happened also to be the employer's owner, [919 F.2d 1210] and, it seems, was using the car for her personal convenience rather than on company business. In City of Crawfordsville v. Michael, 479 N.E.2d 102 (Ind.App.1985), the employee was using the company car (actually truck) for personal business on his day off when the accident occurred; he too was held not to have been acting within the scope of his employment.

It is impossible to find the pattern in this carpet without a conception of what the law is trying to accomplish by making an employer liable for the torts of his employees committed within the scope of their employment and by excluding commuting from that scope--"normally." The Indiana decisions are few and not articulate on these issues, and although there are plenty of cases in other states, they use a similar approach and are similarly reticent about the considerations that animate their decisions. Annot., Employer's Liability for Negligence of Employee in Driving His Own Car, 52 A.L.R.2d 287, 303, 311 (1957); Annot., Employer's Liability for Employee's Negligence in Operating Employer's Car in Going to or from Work or Meals, 52 A.L.R.2d 350, 354, 362-63 (1957). There is however a rich scholarly literature on vicarious liability, specifically of employers, from which clues can be gleaned. Sykes, The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines, 101 Harv.L.Rev. 563 (1988), is particularly helpful; we have relied on it previously, in an opinion by Judge Manion, Wilson v. Chicago, Milwaukee, St. Paul & Pac. R.R., 841 F.2d 1347, 1352, 1356 n. 2 (7th Cir.1988), to help decide a scope of employment issue.

Often an employer can reduce the number of accidents caused by his employees not by being more careful--he may already be using as much care in hiring, supervising, monitoring, etc. his employees as can reasonably be demanded--but by altering the nature or extent of his operations: in a word by altering not his care but his activity. This possibility is a consideration in deciding whether to impose strict liability generally. Anderson v. Marathon Petroleum Co., 801 F.2d 936, 939 (7th Cir.1986); Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 652 (7th Cir.1986); Shavell, Strict Liability versus Negligence, 9 J. Legal Stud. 1 (1980). The liability of an employer for torts committed by its employees--without any fault on his part--when they are acting within the scope of their employment, the liability that the law calls "respondeat superior," is a form of strict liability. It neither requires the plaintiff to prove fault on the part of the employer nor allows the employer to exonerate himself by proving his freedom from fault. The focus shifts from changes in care to changes in activity. For example, instead of dispatching its salesmen in cars from a central location, causing them to drive a lot and thus increasing the number of traffic accidents, a firm could open branch offices closer to its customers and have the salesmen work out of those offices. The amount of driving would be less (an activity change) and with it the number of accidents. Firms will consider these tradeoffs if they are liable for the torts of their employees committed within the scope of their employment, even if the employer was not negligent in hiring or training or monitoring or supervising or deciding not to fire the employee who committed the tort. This liability also discourages employers from hiring judgment-proof employees, which they might otherwise have an incentive to do because a judgment-proof employee, by definition, does not have to be compensated (in the form of a higher wage) for running the risk of being sued for a tort that he commits on his employer's behalf. He runs no such risk; he is not worth suing.

If it is true that one objective of the doctrine of respondeat superior is to give employers an incentive to consider changes in the nature or level of their activities, then "scope of employment" can be functionally defined by reference to the likelihood that liability would induce beneficial changes in activity. It becomes apparent for example that the employer should not be made liable for a tort committed by the employee in the employee's home, for there is no plausible alteration in the activity of [919 F.2d 1211] the employer that would substantially reduce the likelihood of such a tort. This overstates the case a bit; one can imagine a plaintiff's arguing that if the employer had not made the employee work so hard the employee would have been more alert and therefore more careful and the accident would not have occurred. But the law has to draw some lines for ease of administration, and a rough-and-ready one is between accidents on the job and accidents off the job--including accidents while commuting--in recognition of the fact that the employer's ability to prevent accidents by employees is normally much less when the employees are not at work. Indiana recognizes, however, that the line is indeed a rough one, and it allows juries to cross it when particular circumstances make the line inapt to the purpose that it seeks to implement. Whether it is wise to give juries such discretion is not our business, at least given the parties' agreement that the state rule empowering the jury to decide whether the accident was within the scope of the employment governs this case.

The Postal Service, Farringer's employer, requires its rural postal carriers to furnish their own vehicle (Farringer's was a pick-up truck) in making their rounds. Postal Operations Manual Sec. 634.21 (1985). The alternative would be for the Service to buy or lease mail trucks for these carriers to use. A possible consequence of the choice it has made is to increase the amount of driving over what it would be if the Service furnished the vehicles. No family with one car (and precious few with two) would want to leave its car at work and thereby have to find an alternative method of commuting. The Postal Service's rule pretty much guarantees that its mailmen will drive to and from work, and by doing this it increases the amount of driving compared to a system in which, since the mailman does not need to have his own car at work, he can take a train or bus or join a car pool. One cost of more driving is more accidents, and this cost can be made a cost to the Postal Service, and thus influence its choice between furnishing its mailmen with vehicles and requiring them to furnish their own, if the scope of employment is defined for purposes of tort law as including commuting in all cases in which the employee is required to furnish a vehicle for use at work. The argument for liability might actually seem stronger than if the employer had furnished the vehicle. But it must be borne in mind that the question of the employer's liability in cases involving a company-owned vehicle arises only when the vehicle is being used outside of work time; and here it can be argued that a person furnished with a company car is apt to drive more, and more carelessly, than if he were using his own car.

All this is highly speculative. The Postal Service's rule is limited to rural deliverymen, and neither public transportation nor car pooling is common in rural America. Especially since any expansion in tort liability is bound to be a source of litigation costs and judicial burdens, we could not be sufficiently confident concerning the effects of liability to be justified in laying down a general rule that employers who require their employees to use their own vehicle on the job, or permit them to use a company vehicle off the job, are liable for the employees' accidents while commuting in that vehicle; nor would that be a plausible extrapolation from the Indiana cases. But additional evidence in this case points to employer liability. According to testimony that for purposes of this appeal (only) we must take to be true, Farringer's postmaster required the postal carriers to take the most direct route in driving to and from work, and hence not to divagate for personal business. Nor was the carrier to stop for such business, or give anyone a ride. And he was to fasten his seatbelt (this was before Indiana passed a seatbelt law). The record does not reveal the reasons for these requirements. They may just reflect the Postal Service's fear of being held liable for commuting accidents and its concomitant desire to minimize the length of the trip and number of persons in the employee's car in order to reduce the likelihood of accidents. If this is right the plaintiff can do nothing with the requirements, because a person's fear of being held liable is not a reason for the law's [919 F.2d 1212] holding the person liable. An employer should not be held liable, and therefore penalized, for taking steps rationally designed to minimize its liability by increasing the safety of its operations.

Another possibility, however, is that the Postal Service was trying to minimize time lost by its employees from work and its workers' compensation costs, for the government interprets the federal employees' compensation law to include the commuting accidents of postal workers. U.S. Dept. of Labor, Wage and Labor Standards Administration, Bureau of Employees' Compensation, FECA Memorandum No. 104 (Oct. 24, 1969), interpreting 5 U.S.C. Sec. 8102(a); but see Avasthi v. United States, 608 F.2d 1059 (5th Cir.1979). This is not to suggest that the scope of liability for workers' compensation purposes is identical to that for liability to third-party victims of those workers' torts; in fact it is broader. Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499, 544-45 (1961). The point is different. If the Postal Service insists for time's sake that the carrier always travel to and from work by the most direct route, which may not be the safest route, the Service should be liable for the accidents that result from this directive; it has made them more likely.

The rules of commuting that the postmaster has imposed upon his carriers may also or instead reflect a belief that the work of a rural deliveryman begins when he gets into his car in the morning and ends when he gets out of it in the evening. For during all that time he has control over an essential instrumentality of postal service--the delivery van--albeit supplied by the deliverer. This underscores the earlier point that the Postal Service has made a choice between buying its own fleet of vans and pressing its employees' vans into service, and may bring the case within the orbit of State v. Gibbs. It is as if the Postal Service had decided to store its vans at night in its employees' garages. But against this is the fact that the mileage allowance which the Service gives its employees when they use their own vehicle on the job does not include the use of the vehicle in commuting. Moreover, there is no general rule making the employer liable for a commuting accident merely because he supplied the vehicle. Biel no doubt is a special case, and so is Michael, where the employer-owned car was being used purely for personal business, since it was the employee's day off; and in State v. Gibbs the employer was held liable. On the other hand Jackson seems indistinguishable from State v. Gibbs, yet was decided in favor of the employer. The analysis sketched above suggests that there is no magic to the employer's supplying the car; the functional argument (promotion of safety) for employer liability is as strong if he makes the employee bring his own car. Gibbs v. Miller imposed liability in such a case. Of course the two Gibbs cases are factually different from our case--every case is factually different from every other case--but that is no warrant for refusing to follow them in this case unless the factual differences between them and this case are connected with a difference in principle.

After and because of the accident, the Postal Service fired Farringer. This may have been because it feared that he might have a similar accident, for which the Service would incontestably be liable, while on the job; another possibility however is that the Service considered the tort he did commit to have occurred on the job. But this consideration seems merely to duplicate the one discussed in the preceding paragraph, and it is therefore entitled to no weight.

Not only may the imposition of liability on the Postal Service be consistent with most of the Indiana cases (indeed all but Jackson ); it is consistent with all three of the formulas that courts in Indiana and elsewhere intone when they are trying to generalize about scope of employment. Reed v. House of Decor, Inc., 468 So.2d 1159, 1161 (La.1985). By driving to and from work Farringer conferred a benefit on his employer because he was bringing an essential instrumentality of the employer's business. (True, the employer would not have cared if Farringer had left his truck in the post office parking lot and [919 F.2d 1213] thumbed a ride to work, but few employees would thus forgo all personal use of their vehicle.) The employer exerted substantial control over the employee's commuting, as shown by the regulations discussed earlier. And finally the employee while commuting was in the service of the employer because he was keeping and maintaining the instrumentality.

These "tests" should not be thought conclusive. Tests divorced from purposes tend not to be useful, let alone conclusive, and the linkage between the tests and what the discussion in this opinion conjectures is the underlying purpose of the scope of employment concept is obscure. The law has drawn a line between at work and at home but treats commuting as an intermediate zone that can be placed within or outside the scope of employment depending on circumstances, though the presumption is in favor of outside. The purpose of a doctrine determines what circumstances are relevant. The purpose of this doctrine may be to induce the employer to consider activity changes that might reduce the number of accidents. One possible change might be to substitute a fleet of postal vans for the employees' personal vehicles driven to and from work daily perhaps over substantial distances.

In attempting to predict how the Indiana courts would have decided this case had it been brought in such a court (which it could not have been, of course, because the federal government has not consented to be sued in state courts), this court necessarily is speculating. There is no reason to apologize for this acknowledgment. The decision of a federal court in a diversity case, or in any other case in which state law supplies the rule of decision, is an exercise in predicting how the highest court of the state would decide the case if it were presented to it. When the relevant decisions of the state's courts do not articulate the grounds that animate their results, and the issue is not suitable for certification to the state supreme court (perhaps because as here it is highly fact-specific), the federal court has no choice but to speculate as to what the true grounds might be or to supply grounds that it thinks might recommend themselves to the state's courts in the future. It is in that spirit that this opinion has sought to bring modern scholarship to bear on the vexing issue of scope of employment in commuting cases.

The unavoidably speculative character of the analysis furnishes an additional reason for believing that the district court acted prematurely in granting summary judgment. The more nebulous or unsettled the legal standard, the more difficult it should be to exclude contested facts from consideration on the ground that they are immaterial. If the Indiana rule excluding commuting from the scope of employment were strict, the Postal Service would be right to argue that it is immaterial why it fired Farringer. But as it is not strict, the question may be material. Perhaps the Postal Service fired Farringer because it considers commuting to be part of working and because it has a policy of firing people who kill tortiously in the course of their employment with the Service. The scope of federal employees' compensation may be irrelevant to scope of employment for liability purposes, but then again it may not be. Perhaps as the facts are developed it will become evident that Farringer was not acting within the scope of his employment, but on the basis of the record compiled thus far it cannot be said that no reasonable jury could find that he was.

It should go without saying that the recitation of facts in this opinion is tentative; the facts may appear quite different after further proceedings. In particular the nature of and authority for the various rules to which the Knightstown Post Office where Farringer worked, as distinct from the Postal Service itself, subjected Farringer are wholly unclear.

One final point. The plaintiff joined Farringer as a pendent party defendant, and the district court dismissed Farringer from the suit without prejudice after deciding to dismiss the main claim, that is, the claim against the United States. The court did this on the familiar ground that, with immaterial exceptions, when the main claim [919 F.2d 1214] drops out before trial the court should relinquish jurisdiction over all pendent claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). The result was right, but not the reasoning. The Supreme Court had held several months before the judgment in this case that there is no pendent party jurisdiction in cases brought under the Tort Claims Act. Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989). The district court never acquired jurisdiction over Farringer (for he and the decedent, whose citizenship is what counts for diversity purposes although his personal representative is the actual party, 28 U.S.C. Sec. 1332(c)(2), are both citizens of Indiana)--against whom, by the way, the plaintiff has filed a parallel suit in state court. Although Finley was decided after the present suit was brought, there is no reason not to apply it to this case; the harm to the plaintiff is slight, since she has another and solvent defendant (the United States) to pursue in this case, and a suit against Farringer in state court.

The dismissal of Farringer (without prejudice, of course) is affirmed, albeit on a different ground from the district judge's; but the dismissal of the United States is reversed and the case remanded for further proceedings consistent with this opinion. Costs in this court to the plaintiff.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

RIPPLE, Circuit Judge, concurring.

I concur in the judgment of the court. The record before us certainly contains a genuine issue of triable fact as to whether Mr. Farringer was in the scope of his employment. It is not at all clear whether, at the time of the accident, Mr. Farringer was acting for and on behalf of the Postal Service or was under the control of the Postal Service. In dealing with this issue on remand, the district court must assess, in my view, the totality of the circumstances--not simply the reason for Mr. Farringer's discharge.

MANION, Circuit Judge, concurring.

The majority opinion examines several scenarios of what might have occurred. As with any summary judgment appeal, however, we examine one question--is there any genuine issue as to any material fact that precludes summary judgment as a matter of law? In my view there may be one, and thus I am willing to concur in the remand.

Indiana law is clear that, with very limited exceptions, an employee is not within the scope of his employment while driving to and from work. The facts in this case present fewer "incidental benefits" than the facts of the Indiana Supreme Court case setting forth this general rule. See Biel, Inc. v. Kirsch, 240 Ind. 69, 161 N.E.2d 617 (1959). Unless we have some exceptional circumstance, a rural postal worker driving to work is on his own and not within the scope of his employment.^[1]

In an attempt to circumvent this rule, the plaintiff alleges that Farringer's postmaster required him and other carriers who drove their own car to conduct no personal business en route to and from work, to take the most direct route, not to carry any passengers, and to fasten their seatbelts. Although these are simply allegations, even if taken as true the majority opinion appropriately minimizes their consequence (ante p. 1212). These allegations are not sufficient to invoke the two narrow factbound exceptions to Biel as established by the Indiana Court of Appeals.

[919 F.2d 1215] In Gibbs v. Miller, 152 Ind.App. 326, 283 N.E.2d 592 (3d Dist.1972), a salesman was in an accident while returning home for lunch from an appointment with a customer. He was not expected in the office that day. He had another appointment scheduled following lunch, and also planned to do some paperwork at home during lunch. He was being reimbursed for mileage from his home to the morning appointment and back. A jury found the employer liable, and the appeals court, although troubled by the paucity of evidence, refused to overturn the jury verdict as a matter of law.

In State v. Gibbs, 166 Ind.App. 387, 336 N.E.2d 703 (1st Dist.1975), a jury held the state liable for $100,000 following an accident involving an employee of the Indiana State Highway Commission. The employee's job involved considerable driving, so the state furnished him with a car that was checked out to him at all times. He was allowed to drive it home after work and to lunch during the work day, but was not to use it for other personal business. Although he worked a 7:30 to 5:00 day, he considered himself on call 24 hours a day. He finished conducting tests at 5 p.m. on the night of the accident and drove to the office to speak with his supervisor. The supervisor wasn't there, so after reading notes left on his desk the employee headed for several local restaurants where his supervisor sometimes went after work. He still could not find the supervisor, and eventually drove to another town to eat dinner. The injury occurred after dinner on his way home. Again, the appeals court refused to reverse the jury verdict despite its concern over the slight evidence of employer liability. The court emphasized that the employee was driving a state vehicle home from work so he could return directly to his job in the morning, and that he was on call 24 hours a day. Inexplicably, the Biel case was not even cited.^[2]

Our case is factually different than either of those narrow exceptions to the general rule--there is virtually no evidence that Farringer was in the scope of his employment. Farringer was driving his own car to work, not the government's. He was not providing any benefit to the government while en route; his job did not begin until he reached the post office to sort and pick up his mail for delivery. He was not, as in Gibbs v. Miller, going home for lunch and to do some paperwork in between business appointments, while receiving payment for mileage incurred on the trip.^[3] He was not, as in State v. Gibbs, properly driving a state-owned vehicle home from work following the day's activities, while on call 24 hours a day. Rather, he was simply travelling to work. Until he is at work, Indiana does not impose his misdeeds on the employer.

This case is much closer to Biel. In Biel, a woman who served as president of a corporation was in the habit of driving a company car to and from work. Although the company paid for the oil and gas, taxes and upkeep on the vehicle, the Indiana Supreme Court held that Mrs. Biel was not within the scope of her employment when driving the company car to work. Even if we accept Farringer's unsupported (and illogical) contentions that he was required to follow a certain route, to wear a seat belt, and to not take passengers on his way to work, this case is not factually close to the two state appellate court cases providing narrow exceptions to the rule set out by the Indiana Supreme Court.

The only pertinent question having some bearing on whether Farringer was in the scope of his employment centers on his termination, supposedly because of the accident. If he was terminated because of some policy regulating his travel to and from work, and if that policy is so encumbering that it puts him in the scope of [919 F.2d 1216] employment even while driving to work, a trial may be warranted to determine if those facts merit an exception under Indiana law. But if that policy is nothing more than a provision that drivers with poor driving records cannot remain as rural postal drivers, or something similarly general, summary judgment would be appropriate. Aside from that one possibility, I do not agree with this court that the "employer exerted substantial control over the employee's commuting, as shown by the regulations discussed...." The opinion acknowledges those tests are not conclusive and that "we necessarily are speculating." Indiana law is clear that "an employee on his way to work is normally not in the employment of the corporation." Biel, 161 N.E.2d at 618. Unless Farringer was terminated for violating some specific driving policy covering rural postal drivers on their way to and from work, the normal rule should apply and summary judgment in favor of the government is entirely appropriate.

[1] As we recognized in Pace v. Southern Express Company, 409 F.2d 331, 333 (7th Cir.1969), Indiana law is "well settled" that an employee travelling to or from work is not within the scope of his employment. This rule has been applied in a variety of cases under a variety of factual circumstances. See e.g.: City of Crawfordsville v. Michael, 479 N.E.2d 102 (Ind.App. 1 Dist.1985); Pursley for Benefit of Clark v. Ford Motor, 462 N.E.2d 247 (Ind.App. 2 Dist.1984); Pace v. Couture, 150 Ind.App. 220, 276 N.E.2d 213 (1972); Marion Trucking Co. v. Byers, 121 Ind.App. 592, 97 N.E.2d 635 (1951); North Side Chevrolet, Inc. v. Clark, 107 Ind.App. 592, 25 N.E.2d 1011 (1940); Neyenhaus v. Daum, 102 Ind.App. 106, 1 N.E.2d 281 (1936); Haynes v. Stroh, 99 Ind.App. 595, 193 N.E. 721 (1935).

[2] State v. Gibbs was explicitly narrowed by a later court of appeals case. In City of Crawfordsville, supra, 479 N.E.2d at 104, the court held that "Gibbs is an exception to the well-settled rule" of Biel, and that, "[a]s such, we are hesitant to apply it beyond its specific facts."

[3] In addition to salary and benefits Farringer did receive an allowance for mileage and maintenance. However, this allowance was based only on the miles covered by the mail carrier during delivery of his route, and not on the distance he travelled to and from work. See Supplemental Appendix of Appellee at 122.

[257 So.2d 96] Pozen, Pestcoe, Gold & Gold, Miami, for appellants.

Preddy, Haddad, Kutner & Hardy, Miami, for appellee.

Before SWANN, C.J., and PEARSON and HENDRY, JJ.

HENDRY, Judge.

Appellants were plaintiffs in an action against the defendants to recover damages for an assault and battery made upon plaintiffs by defendant driver of a bus of Red Top Sedan Service, Inc.

The amended complaint charged in two of the counts that Red Top's driver, Harvey Breines drove its bus in such a manner as to intentionally run plaintiffs' vehicle off the highway, and that defendant driver assaulted and battered both plaintiffs. Count III alleged that defendant Red Top was negligent in hiring Breines and entrusting him with a dangerous instrumentality in view of his prior propensity for violence of the kind and nature described in the complaint.

Defendants moved to dismiss the amended complaint for failure to state a cause of action and it was denied. An answer of general denial was filed. The cause was set for jury trial on the issues. At the conclusion of plaintiffs' case the trial judge granted defendant Red Top's motion for directed verdict. The defendant driver was voluntarily dismissed from the suit prior thereto.

The plaintiffs have appealed from the final judgment in favor of the defendant.

The evidence adduced showed that Vincent Forster and his wife Lillian, were driving east on the Airport Expressway after having stopped at the airport to let a friend get out of their car. A large bus, previously behind the plaintiffs' vehicle, drove up beside their car. It began driving closer and closer, pushing their car over toward the median strip. The bus then pulled ahead and in front of the plaintiffs' car and came to an abrupt stop. In order to avoid a collision Mr. Forster slammed on his brakes.

While Mr. Forster was in his car strapped in his seat with the seat belt, the bus driver, Breines, went back to the Forsters' car. He jerked open the door on the side of the driver and swore that no 'old bastard' would delay his schedule and 'hold him up from getting to the Beach.' Thereupon, he reached for the keys and began pushing Mr. Forster in the face. When Mrs. Forster tried to protect her husband's face, Breines struck her also.

Breines had been employed by Red Top as a driver of its limousines and buses for about one month prior to this incident. It was customary for him to drive Red Top's buses and limousines between the airport and Miami Beach. At the time of this occurrence he was on his way from the airport to Miami Beach to pick up a group of people.

Plaintiffs' counsel attempted to question Breines, while on the witness stand, regarding his criminal and driving records. Objections to the questions were interposed by the defendant's counsel and sustained by the court. Proffer was made showing convictions of violent crimes and traffic violations.

The court also sustained objections to questions propounded to officials of Red Top who were witnesses, relating to the hiring practices and procedures of the company.

Plaintiffs are urging reversal on two grounds: (1) that it was error for the trial court to direct a verdict for the defendant and, (2) that the court erred in sustaining defendant's objections to questions [257 So.2d 97] propounded by plaintiff's counsel to the defendant regarding his record of convictions of violent crimes and traffic violations; that the court further erred in denying the plaintiffs' right to question officials of Red Top regarding its employment practices.

First, appellants argue in support of reversal that where the bus company's employee forced plaintiffs' vehicle off the road without coming in contact with plaintiffs' vehicle, and then assaulted and battered plaintiffs because he believed they had delayed him in the performance of his duties, the bus company was vicariously liable for its driver's misconduct.

The trial court disagreed with appellant's contentions in this regard and held that the employee was not acting within the scope of his employment, but was performing an act entirely personal to himself and not in the prosecution of the master's business.

We have carefully considered the point in the light of the record, briefs and arguments of counsel and have concluded that the trial judge erred in directing a verdict for the defendant in that it is not in accord with the rules enunciated by this court in Hurst v. Krinzman, Fla.App.1970, 237 So.2d 333, and numerous other appellate decisions of the courts of Florida.

It appears to us that upon consideration of all the testimony and varying inferences and conclusions there were issues of fact which should have been submitted to a jury, under proper instructions. City of Miami v. Simpson, Fla.1965, 172 So.2d 435, 437; Sixty-Six, Inc. v. Finley, Fla.App.1967, 224 So.2d 381, 383 and cases cited; Columbia by the Sea, Inc. v. Petty, Fla.App.1963, 157 So.2d 190, 194.

Count III of the amended complaint was based upon the alleged negligence and conclusions of Red Top in hiring the defendant driver. It was error for the court to deny plaintiffs the right to submit evidence on this issue. Davis v. Major Oil Company, Fla.App.1964, 164 So.2d 558; Sixty-Six, Inc. v. Finley, supra.

The judgment appealed is reversed and the cause is remanded for further proceedings.

[285 So.2d 649] Horton & Perse, and Arnold R. Ginsberg; Fuller, Brumer, Moss & Cohen, Miami, for appellant.

Henry L. Oppenborn, Jr., and Sam Daniels, Miami, for appellees.

Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.

PER CURIAM.

The appellant seeks review of an adverse final judgment, entered pursuant to a directed verdict, in an action to recover damages for an assault and battery committed upon the appellant-plaintiff by a bus driver (defendant's employee).

The plaintiff boarded a County bus operated by James Koch. He placed a quarter in the fare box and the bus driver exchanged words with him regarding the fare being 30 cents, not 25 cents. Several blocks further, the plaintiff pulled the cord to signal the driver that he wanted to get off the bus, but the driver did not stop. The plaintiff again pulled the cord and the driver stopped in the center of the street. After the plaintiff got off the bus (when he had reached the sidewalk) he made an obscene gesture to the driver. When the driver saw the gesture, he pulled the bus off to the side of the road, stopped, and ran after the plaintiff, yelling at him. The driver kicked and beat the plaintiff, as a consequence of which the plaintiff was hospitalized. The plaintiff sued both the bus driver (Koch) and the County. At the trial of plaintiff's action against the County, both plaintiff and the County moved for directed verdicts at the close of the evidence. The plaintiff's motion was denied and the County's granted. Final judgment was entered on the directed verdict in favor of the County, from which the plaintiff appeals.

The appellant contends the trial court erred in granting the defendant's motion for directed verdict, when the following evidence existed from which a jury might lawfully find in favor of the plaintiff: That, because of the 'hot pursuit' of plaintiff by the bus driver, the contract of carriage had not terminated when the plaintiff was assaulted and the County could be found liable on the principles regarding the common carrier-passenger relationship; and that, because the bus driver was motivated by a desire to further the interests of his employer when he assaulted the plaintiff and because the assault was a continuation of the verbal altercation on the bus, the County could be found liable on the principles of respondeat superior, citing primarily Columbia By The Sea, Inc. v. Petty, Fla.App.1963, 157 So.2d 190; Forster v. Red Top Sedan Service, Inc., Fla.App.1972, 257 So.2d 95; Anno. 34 A.L.R. 372, and cases cited therein.

The appellee replies to this argument that Forster v. Red Top Sedan Service, Inc., supra, is inapplicable under the circumstances because in the cited case the conduct on the part of the injured party, which was impeding the progress of the bus towards the beach, was likely to continue as the bus proceeded down the expressway. The facts in the instant case are just the opposite. The passenger had alighted the bus and was across the street when he was attacked. His conduct could not have impeded the progress of the bus as it continued on its route. We believe the trial judge was correct in the entry of his order directing a verdict for the County. See: Weiss v. Jacobson, Fla.1953, 62 So.2d 904; White v. Alleghany Cab Co., Inc., S.Ct.N.Y.1941, 29 N.Y.S.2d 272; George v. Youngstown Municipal Ry. Co., 49 Ohio Law Abst. 412, 86 N.E.2d 916.

[285 So.2d 650] The other points urged for reversal have been examined and found to be without merit.

Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby affirmed.

Affirmed.

Dixon, DeJarnette, Bradford & Williams and H. Reid DeJarnette, Miami, for appellant.

Edward E. Fleming and Nichols, Gaither, Green, Frates & Beckham, Miami, for appellee.

THOMAS, Justice.

The appellee was awarded a verdict in her action against the appellant for injuries she received when she was struck by a motorcycle operated by Wayne Molesworth who was, at the time, delivering the morning issue of the Miami Herald.

There is no dispute about the negligence of Molesworth; in fact, it is conceded that [88 So.2d 277] he was at fault and that the appellee was injured as a result of his wrongdoing.

The question here for decision is the status of Molesworth at the time of the mishap. The appellant contends he was an independent contractor; the appellee insists he was an employee of the appellant and that appellant is therefore liable for the injury caused her.

For nearly twenty years newsboys have delivered the Miami Herald under a contract identical with, or similar to, the one involved in this litigation which contains the provision, among others, that 'the NEWSDEALER is a separate, independent contractor and not subject to the exercise of any control by the PUBLISHER over his method of distributing or otherwise handling the delivery of said newspaper within his territory other than as expressly set forth in this contract * * *.' (Italics supplied.)

The contract between the appellant and Molesworth carried the provisions that the appellant would furnish Molesworth, at a stipulated price, as many copies of daily and Sunday editions as he ordered, would supply him with the names and addresses of all persons wishing the newspaper to be delivered to them in the territory assigned to Molesworth, would credit the carrier for shortages of papers, and would credit Molesworth 'for subscriptions paid in advance * * *.'

The appellant asserts that the facts in the instant case so closely resemble those with which we dealt in Florida Publishing Co. v. Lourcey, 141 Fla. 767, 193 So. 847, that the present controversy may be determined in its favor on authority of that decision. The appellant also insists that the pivotal question is one of law notwithstanding the circuit judge's action in submitting the issue of Molesworth's status to the jury.

The appellant reminds us of a familiar criterion by which it may usually be determined whether one performing services is an independent contractor or employee, that is, roughly, if the one securing the services controls the means by which the task is accomplished, the one performing the service is an employee, if not, he is an independent contractor. The contract, says the appellant, by its very terms made the newscarrier an independent contractor, and any control exercised by appellant was directed to the result--not the manner of performance.

Before turning to the appellee's position, it seems logical to quote from the opinion in Florida Publishing Co. v. Lourcey, supra, the part appellant quoted in its brief because the language we will italicize brings into focus the issue in this appeal:

'The contract in terms provides that Seig 'shall at all times occupy the position of an independent contractor and control all ways, means, method of conveyance, and distribution relating to the proper performance and completion of the agreement. The corporation looks only to the party of the third part and said carrier to obtain the desired results as herein set out'.

'These provisions were ample to make Seig an independent contractor if they were not to all intents and purposes vitiated by other provisions of the contract or the practice of the parties under it. * * *

'The parts of the contract relied on to deprive it of its independent carrier relation are the provisions with reference to its termination, promoting the circulation of the corporation's newspapers, the free distribution of sample copies and the retention of subscription lists from the carrier including the practice of the carrier in the performance of these provisions.

* * *

* * *

'We find nothing in any of these requirements or the practice under them to deprive the contract of its independent character. It was in every respect lawful and normally without danger to others and Seig was subject to the will of the corporation only as to results of his work and he was permitted to perform it according to [88 So.2d 278] his own methods. * * *' (Italics supplied.)

The appellee contends that there was abundant evidence that the manner of the performance of Molesworth's services supported the conclusion that he was under the control of the appellant to such extent as to be an employee. In Sec. 220, Restatement of the Law of Agency, recognized in Margarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858, the important factors bearing on the subject are set forth. So the question, from appellee's standpoint, is whether or not the record supports the jury's finding that the newsboy was an employee because of the 'practice of the parties' under the contract regardless of the caption and language of the instrument.

We have detailed the provisions of the contract with reference to the obligations of the publisher. We now condense the contents of the contract defining the obligations of the newscarrier. He was to furnish the names of new subscribers, to pay to the appellant within a certain time money collected, to present within 48 hours claims for shortages in papers, to call attention to the appellant within six days to errors in statements, to handle The Miami Herald exclusively, to keep in confidence the names of subscribers, to select a substitute in the event he was unable to make his deliveries and be 'responsible' for the substitute, to bear all costs of enforcing the contract, to give bond for his faithful performance of the agreement, to acquaint any successor with the route and list of subscribers, to secure delivery of papers in good condition, and to undertake to increase the number of subscribers.

Either party could terminate the contract without cause on fifteen days' notice and the appellant could terminate it for cause without notice.

Our study of the contents of the contract, and particularly the part we have italicized, leads us to the belief that the instrument was intended by both parties to make Molesworth an independent contractor and we frankly say that we have this view not only because of the express conditions we have abridged but also because of the specific mention of an element we consider important, if not essential, that is, the method Molesworth was to employ in carrying the papers to the subscribers once he had received them from appellant. Not only in the contract but in the practical operation under it, the circumstances of which we will presently describe, it was left entirely to Molesworth to select the conveyance which he would use to transport the papers from the point of origin to the subscribers' front porches.

We turn now to see, from the testimony favorable to the appellee's contention, the nature of the services actually performed and the supervision the appellant exercised over the manner in which its newspapers reached the subscribers through Molesworth or, as appellee puts it, the supervision of the means by which Molesworth performed his work. The newsboy began his work at 4:30 in the morning by getting the papers and folding them. He then started on his route and at 6:30 he finished. If Molesworth overslept, the appellant's manager would go to his home and rout him out of bed. The newsboy was required to deliver the papers in an 'unwrinkled condition' and to accomplish this could fold the papers 'in threes or fours.' Although nobody described to him the exact way to fold the papers, he was evidently told that he could not fold them in 'biscuits.' The agent of the appellant apparently 'rode herd' on the newsboys to see that deliveries were made to the subscribers and 'that everything was going all right.'

It was the practice for complaints about the service to be made either to the appellant or the newsboy. If a subscriber did not receive his paper or had got one that was wet, the representative would see that the subscriber received a good paper and Molesworth would be fined ten cents. For each such improper delivery the carrier would get a yellow slip and if ten yellow slips, representing as many complaints, should be issued, the contract could be terminated. In case of a serious complaint the newspaper's representative would take [88 So.2d 279] the newsboy to the customer's home for a conference.

The appellant fixed the retail price of the paper. If payments for subscriptions were received in advance, the payment could be made either to the appellant or to Molesworth, but Molesworth was obligated to pay the appellant for the papers he received whether he collected from the subscribers or not. The newsboy was furnished with customers' cards and a ring on which to keep them. Weekly meetings were held by the appellant's representative and the newsboys for the general purpose of improving the business of appellant as well as the carriers.

We do not find that the extra-contractual activities of the contracting parties neutralized the provisions of the agreement which to us were obviously intended to make Molesworth an independent contractor.

Although we agree with the appellee that the facts peculiar to each case govern the decision, we turn now to Florida Publishing Co. v. Lourcey, supra, to see what supervision was exerted by the publisher over the newspaper distributor who, we decided, was an independent contractor under the contract and evidence in that case.

The similarity in degree of supervision is striking. For instance, we learn from the original record in the cited case that papers were required to be delivered within certain hours; complaints were made direct to the publisher; the publisher received advance payments for subscriptions; the newscarriers were required to attend promotional meetings; the publisher supplied subscribers with issues of the paper in case of mis-delivery or non-delivery, but the carrier was not fined; the carrier was under bond; and delivery tickets were supplied to the carrier by the publisher. The carrier furnished his own automobile but there was evidence, which we consider significant, that a representative of the publisher examined the vehicle periodically to see that it was in good condition.

We have studied the 'matters of fact' listed in the Restatement of the Law of Agency, supra, that are to be considered in 'determining whether one acting for another is a servant or an independent contractor.' In this consideration we have not found that every element is so clearly present as to establish beyond argument that the arrangement between the appellant and Molesworth was one of independent contractorship, but when all elements are taken together, we think the conclusion is sound. We have already written our view about 'the extent of control' exercised by the publisher over the details of the work, Sec. 220(2)(a). We have the definite opinion that newspaper boys as they perform their work generally in this country have a place in the pattern of American life that constitutes a 'distinct occupation,' Sec. 220(2)(b), and that the provisions of the contract in this case are harmonious with this idea. True, there was some supervision by the publisher's representative but while the newsboy was actually making his deliveries, he was acting alone and was a specialist, at least to the extent of following his route, remembering the addresses of subscribers who were in good standing, and collecting and properly accounting for funds coming into his hands, Sec. 220(c) and (d). The newscarrier furnished his own instrumentality, a motorcycle, Sec. 220(2)(e). The length of the engagement, or rather the condition for termination of the engagement, was specified in the contract, Sec. 220(2)(f). The method of payment, that is by the subscriber to the newsboy, was the compensation received under the contract, and the newsboy became indebted for papers delivered to him by the publisher whether or not he collected from the subscriber, Sec. 220(2)(g). We do not doubt that distribution of newspapers is a part of the regular business of the publisher but there is no reason that this cannot be done by independent contract, Sec. 220(2)(h). From the contract it is clear to us that the parties believed they were making Molesworth an independent contractor, Sec. 220(2)(i).

We are satisfied that the salient facts were not in dispute and that the basic [88 So.2d 280] question was one of law. Having concluded that Molesworth was an independent contractor, it follows that the judgment should be----

Reversed.

DREW, C. J., and O'CONNELL and BARNS, JJ., concur.

[597 P.2d 1224] Appeal from the District Court of Oklahoma County; Carmon Harris, judge.

AFFIRMED.

Phillip W. Redwine, Norman, Foliart, Mills & Niemeyer, Oklahoma City, for appellant.

Harry R. Palmer, Jr., Oklahoma City, for appellee.

[597 P.2d 1225] REYNOLDS, Judge:

Mrs. C. L. Murrell, plaintiff in the trial court, appeals the order sustaining the motion for summary judgment in favor of co-defendant Oklahoma Publishing Company (appellee), in a suit for damages resulting from an alleged assault and battery by co-defendant Bruce Goertz.

On August 27, 1976, Bruce Goertz was making monthly collections for the delivery of appellant's morning newspaper, the Daily Oklahoman, which is published by appellee. Appellant questioned Goertz concerning damage to appellant's screen door caused by the newspaper carrier throwing the newspaper into it. An argument ensued culminating in appellant slapping Goertz who in turn struck appellant. As a result thereof, appellant was allegedly injured, requiring medical treatment and subsequent hospitalization. Appellant filed suit in the District Court of Oklahoma County seeking a total of $52,500 for past and future medical expenses, pain and suffering, and exemplary damages.

Appellant's petition contends that Goertz was a servant of appellee either by agreement between the co-defendants, or by appellee creating the apparent belief in appellant that Goertz was a servant by allowing Goertz to deliver the paper, advertise that product, and to collect for accounts due. Both appellee and Goertz answered denying that Goertz was appellee's servant.

Pursuant to District Court Rule 13, appellee filed a motion for summary judgment which was sustained by the trial court. The trial court then denied appellant's motion for new trial and this appeal was perfected.

A summary judgment is properly granted only where the pleadings, exhibits, admissions, and depositions present no substantial controversy as to material facts or issues. Weeks v. Wedgewood Village, Inc., Okl., 554 P.2d 780 (1976). The movant must show that there is no substantial controversy as to the material facts or issues. Once the movant has accomplished this, the opponent then has the burden of showing that evidence is available that would justify a trial of the issue. Runyon v. Reid, Okl., 510 P.2d 943 (1973).

The line of demarcation between an independent contractor and a servant is not clearly drawn. An independent contractor is one who engages to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as to the result thereof. Miller Construction Co. v. Wenhold, Okl., 458 P.2d 637 (1969). The parties agree that the decisive test for determining whether a person is an employee or an independent contractor is the right to control the physical details of the work. Dodd v. Rush, Okl., 406 P.2d 261 (1965).

To determine if a person is a servant or an independent contractor, one must look to the facts of each case. Hartwig v. Benham Engineering Co., Okl.App., 519 P.2d 932 (1974). If the evidence concerning the status of a party defendant is reasonably susceptible of but a single inference, the question is one purely to be decided by the court. Coe v. Esau, Okl., 377 P.2d 815 (1963). Where the defendant's status forms a material issue in the case and the facts bearing on that issue are disputed, or where there is room for reasonable difference of opinion as to the proper inference to be drawn from the known facts, the issue is for the jury under proper instructions by the court, Morian v. Lollis, Okl., 371 P.2d 473 (1962), and it is error to withhold the issue from their determination. Texaco, Inc. v. Layton, Okl., 395 P.2d 393 (1964).

Appellant contends that the distribution of papers and the collection of money therefor is an integral part of appellee's business. Appellant cites the following factors as indicative of the high degree of control appellee possesses over the physical details of the work: ultimate control over [597 P.2d 1226] the territorial boundaries of Goertz's route; appellee set a standard policy that paper deliveries be completed by 6 a. m.; appellee set policy that all papers were to be held by rubber bands; customers who were missed by the carrier called appellee to report it; complaints concerning the service were lodged with appellee; and new subscribers called appellee to initiate newspaper service.

Appellee submits that the affidavit of Russell Westbrook and Goertz's deposition reveal that Goertz had no contact with appellee. Westbrook stated that he was an independent newspaper distributor for appellee and that he employed Bruce Goertz as an independent carrier salesman. Westbrook further stated that Goertz was responsible only to him for the delivery of the newspapers and was in no way under the supervision, dominion, and control of appellee. By the terms of Westbrook's contract, he was an independent contractor and likewise not subject to the supervision, dominion, and control of appellee as to the manner and method of performing his job. Appellee further cites the statements of Westbrook and Goertz that Goertz was collecting money for Westbrook at the time of the incident with appellant, and that appellee received money only from Westbrook.

From a review of the record we conclude that the evidence is reasonably susceptible of but one inference. Bruce Goertz was hired as an independent carrier salesman by his friend Russell Westbrook, who was himself an independent contractor. Appellee had no input into the decision to hire Goertz and had no knowledge of his employment. Goertz had no direct contract with appellee in his business operations. While appellee established certain policies and standards to which all distributors and carriers were to adhere, such policies and standards do not rise to that level of supervision, dominion, and control over Goertz's day to day activities as to make him appellee's servant.

AFFIRMED.

ROMANG, P. J., and BOX, J., concur.

[969 S.W.2d 946] Ruth G. Malinas, George F. Evans, Jr., San Antonio, for Petitioner.

Oliver S. Heard, Jr., Luis R. Vera, Jr., Clifton F. Douglass, III, Karl E. Hays, San Antonio, for Respondent.

PHILLIPS, Chief Justice, delivered the opinion of the Court.

In this case, we decide whether the plaintiff raised a genuine issue of material fact that defendant Hospital was vicariously liable under the theory of ostensible agency for an emergency room physician's negligence. We granted Baptist Memorial Hospital System's application for writ of error to resolve a conflict in the holdings of our courts of appeals regarding the elements required to establish liability against a hospital for the acts of an independent contractor emergency room physician. We hold that the plaintiff has not met her burden to raise a fact issue on each element of this theory. Accordingly, we reverse the judgment of the court of appeals, 940 S.W.2d 128, and render judgment that the plaintiff take nothing.

I

On March 23, 1990, Rhea Sampson was bitten on the arm by an unidentified creature that was later identified as a brown recluse spider. By that evening, her arm was swollen and painful, and a friend took her to the Southeast Baptist Hospital emergency room. Dr. Susan Howle, an emergency room physician, examined Sampson, diagnosed an allergic reaction, administered Benadryl and a shot of painkiller, prescribed medication for pain and swelling, and sent her home. Her condition grew worse, and she returned to the Hospital's emergency room by ambulance a little over a day later. This time Dr. Mark Zakula, another emergency room physician, treated her. He administered additional pain medication and released her with instructions to continue the treatment Dr. Howle prescribed. About fourteen hours later, with her condition rapidly deteriorating, Sampson went to another hospital and was admitted to the intensive care ward in septic shock. There, her bite was diagnosed as that of a brown recluse spider, and the proper treatment was administered to save her life. Sampson allegedly continues to have recurrent pain and sensitivity where she was [969 S.W.2d 947] bitten, respiratory difficulties, and extensive scarring.

Sampson sued Drs. Howle and Zakula for medical malpractice. She also sued Baptist Memorial Hospital System ("BMHS"), of which Southeast Baptist Hospital is a member, for negligence in failing to properly diagnose and treat her, failing to properly instruct medical personnel in the diagnosis and treatment of brown recluse spider bites, failing to maintain policies regarding review of diagnoses, and in credentialing Dr. Zakula. Sampson also alleged that the Hospital was vicariously liable for Dr. Zakula's alleged negligence under an ostensible agency theory. Sampson nonsuited Dr. Howle early in the discovery process. The trial court granted BMHS summary judgment on Sampson's claims of vicarious liability and negligent treatment. The trial court severed those claims from her negligent credentialing claim against BMHS and her malpractice claim against Dr. Zakula. ^[1] Sampson appealed only on the vicarious liability theory.

Both parties agree that BMHS established as a matter of law that Dr. Zakula was not its agent or employee. Thus the burden shifted to Sampson to raise a fact issue on each element of her ostensible agency theory, which Texas courts have held to be in the nature of an affirmative defense. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Smith v. Baptist Mem'l Hosp. Sys., 720 S.W.2d 618, 622 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.), disapproved on other grounds by St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 509 n. 1 (Tex.1997). Sampson contended that she raised a material fact issue on whether Dr. Zakula was BMHS's ostensible agent. The court of appeals, with one justice dissenting, agreed and reversed the summary judgment. 940 S.W.2d 128. In our review, we must first determine the proper elements of ostensible agency, then decide whether Sampson raised a genuine issue of material fact on each of these elements.

II

Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong. See DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.1995); RESTATEMENT (SECOND) OF AGENCY § 219 (1958). The most frequently proffered justification for imposing such liability is that the principal or employer has the right to control the means and methods of the agent or employee's work. See Newspapers, Inc. v. Love, 380 S.W.2d 582, 585-86 (Tex.1964); RESTATEMENT (SECOND) OF AGENCY § 220, cmt. d. Because an independent contractor has sole control over the means and methods of the work to be accomplished, however, the individual or entity that hires the independent contractor is generally not vicariously liable for the tort or negligence of that person. See Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex.1990); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). Nevertheless, an individual or entity may act in a manner that makes it liable for the conduct of one who is not its agent at all or who, although an agent, has acted outside the scope of his or her authority. Liability may be imposed in this manner under the doctrine of ostensible agency in circumstances when the principal's conduct should equitably prevent it from denying the existence of an agency. ^[2] [969 S.W.2d 948] See, e.g., Marble Falls Hous. Auth. v. McKinley, 474 S.W.2d 292, 294 (Tex.Civ.App.--Austin 1971, writ ref'd n.r.e.). Ostensible agency in Texas is based on the notion of estoppel, that is, a representation by the principal causing justifiable reliance and resulting harm. See Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex.1984); RESTATEMENT (SECOND) OF AGENCY § 267; KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 105, at 733-34 (5 th ed.1984).

Texas courts have applied these basic agency concepts to many kinds of principals, including hospitals. See Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 585 (Tex.1977) (explaining that "[h]ospitals are subject to the principles of agency law which apply to others"). A hospital is ordinarily not liable for the negligence of a physician who is an independent contractor. See, e.g., Berel v. HCA Health Servs., 881 S.W.2d 21, 23 (Tex.App.--Houston [1 st Dist.] 1994, writ denied); Jeffcoat v. Phillips, 534 S.W.2d 168, 172 (Tex.Civ.App.--Houston [14 th Dist.] 1976, writ ref'd n.r.e.). On the other hand, a hospital may be vicariously liable for the medical malpractice of independent contractor physicians when plaintiffs can establish the elements of ostensible agency. See, e.g., Lopez v. Central Plains Reg'l Hosp., 859 S.W.2d 600, 605 (Tex.App.--Amarillo 1993, no writ), disapproved on other grounds by Agbor, 952 S.W.2d at 509 n. 1; Nicholson v. Mem'l Hosp. Sys., 722 S.W.2d 746, 750 (Tex.App.--Houston [14 th Dist.] 1986, writ ref'd n.r.e.).

III

In this case, the court of appeals held that two distinct theories of vicarious liability with different elements are available in Texas to impose liability on a hospital for emergency room physician negligence: agency by estoppel (referred to in this opinion as ostensible agency), based on the Restatement (Second) of Agency section 267, and apparent agency, based on the Restatement (Second) of Torts section 429. See 940 S.W.2d at 131. Under section 267, the party asserting ostensible agency must demonstrate that (1) the principal, by its conduct, (2) caused him or her to reasonably believe that the putative agent was an employee or agent of the principal, and (3) that he or she justifiably relied on the appearance of agency. RESTATEMENT (SECOND) OF AGENCY § 267 (1958). Although neither party mentioned section 429 in the trial court or in their briefs to the court of appeals, the court of appeals then proceeded to adopt section 429 and hold that under that section, plaintiff had only to raise a fact issue on two elements: (1) the patient looked to the hospital, rather than the individual physician, for treatment; and (2) the hospital held out the physician as its employee. See 940 S.W.2d at 132. Holding that the plaintiff had established a genuine issue of material fact on each element of this latter affirmative defense, the court reversed and remanded to the trial court for trial on the merits. The court of appeals further suggested that a hospital could do nothing to avoid holding out a physician in its emergency room as its employee because notification to prospective patients in any form would be ineffectual:

[W]e take an additional step in our analysis to consider whether notice provided in consent forms and posted in emergency rooms can ever be sufficient to negate a hospital's "holding out"....

....

... Because we do not believe hospitals should be allowed to avoid such responsibility, we encourage the full leap--imposing a nondelegable duty on hospitals for the negligence of emergency room physicians.

940 S.W.2d at 135-136. Thus, the court of appeals would create a nondelegable duty on [969 S.W.2d 949] a hospital solely because it opens its doors for business.

We first reject the court of appeals' conclusion that there are two methods, one "more difficult to prove" than the other, to establish the liability of a hospital for the malpractice of an emergency room physician. 940 S.W.2d at 132. Our courts have uniformly required proof of all three elements of section 267 to invoke the fiction that one should be responsible for the acts of another who is not in fact an agent acting within his or her scope of authority. As we have explained:

Apparent authority in Texas is based on estoppel. It may arise either from a principal knowingly permitting an agent to hold herself out as having authority or by a principal's actions which lack such ordinary care as to clothe an agent with the indicia of authority, thus leading a reasonably prudent person to believe that the agent has the authority she purports to exercise....

A prerequisite to a proper finding of apparent authority is evidence of conduct by the principal relied upon by the party asserting the estoppel defense which would lead a reasonably prudent person to believe an agent had authority to so act.

Ames v. Great S. Bank, 672 S.W.2d at 450; see also, e.g., Douglass v. Panama, Inc., 504 S.W.2d 776, 778-79 (Tex.1974); Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, 427 (1953). Thus, to establish a hospital's liability for an independent contractor's medical malpractice based on ostensible agency, a plaintiff must show that (1) he or she had a reasonable belief that the physician was the agent or employee of the hospital, (2) such belief was generated by the hospital affirmatively holding out the physician as its agent or employee or knowingly permitting the physician to hold herself out as the hospital's agent or employee, and (3) he or she justifiably relied on the representation of authority. See, e.g., Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 820 (Tex.App.--Amarillo 1995, writ denied); Lopez, 859 S.W.2d at 605; Nicholson, 722 S.W.2d at 750. While a few courts of appeals have referred to section 429, it has never before been adopted in this state by any appellate court. See Smith, 822 S.W.2d at 72-73 (mentioning Restatement (Second) of Torts section 429 as additional support, but recognizing that the applicable rule is provided by Restatement (Second) of Agency section 267); Byrd v. Skyline Equip. Co., 792 S.W.2d 195, 197 (Tex.App.--Austin 1990), writ denied per curiam, 808 S.W.2d 463 (Tex.1991) (citing section 429 as an additional reason summary judgment in the case was improper); Brownsville Med. Ctr. v. Gracia, 704 S.W.2d 68, 74 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.) (after stating that section 267 provides the applicable rule, mentions section 429 as additional authority). To the extent that the Restatement (Second) of Torts section 429 proposes a conflicting standard for establishing liability, we expressly decline to adopt it in Texas.

Next, we reject the suggestion of the court of appeals quoted above that we disregard the traditional rules and take "the full leap" of imposing a nondelegable duty on Texas hospitals for the malpractice of emergency room physicians. 940 S.W.2d at 136. Imposing such a duty is not necessary to safeguard patients in hospital emergency rooms. A patient injured by a physician's malpractice is not without a remedy. The injured patient ordinarily has a cause of action against the negligent physician, and may retain a direct cause of action against the hospital if the hospital was negligent in the performance of a duty owed directly to the patient. See, e.g., Diaz v. Westphal, 941 S.W.2d 96, 98 (Tex.1997); Medical & Surgical Mem'l Hosp. v. Cauthorn, 229 S.W.2d 932, 934 (Tex.Civ.App.--El Paso 1949, writ ref'd n.r.e.).

IV

We now examine the record below in light of the appropriate standard. The Hospital may be held liable for the negligence of Dr. Zakula if Sampson can demonstrate that (1) she held a reasonable belief that Dr. Zakula was an employee or agent of the Hospital, (2) her belief was generated by some conduct on the part of the Hospital, and (3) she justifiably relied on the appearance that Dr. Zakula was an agent or employee [969 S.W.2d 950] of the Hospital. See, e.g., Drennan, 905 S.W.2d at 820.

As summary judgment evidence, BMHS offered the affidavit of Dr. Potyka, an emergency room physician, which established that the emergency room doctors are not the actual agents, servants, or employees of the Hospital, and are not subject to the supervision, management, direction, or control of the Hospital when treating patients. Dr. Potyka further stated that when Dr. Zakula treated Sampson, signs were posted in the emergency room notifying patients that the emergency room physicians were independent contractors. Dr. Potyka's affidavit also established that the Hospital did not collect any fees for emergency room physician services and that the physicians billed the patients directly. BMHS presented copies of signed consent forms as additional summary judgment evidence. During both of Sampson's visits to the Hospital emergency room, before being examined or treated, Sampson signed a "Consent for Diagnosis, Treatment and Hospital Care" form explaining that all physicians at the Hospital are independent contractors who exercise their own professional judgment without control by the Hospital. The consent forms read in part:

I acknowledge and agree that ..., Southeast Baptist Hospital, ... and any Hospital operated as a part of Baptist Memorial Hospital System, is not responsible for the judgment or conduct of any physician who treats or provides a professional service to me, but rather each physician is an independent contractor who is self-employed and is not the agent, servant or employee of the hospital.

To establish her claim of ostensible agency, Sampson offered her own affidavits. In her original affidavit, she stated that although the Hospital directed her to sign several pieces of paper before she was examined, she did not read them and no one explained their contents to her. Her supplemental affidavit stated that she did not recall signing the documents and that she did not, at any time during her visit to the emergency room, see any signs stating that the doctors who work in the emergency room are not employees of the Hospital. Both affidavits state that she did not choose which doctor would treat her and that, at all times, she believed that a physician employed by the hospital was treating her. Based on this record we must determine if Sampson produced sufficient summary judgment evidence to raise a genuine issue of material fact on each element of ostensible agency, thereby defeating BMHS's summary judgment motion.

Even if Sampson's belief that Dr. Zakula was a hospital employee were reasonable, that belief, as we have seen, must be based on or generated by some conduct on the part of the Hospital. "No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts." Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952). The summary judgment proof establishes that the Hospital took no affirmative act to make actual or prospective patients think the emergency room physicians were its agents or employees, and did not fail to take reasonable efforts to disabuse them of such a notion. As a matter of law, on this record, no conduct by the Hospital would lead a reasonable patient to believe that the treating emergency room physicians were hospital employees.

Sampson has failed to raise a fact issue on at least one essential element of her claim. Accordingly, we reverse the judgment of the court of appeals and render judgment that Sampson take nothing.

[1] Sampson subsequently nonsuited her negligent credentialing claim against BMHS.

[2] Many courts use the terms ostensible agency, apparent agency, apparent authority, and agency by estoppel interchangeably. As a practical matter, there is no distinction among them. See, e.g., Birmingham-Jefferson County Transit Auth. v. Arvan, 669 So.2d 825, 830-31 (Ala.1995), (Cook, J., dissenting from overruling of application for rehearing); State of Fla. Dep't of Transp. v. Heckman, 644 So.2d 527, 529 (Fla.Dist.Ct.App.1994); Kissun v. Humana, Inc., 267 Ga. 419, 479 S.E.2d 751, 752 (1997); O'Banner v. McDonald's Corp., 173 Ill.2d 208, 218 Ill.Dec. 910, 670 N.E.2d 632, 634 (1996); Deal v. North Carolina State Univ., 114 N.C.App. 643, 442 S.E.2d 360, 362 (1994); Hill v. St. Claire's Hosp., 67 N.Y.2d 72, 499 N.Y.S.2d 904, 490 N.E.2d 823, 827 (1986); Evans v. Ohio State Univ., 112 Ohio App.3d 724, 680 N.E.2d 161, 174 (Ohio Ct.App.1996); Luddington v. Bodenvest Ltd., 855 P.2d 204, 209 (Utah 1993); Hamilton v. Natrona County Educ. Ass'n, 901 P.2d 381, 386 (Wyo.1995). But see Guillot v. Blue Cross of La., 690 So.2d 91, 99 (La.Ct.App.1997) (Saunders, J., concurring and dissenting) (stating apparent authority is based on contract law, whereas agency by estoppel is grounded in tort principles); Houghland v. Grant, 119 N.M. 422, 891 P.2d 563, 568 (1995)(recognizing that although ostensible agency and agency by estoppel are based on slightly different rationales, the theories have been used interchangeably). See also McWilliams & Russell, Hospital Liability for Torts of Independent Contractor Physicians, 47 S.C. L. REV. 431, 445-452 (1996). Regardless of the term used, the purpose of the doctrine is to prevent injustice and protect those who have been misled. See Roberts v. Haltom City, 543 S.W.2d 75, 80 (Tex.1976).

[410] Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

Morton B. DeBroff, with him David R. Gold, for appellant.

Carl E. Fisher, with him Robinson, Fisher & Long, for appellee.

OPINION BY MR. JUSTICE EAGEN, October 9, 1970:

Two automobiles collided in Westmoreland County. One of the vehicles, owned by Julia Smalich, was operated by Felix Rush Westfall. Julia Smalich and her minor son, Michael, were passengers in this automobile at the time. The other vehicle involved was operated by Stephanna Louise Blank. Julia Smalich suffered injuries in the collision which caused her death. Michael Smalich was injured, but recovered.

This action in trespass was later instituted, naming both Westfall and Blank as defendants. The estate of Julia Smalich sought damages in both a wrongful death action and a survival action. Marco Smalich, the guardian of the minor, claimed damages for the minor's [411] injuries on behalf of the minor and on his own behalf as guardian.

At trial, the jury returned a verdict in favor of all plaintiffs and against both defendants. Damages were awarded in the wrongful death action in the sum of $1025; in the survival action in the sum of $2000; in the guardian's action in the sum of $166.50; and in the minor's action in the sum of $20,000. Post-trial motions were timely filed by defendant Blank, seeking judgment notwithstanding the verdict in the actions on behalf of the Smalich Estate and a new trial in the actions on behalf of the minor and the guardian. Both motions were granted by the court en banc below. The plaintiffs appealed.

The Minor's Action

In this instance, the court below awarded a new trial because it concluded that the verdict was against the weight of the evidence, and was also excessive. We have said many times that the grant of a new trial lies within the inherent power of the trial court, and on appeal we will not interfere with the exercise thereof, unless there has been a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial: Kralik v. Cromwell, 435 Pa. 613, 258 A. 2d 654 (1969); Getz v. Balliet, 431 Pa. 441, 246 A. 2d 108 (1968); Guzman v. Bloom, 413 Pa. 576, 198 A. 2d 499 (1964). An examination of the record fails to persuade us that the court abused its discretion in awarding a new trial in the actions involving the minor's injuries, and we will, therefore, affirm its order in this respect.

Actions on Behalf of the Estate

The trial jury found that Westfall's negligent operation of the Smalich automobile was a proximate [412] cause of the collision. That the trial record amply supports this finding is not and cannot be questioned. After trial, the court en banc ruled that, under the facts, the contributory negligence of Westfall must be imputed to the owner of the automobile as a matter of law, and this precluded recovery by the Smalich Estate against defendant Blank. This conclusion of the court below was based on our ruling in Beam v. Pittsburgh Railways Co., 366 Pa. 360, 77 A. 2d 634 (1951), and admittedly was clearly dictated by that decision.

In Beam we held that where the owner of an automobile is present while it is being negligently operated by another, there is a presumption that the owner of the vehicle has the power to control it, and, in the absence of evidence to the contrary, a relationship of principal and agent or master and servant exists between the owner and driver, because of which the driver's contributory negligence is imputed to the owner, barring the owner from recovering for injuries caused by the negligence of a third person. In considering the instant case, we have re-examined Beam and conclude that, as to the portion of the holding above set forth, it should be overruled and no longer be recognized as the law of this Commonwealth.

First, a plaintiff ought not to be barred from recovery against a negligent defendant by the contributory negligence of a third person unless the relationship between the plaintiff and the third person is such that the plaintiff would be vicariously liable as a defendant for the negligent acts of the third person: Prosser, The Law of Torts § 73 (3d ed. 1964). See also, Restatement (Second), Torts §§ 485, 486 and 491 (1965). Placed in the context of this case, a driver's negligence will not be imputed to a passenger, unless the relationship between them is such that the passenger would be vicariously liable as a defendant for the [413] driver's negligent acts: See Beam v. Pittsburgh Railways Co., supra. The relationship between the passenger and the driver is therefore a very critical one, worthy of careful analysis and consideration.

At least three relationships could exist between an owner-passenger and a driver of an automobile: (1) bailor-bailee; (2) principal-agent; and (3) master-servant.

A bailment is a delivery of personalty for the accomplishment of some purpose upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, otherwise dealt with according to his directions or kept until he reclaims it: Wright v. Sterling Land Co., 157 Pa. Superior Ct. 625, 43 A. 2d 614 (1945). As a general rule, a bailor is not liable for the negligence of the bailee in the operation of a bailed chattel: Brower v. Employers' Liability Assurance Co., Ltd., 318 Pa. 440, 177 A. 826 (1935); McColligan v. Penna. R.R. Co., 214 Pa. 229, 63 A. 792 (1906); Hajduk v. Fague, 200 Pa. Superior Ct. 55, 186 A. 2d 869 (1962). Therefore in an action in trespass by a bailor to recover for damage to the thing bailed, caused by the negligent act of a third party, the contributory negligence of the bailee is no defense, unless the bailee was at the time acting as the bailor's servant: Commercial Banking Corp. v. P.T.C., 162 Pa. Superior Ct. 158, 56 A. 2d 344 (1948); Restatement (Second), Torts § 486 (1965); Prosser, The Law of Torts § 73 (3d ed. 1964). And the fact that a bailor shares the use of the thing bailed (here, rides as a passenger in the automobile) with his bailee does not necessarily cause a termination of the bailment and create a new relationship: Rodgers v. Saxton, 305 Pa. 479, 158 A. 166, 80 A.L.R. 280 (1931).

Agency is the relationship which results from (1) the manifestation of consent of one person to another [414] that (2) the other shall act on his behalf and subject to his control, and (3) consent by the other so to act: Chalupiak v. Stahlman, 368 Pa. 83, 81 A. 2d 577 (1951); Restatement (Second), Agency § 1 (1) (1958). Such agency results only if there is an agreement for the creation of a fiduciary relationship with control by the beneficiary: Rosenberg v. Cohen, 370 Pa. 507, 88 A. 2d 707 (1952); Restatement (Second), Agency § 1, comments a and b (1958). "The right of control by the principal may be exercised by prescribing what the agent shall or shall not do before the agent acts, or at the time when he acts, or at both times . . . . Further, the principal has power to revoke the agent's authority, although this would constitute a breach of his contract with him . . . . The control of the principal does not, however, include control at every moment; its exercise may be very attenuated and, as where the principal is physically absent, may be ineffective:" Restatement (Second), Agency § 14, comment a. Since an agent who is not a servant is not subject to any right of control by his principal over the details of his physical conduct, the responsibility rests upon the agent alone, and the principal is not liable, for harm caused by his unauthorized negligent physical conduct: Commonwealth v. Minds Coal Mining Corp., 360 Pa. 7, 60 A. 2d 14 (1948); Restatement (Second), Agency § 250 (1958). Thus it has long been said to be the general rule that there is no vicarious liability upon the principal in such case: Prosser, The Law of Torts § 70 (3d ed. 1964).

"A master is a species of principal, and a servant is a species of agent:" Restatement (Second), Agency § 2, comment a. "A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. A servant [415] is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master:" Restatement (Second), Agency § 2 (1) and (2) (Emphasis added.) Thus a master not only controls the results of the work but also may direct the manner in which such work shall be done, and a servant, in rendering the agreed services, remains entirely under the control and direction of the master: Joseph v. United Workers Assn., 343 Pa. 636, 23 A. 2d 470 (1942); McColligan v. Penna. R.R. Co., supra. "Those rendering service but retaining control over the manner of doing it are not servants. They may be agents, agreeing only to use care and skill to accomplish a result and subject to the fiduciary duties of loyalty and obedience to the wishes of the principal. . .:" Commonwealth v. Minds Coal Mining Corp., supra, at 17. Because a master has the right to exercise control over the physical activities of the servant within the time of service, he is vicariously liable for the servant's negligent acts committed within the scope of his employment: Restatement (Second), Agency § 219 (1958); Prosser, The Law of Torts § 69 (3d ed. 1964). Therefore, the master is likewise barred from recovery against a negligent defendant by the contributory negligence of his servant acting within the scope of his employment: Restatement (Second), Torts § 486 (1965); Prosser, The Law of Torts § 73 (3d ed. 1964). Beam, supra, correctly so stated this law applicable to a master.

In essence, we now recognize that, contrary to what we have said in many prior automobile accident cases,^[1] [416] only one of the three relationships discussed above, that of master-servant, gives rise to vicarious liability for negligence.^[2] Perhaps many of the harsh results sometimes associated with the imputation of contributory negligence can be attributed to our mistaken assumption that a principal is vicariously liable for the negligent acts of his agent. We therefore now state unequivocally that only a master-servant relationship or a finding of a joint enterprise^[3] will justify an imputation of contributory negligence.

We have serious doubt that, in the ordinary situation, the mutual understanding of the owner-passenger and the driver is that the owner-passenger reserves a right to control over the physical details of driving or that the driver consents to submit himself to the control of a "back-seat driver." It seems more reasonable that the mutual understanding is that the driver will use care and skill to accomplish a result, retaining control over the manner of operation yet subject to the duty of obedience to the wishes of the owner-passenger as to such things as destination. Such would only constitute an agency relationship and not one of master-servant, although there are undoubtedly situations where the understanding might well be such as to constitute [417] a master-servant relationship.^[4] All that we now hold is that the character of the relationship created by the parties must be determined from their express agreement or from the circumstances, which may be disclosed at trial. "The mere presence of the owner in an automobile while it is being driven in a negligent manner by another does not necessarily make him liable for an injury caused thereby, or impute to him the driver's negligence:"^[5] Beam v. Pittsburgh Railways Co., supra, at 370. Nor will it any longer create a presumption of a master-servant relationship.

We do not mean, however, that the presence of the owner is entirely irrelevant, or that there is no legal significance that an owner present in his car has the power to control it.^[6] These are relevant in determining whether the owner-passenger has been actually negligent himself^[7] in failing to control the conduct of the driver. See Restatement of Torts, § 495. Any passenger is required to exercise reasonable care for his own safety, and will be barred from recovery if he unreasonably [418] fails to warn the driver of a danger which he discovers or to make use of an ability to control the negligence which he may possess: Landy v. Rosenstein, 325 Pa. 209, 188 A. 855 (1937); Highton v. Penna. Railroad Co., 132 Pa. Superior Ct. 559, 1 A. 2d 568 (1938); Restatement (Second), Torts § 495 (1965). "Any circumstance which gives the plaintiff reason to believe that his advice, directions, or warnings would be heeded is important in determining whether he is barred from recovery by his failure to attempt to give them.. . . The fact that the plaintiff owns the vehicle or the chattel which to his knowledge is being carelessly used, is . . . of importance, since one who is driving another's vehicle or using his chattel is more likely to pay attention to the owner's directions than he would be to the directions of a guest in his own car:" Restatement (Second), Torts § 495, comment e (1965). This differs from imputed contributory negligence, where due to the relationship between the passenger and driver, the negligence of the driver is in all cases imputed to the passenger. Under this rule, "in order to bar the plaintiff from recovery . . ., it is necessary that the plaintiff know or should know that it is essential for his safety to control the conduct of the third person:" Restatement (Second), Torts § 495, comment d (1965).

We repeat, the precise nature of the relationship between the owner-passenger and the driver, under the evidence, presents a question of fact which it is the exclusive function of the jury to determine, except where the facts are not in dispute and the evidence is direct and certain, presenting no question of credibility and leaving no sufficient ground for inconsistent inferences of fact: Joseph v. United Workers Assn., supra. In this case, the lower court charged the jury on the issue of imputed contributory negligence in accordance [419] with our decision in Beam, supra, and, in so doing, granted the following specific requests for charge of the plaintiffs: "No. 6: The mere presence of a car owner in that automobile while it is being driven by another, does not necessarily mean that the operation of the car is within the control of the owner. No. 7: If you find that the decedent, Julia Smalich, relinquished her right to control her automobile, either expressly or impliedly, by words, actions or conduct, and at the time of the accident had transferred that right to control the car to the defendant Westfall, then you should find that any conduct by defendant Westfall cannot affect or bar the right of the decedent's personal representative to recover in this case." The jury rendered a verdict for the plaintiffs against defendant Blank, and, therefore, must have determined that Julia Smalich had relinquished her right to control her automobile to defendant Westfall. On the facts, such a conclusion is justified under the law as we have now stated it. Judgments n.o.v. should not, therefore, have been entered in favor of defendant Blank and against the Smalich Estate. These judgments are vacated, and the record remanded with directions to enter judgments in favor of the Smalich Estate and against defendant Blank in accordance with the jury's verdict.^[8]

The order of the court below awarding a new trial in the actions involving the minor is affirmed. Judgments n.o.v. in the actions on behalf of the Smalich Estate are vacated and the record remanded with directions.

Mr. Chief Justice BELL concurs in the result.

[420] CONCURRING OPINION BY MR. JUSTICE ROBERTS:

I am pleased that the Court today partially repudiates the imputed contributory negligence doctrine. I am unable to join the majority's opinion, however, because I believe that in adopting a limited "both ways" test, it falls short of accomplishing the degree of reform necessary in this area. I am particularly disturbed that the majority, in continuing to apply the doctrine to the master-servant relationship, places so much weight on the physical control a master has over a servant. I therefore can only concur in the result.

The imputed contributory negligence doctrine has been criticized on two grounds. For one, it is quite obvious that the doctrine is based on the absurd fiction that the owner-passenger has the "right" to control the vehicle.^[1] In the real world, however, a passenger can in no safe way exercise operational control over the vehicle in which he rides, even if he is the owner.^[2] But the imputed contributory negligence doctrine requires the owner-passenger not only to constantly advise the driver, but also to seize the wheel if need be. For if [421] he does not actively seek to pull his negligent driver out of trouble, he will have to shoulder any losses he may suffer in an accident. Of course if he does interfere, he is likely to be found actively negligent.^[3] One wonders what the owner should do if he is riding in the back seat;^[4] perhaps he should just go to sleep.^[5]

A second weakness in the doctrine of imputed contributory negligence arises from the fact that courts have often failed to discern the difference between using the fiction of control to impute negligence when the owner-passenger is the defendant, and using it to impute contributory negligence when the owner-passenger is the plaintiff. The assumption has been that if the driver's negligence is imputed, it is only logical to likewise impute his contributory negligence. But there is no justification for imputing contributory negligence, other than "the strong psychological appeal of all rules cast in the form of balanced and logical symmetry."^[6] Unfortunately, the empty formalism of this approach, an example of what Harper and James have termed the "both-ways test,"^[7] even became imbedded in the first [422] Restatement of Torts § 485: "[A] plaintiff is barred from recovery by the negligent act or omission of a third person if, but only if, the relation between them is such that the plaintiff would be liable as a defendant for harm caused to others by such negligent conduct of a third person."

Courts and commentators have been quick to see these two errors in the doctrine. The fiction was criticized even when applied to a horse-drawn carriage, see Hoag v. New York C. & H.R.R. Co., 111 N.Y. 199, 203, 18 N.E. 648, 649 (1888), and the criticism mounted when the fiction was applied to automobiles: "Any attempted exercise of the right of control by wresting the wheel from the driver would be foolhardy. Equally menacing to the driver's efficient operation of the machine are raucous reproaches, strident denunciations, or even persistent unctuous admonitions from the back seat." Sherman v. Korff, 353 Mich. 387, 395, 91 N.W. 2d 485, 487 (1958). For similar statements, see, e.g., Painter v. Lingon, 193 Va. 840, 848, 71 S.E. 2d 355, 360 (1952); Jenks v. Veeder Contracting Co., 177 Misc. 240, 243, 30 N.Y.S. 2d 278, 281 (1941), aff'd, 264 App. Div. 979, 37 N.Y.S. 2d 230 (1942), appeal dismissed, 289 N.Y. 787, 46 N.E. 2d 848 (1943); cf. Southern Pacific Co. v. Wright, 248 F. 261, 264 (9th Cir. 1918).

Similarly, the "both-ways test" has been strongly criticized. In 1932 it was written that "[c]ourts seem unaware that the policies involved in granting or denying the defensive plea may be different from those controlling the responsibility in damages of a master for the conduct of his servant, and that the latter are probably concerned simply with providing a financially responsible defendant." Gregory, Vicarious Responsibility and Contributory Negligence, 41 Yale L.J. 831, 833 (1932). In Johnson v. Los Angeles-Seattle Motor Express, [423] Inc., 222 Ore. 377, 387, 352 P. 2d 1091, 1095 (1960), the Supreme Court of Oregon rejected the doctrine stating: "The practical necessity for imposing liability on an owner in the cases which do justify the doctrine of imputed liability is not present in the situation where the owner is an injured passenger in his own car. The two-way test of the Restatement does not commend itself as either useful or necessary. Its only virtue, as pointed out in Harper and James, supra, is that it is logical and symmetrical. Important legal rights ought to have better footing than mere architectural symmetry."

It should be noted that the majority does not adopt the old "both ways" test but rather the view of the revised Restatement of Torts, for while § 485 partially abolishes the imputed negligence doctrine, that doctrine is retained in the areas of master-servant relations and joint enterprise. See §§ 486, 491 Restatement of Torts (Second). However, I submit that the criticisms I have noted above concerning the imputed contributory negligence doctrine apply with equal force to the two exceptions carved out by the second Restatement.

In these days of congested travel on high speed highways, the dangers of requiring that someone wrest control of a vehicle from the driver if the latter is negligent certainly are present whether the driver is the bailee, agent or servant of the passenger. The Supreme Court of Minnesota re-examined the whole problem of imputed contributory negligence recently in a well-reasoned opinion that deserves close study. See Weber v. Stokely-Van Camp, Inc., 274 Minn. 482, 144 N.W. 2d 540 (1966). There the court repudiated the application of the doctrine to the master-servant relation in automobile negligence cases, stressing the absurdity of the control argument, and the absence of need for a [424] solvent defendant, unlike vicarious liability cases where the master properly is held accountable for the negligence of his servant.

I look forward to the day when this Court completes its reform in this area.

[1] E.g., Beam v. Pittsburgh Railways Co., supra; Mazur v. Klewans, 365 Pa. 76, 73 A. 2d 397 (1950); Von Cannon v. P.T.C., 148 Pa. Superior Ct. 330, 25 A. 2d 584 (1942); and Spegele v. Blumfield, 120 Pa. Superior Ct. 231, 182 A. 149 (1935).

[2] The necessity of a master-servant relationship seems to have been recognized in the older cases. See, e.g., Lassock v. Bileski, 94 Pa. Superior Ct. 299 (1928); McMahen v. White, 30 Pa. Superior Ct. 169 (1906); and Connor v. Penna. Railroad Co., 24 Pa. Superior Ct. 241 (1904).

[3] While the existence or absence of a joint enterprise was not raised here or in the court below, we have considered the record with this question in mind. If the proof established such a relationship existed, this would preclude recovery by the Smalich Estate, and if the lower court reached the right result albeit for the wrong reason, its decision would be affirmed. Taylor v. Churchill V. Country Club, 425 Pa. 266, 228 A. 2d 768 (1967). However, we are satisfied that the evidence did not establish a joint enterprise. See Restatement (Second), Torts § 491 (1965).

[4] For example, if the driver were inexperienced or learning, a prospective purchaser or driving under actual directions.

[5] Analogous hereto are Restatement (Second), Torts § 487 (husband and wife), § 488 (parent and child), § 489 (bailee) and § 490 (passenger or guest in a vehicle).

[6] See Beam v. Pittsburgh Railways Co., supra; Mazur v. Klewans, supra headnotes 3 and 6; Von Cannon v. P.T.C., supra headnote 8; and Spegele v. Blumfield, supra headnote 1.

[7] The statement seems to have actually been intended to apply to this situation. It first appeared in Bell v. Jacobs, 261 Pa. 204, 208, 104 A. 587 (1918) in this context: "It was defendant's car and he acquiesced in what Fink, who was acting for him, did, and cannot be excused because he was not personally at the wheel. A man out riding in his car is not relieved from responsibility for its management because, with his permission, another is acting as driver; and this is especially so where the owner tacitly assents to the manner in which the car is driven. There is a presumption, not here rebutted, that an owner present in his car has power to control it."

[8] Since the jury rendered a verdict against defendant Blank when the charge was more favorable to her than a charge in accordance with our present opinion would be, defendant Blank has not been harmed hereby.

__________

[1] The doctrine of imputed contributory negligence, in the setting involved in this case, has its roots in the 1849 English case of Thorogood v. Bryan, 8 C.B. 115, 137 Eng. Rep. 452. Thorogood was a suit by a passenger of a public omnibus against the owner of another omnibus. The passenger was denied recovery because the driver of her omnibus, as well as the other driver, was negligent. The theory was that the passenger had a measure of control over the driver; he had "employed" the driver and "[i]f he is dissatisfied with the mode of conveyance, he is not obliged to avail himself of it." Id. at 132. As Dean Prosser has written, this was a "nonsensical fiction," which was later abandoned in England and by those states which had followed it in America. See Prosser, Handbook of the Law of Torts 502 (3d ed. 1964) (citing cases).

[2] The owner can, of course, exercise some degree of control when he selects a driver; or, at times, he may be required to give some kind of directional advice, like "slow down." Improper performance of these duties may be active negligence, but that is not involved in this case.

[3] "In the usual case the passenger has no physical ability to control the operation of the car, and no opportunity to interfere with it; and any attempt on his part to do so in fact would be a dangerously distracting piece of back-seat driving which might very well amount to negligence in itself." Prosser, Handbook of the Law of Torts 494 (3d ed. 1964).

[4] Cf. Nutt v. Pennsylvania R.R., 281 Pa. 372, 377, 126 Atl. 803, 805 (1924) ("But an invited guest, and especially one who occupies a rear seat in the car where no opportunity of control exists. . . is not concerned with the operating of the car and cannot be viewed as joining with the driver in its operation . . . .")

[5] Indeed, it has often been held that a driver's contributory negligence cannot be imputed to an owner-passenger who is asleep when the accident occurs. See, e.g., Stafford v. Roadway Transit Co., 165 F. 2d 920 (3d Cir. 1948) (applying Pennsylvania law); Greyhound Lines, Inc. v. Caster, 216 A. 2d 689 (Del. S. Ct. 1966).

[6] 2 Harper & James, The Law of Torts 1273 (1956).

[7] See id. at 1273-77.

[13] Lon J. Dale (argued), Milodragovich, Dale, Steinbrenner & Binney; Missoula, Montana, For Appellants.

L.D. Nybo (argued), Conklin, Nybo, Leveque & Lanning; Great Falls, Montana, Jon P. Stride (argued), Tonkon, Torp, Galen, Marmaduke & Booth; Portland, Oregon, William J. Mattix (argued), Crowley, Haughey, Hanson, Toole & Dietrich; Billings, Montana, For Respondents.

Justice JIM REGNIER delivered the opinion of the Court.

Byron and Camille Oliver (Olivers) brought an action against Stimson Lumber Company (Stimson) and Liberty Northwest Insurance Corporation (Liberty Northwest) for negligent and intentional spoliation of evidence, along with a request to void subrogation rights, in the Fourth Judicial District Court, Missoula County. The parties filed cross-motions for summary judgment and following two separate hearings, the District Court granted summary judgment in favor of the Defendants. We affirm in part, reverse in part, and remand.

We restate the issues raised on appeal as follows:

1. Did the District Court err when it concluded that the exclusive remedy provisions of the Workers' Compensation Act barred the Olivers from bringing a claim for [14] spoliation of evidence against Mr. Oliver's employer?

2. Should Montana adopt the torts of negligent and intentional spoliation of evidence as independent causes of action?

3. Did the District Court err in awarding summary judgment in favor of Liberty Northwest Corporation?

On appeal, the Olivers have not raised the issue of whether Stimson's subrogation rights should be impacted by its conduct and therefore, we will not address the issue in this appeal.

FACTUAL BACKGROUND

Byron Oliver was employed by Champion International Corporation (Champion) at its Bonner mill from 1974 until the time of its sale to Stimson Lumber Company in November 1993. Following the sale by Champion, Byron continued his employment at the Bonner mill as an employee of Stimson.

On May 9, 1994, Byron Oliver suffered a serious injury as the result of an industrial accident arising out of and in the course of his employment with Stimson. As such, Mr. Oliver's injury fell within the parameters of the exclusivity provisions of the Workers' Compensation Act, entitling him to benefits.

The Olivers immediately hired an attorney to represent their interests with regard to the work-related injuries sustained by Byron. Shortly thereafter, the Olivers' counsel began investigating the possibility of a third-party action associated with the piece of equipment involved in Mr. Oliver's injury. As part of the investigation, the Olivers' counsel made a request for an inspection of the equipment involved in the injury. Stimson turned to its workers' compensation insurance carrier, Liberty Northwest, for advice regarding this request. A claims adjuster for Liberty Northwest contacted a local attorney, Larry Jones, who had previously represented Liberty Northwest and its insureds, and advised him of the request for an inspection. The claims adjuster requested Jones to be present at the inspection because Stimson personnel wanted Jones to explain the reason for the involvement of an attorney on behalf of the Olivers given that Mr.Oliver's injury was an accepted liability claim under the Workers' Compensation Act.

An inspection of the equipment took place on May 18, 1994. Counsel for the Olivers, the attorney for Liberty Northwest and Stimson, the claims adjuster from Liberty Northwest, a loss prevention employee from Liberty Northwest, and various Stimson employees were present during the inspection. In addition, nearly everyone who participated in the inspection understood that the purpose of this inspection was so that counsel for the Olivers could decide whether there was any basis for a third-party lawsuit. Photographs and a videotape of the equipment and Mr.Oliver's work area were taken by the Olivers' counsel during this inspection.

After the inspection, on May 20, 1994, counsel for the Olivers wrote a letter to Larry Jones, the attorney for Liberty Northwest and Stimson, requesting information concerning the equipment's components, copies of design drawings, wiring diagrams, a description of the assembly of the equipment and the as-built plans for the equipment. On May 23, 1994, Jones sent a letter to the claims adjuster at Liberty Northwest enclosing the request from counsel for the Olivers. In this letter, Jones directed the claims adjuster to forward the request from the Olivers' counsel to the human resource manager at Stimson's Bonner mill so that they could then discuss how much information Stimson wanted to provide voluntarily. In addition, Jones explained in this letter the nature of the third-party claims counsel for the Olivers was interested in pursuing on behalf of the Olivers.

On May 25, 1994, Jones responded to the request by the Olivers' counsel by stating that he had forwarded it to the claims adjuster for transmittal to Stimson personnel for review. In the meantime, counsel for the Olivers sent a letter to Jones on May 24, 1994, asking for a commitment from Stimson that the equipment involved in the injury remain intact to allow an expert to examine it. Counsel for the Olivers also reiterated [15] their request for a copy of the as-built plans for the equipment.

On June 13, 1994, Jones forwarded the May 24, 1994, letter from the Olivers' counsel to the claims adjuster at Liberty Northwest, recommending that the claims adjuster handle this request directly by talking with the human resource manager at Stimson's Bonner mill. On that same date, Jones sent a letter to the Olivers' counsel advising that he had sent the May 24, 1994, letter to Liberty Northwest for transmittal to Stimson for consideration.

On June 22, 1994, the human resource manager for Stimson initiated a conference call involving Jones and the director of human resources at Stimson's corporate office in Portland. During this conference call, the requests contained in the letters from the Olivers' counsel dated May 20 and 24, 1994, were discussed to determine how much information Stimson wanted to supply to the Olivers voluntarily.

On June 24, 1994, Jones responded to the requests for information contained in the May 20 and 24, 1994, letters from the Olivers' counsel. This letter did not specifically address the Olivers' request for preservation of the equipment and its components, contained in the May 24, 1994, letter from the Olivers' counsel. However, this letter stated that Stimson management had decided that it was unable to accommodate their request at this time due to the amount of time Stimson personnel would be required to spend away from their employment duties to provide the information. The Olivers' counsel responded by offering to pick up the information, have it copied and returned to Stimson and to pay for any reasonable employee costs involved. On July 13,1994, Jones forwarded this offer on to Liberty Northwest and Stimson for consideration.

Frustrated by the lack of response from Stimson regarding the information requested, the Olivers' counsel wrote to Jones on October 24, 1994, advising that if the previously requested information was not received within ten days, they would initiate a third-party action against Stimson and proceed to depose Stimson personnel and subpoena production of the requested information. On October 26, 1994, Jones forwarded this letter directly to the human resource manager at Stimson's Bonner mill, requesting that the manager contact him to discuss how to proceed.

On December 8, 1994, counsel for the Olivers filed a petition pursuant to Rule 27, M.R.Civ.P., to obtain prelitigation discovery with respect to the Olivers' potential third-party claims. Upon deposing Stimson personnel in March 1995 pursuant to a court order, counsel for the Olivers learned that the equipment involved in Mr. Oliver's injury had been completely rewired and the programmable logic controller as well as other components had been replaced and discarded over Labor Day weekend in September 1994.

As a result of this discovery, the Olivers filed a complaint against Stimson on July 17, 1996, for intentional and negligent spoliation of evidence and to void any subrogation rights Stimson might have. The Olivers later amended their complaint to include Liberty Northwest as a Defendant. After a period of discovery, the parties moved for summary judgment.

Following two separate hearings on the motions, the District Court entered an opinion and order granting the Defendants' motions for summary judgment on all claims. In its opinion, the District Court determined that the Defendants' conduct, under any interpretation, simply could not support a claim for intentional spoliation of evidence. The court further concluded that it need not reach the question of whether to recognize the tort of negligent spoliation since the Olivers were unable to develop a factual basis to establish any duty on the part of the Defendants to preserve the equipment.

The Olivers appeal from the District Court's decision.

STANDARD OF REVIEW

Our standard of review in appeals from summary judgment rulings is de novo. See Motarie v. Northern Mont. Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156 (citing Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, [16] 785). When we review a district court's grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. See Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

At the outset, it is important to note that this is an appeal from a grant of summary judgment in favor of the Defendants. In a summary judgment proceeding, the evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences will be drawn therefrom in favor of the party opposing summary judgment. See Joyce v. Garnaas, 1999 MT 170, ¶ 8, 295 Mont. 198, ¶ 8, 983 P.2d 369, ¶ 8, 56 St.Rep. 661, ¶ 8. Consequently, we will view the evidence in the light most favorable to the Olivers and all reasonable inferences will be drawn in their favor.

ISSUE 1

Did the District Court err when it concluded that the exclusive remedy provisions of the Workers' Compensation Act barred the Olivers from bringing a claim for spoliation of evidence against Mr. Oliver's employer?

As a threshold matter we shall address the District Court's decision that the Olivers' negligence claims are barred by the exclusivity provisions of the Workers' Compensation Act (Act). The District Court concluded that since the Olivers could not show that any of the Defendants deliberately destroyed evidence to prevent the Olivers from pursuing a third-party claim, the Olivers were barred by the exclusivity provisions of the Act from bringing a negligence action against Mr. Oliver's employer and/or his employer's workers' compensation insurance carrier. Stimson sides with the District Court in its conclusion that the Act bars the Olivers' claim against it. The Olivers assert that a cause of action for spoliation of evidence is an interference with a property interest rather than a personal injury, which falls outside the exclusivity provisions of the Act. We agree with the Olivers.

The applicable provision of the Act provides:

For all employments covered under the Workers' Compensation Act or for which an election has been made for coverage under this chapter, the provisions of this chapter are exclusive ....an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the Workers' Compensation Act or for any claims for contribution or indemnity asserted by a third person from whom damages are sought on account of such injuries or death.

Section 39-71-411, MCA (1993) (emphasis added). We have previously stated the rationale for the adoption of workers' compensation legislation was to "guarantee workers with work-related injuries some form of compensation in exchange for relinquishing any potential tort claims against their employers." Stratemeyer v. Lincoln County (1996), 276 Mont. 67, 74, 915 P.2d 175, 179. This quid pro quo between employers and employees is central to the Act and it is axiomatic that the employee have some possibility of recovery for the compromise to hold. Stratemeyer, 276 Mont. at 75, 915 P.2d at 179.

A compensable injury under the Act is defined as follows:

(1) "Injury" or "injured" means:

(a) internal or external physical harm to the body;

....

(c) death.

(2) An injury is caused by an accident. An accident is:

[17] (a) an unexpected traumatic incident or unusual strain;

(b) identifiable by time and place of occurrence;

(c) identifiable by member or part of the body affected; and

(d) caused by a specific event on a single day or during a single work shift.

Section 39-71-119, MCA (1993). Thus, injuries that trigger an exclusive remedy under the Act are internal or external harm to a worker's body. The loss or impairment of a person's ability to bring an action against a third party for spoliation of evidence is not an injury covered by the Act. Accordingly, we hold that an employee's claim against his employer for spoliation of evidence is not barred by the Act's exclusivity provisions. Therefore, we conclude that the District Court erred when it determined that the Olivers were barred by the exclusivity provisions of the Workers' Compensation Act from bringing a negligence action against Mr. Oliver's employer and/or his employer's workers' compensation insurance carrier.

ISSUE 2

Should Montana adopt the torts of negligent and intentional spoliation of evidence as independent causes of action?

As previously stated, the District Court concluded that it need not reach the question of whether the torts of intentional or negligent spoliation of evidence should be recognized in Montana. The District Court held that the Defendants did not engage in the type of conduct that could give rise to intentional spoliation of evidence. The court further concluded that given the relationship of the parties, there was no duty on the part of the Defendants to preserve the evidence, thus any negligence action would fail under any circumstances.

Nonetheless, the Olivers urge this Court to adopt the torts of negligent and intentional spoliation of evidence. Stimson contends that we need not decide whether to recognize either tort because the Olivers could not prove such a claim. As for Liberty Northwest, it asserts that the Olivers' complaint fails to state a claim against it upon which relief could be granted.

This is a case of first impression in Montana. However, we have previously upheld an award of exemplary damages against an owner of a vehicle who had destroyed critical physical evidence at the scene of an accident. This destruction of evidence resulted in the inability of the officer to conduct visibility and illumination tests as part of his investigation and determination of fault. In that situation, we stated that an identifiable basis for actual damages exists, which arises from the plaintiff's deprivation of the illumination tests. See Lauman v. Lee (1981), 192 Mont.84, 89, 626 P.2d 830, 833.

Relevant evidence is critical to the search for the truth. The intentional or negligent destruction or spoliation of evidence cannot be condoned and threatens the very integrity of our judicial system. There can be no truth, fairness, or justice in a civil action where relevant evidence has been destroyed before trial. Historically, our judicial system has fostered methods and safeguards to insure that relevant evidence is preserved. Ultimately, the responsibility rests with both the trial and appellate courts to insure that the parties to the litigation have a fair opportunity to present their claims or defenses.

Remedies already exist for parties to an action who have suffered a loss as a result of the spoliation of evidence by another party. See Cedars-Sinai Med. Ctr. v. Superior Court (1998), 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511, 517-18; Stefan Rubin, Tort Reform: A Call for Florida to Scale Back its Independent Tort for the Spoliation of Evidence, 51 Fla. L.Rev. 345, 357-59 (1999); Montana Rules of Civil Procedure. We see no reason to recognize a new tort theory to provide relief to litigants when evidence is intentionally or negligently destroyed by a party to the litigation. Trial judges are well equipped under the Montana Rules of Civil Procedure to address the problem as it occurs and deal with it accordingly, even entering default when the circumstances justify such relief.

When evidence is in the possession of a third party, however, the various sanctions [18] available to the trial judge are inapplicable and other considerations arise. For instance, the property in question may be owned by the third party. A property owner normally has the right to control and dispose of his property as he sees fit. The owner of the property may legitimately question what right a plaintiff has to direct control over such property. Yet, the importance of evidence preservation and the critical importance it plays in the civil justice system cannot be ignored.

We are also mindful that some courts that have carefully considered this question have determined that there is no need to recognize the spoliation torts since existing remedies suffice. In the final analysis, however, we have concluded that it is necessary to recognize the tort of spoliation of evidence, which may be negligent or intentional, as an independent cause of action with respect to third parties who destroy evidence. In doing so, we are sensitive to the legitimate interests and rights of third parties who are in the possession of such evidence. Thus, we have attempted to craft a balanced remedy which will serve as a deterrent to any potential spoliator and provide suitable punishment against an actual spoliator as well as fair compensation to the victim of spoliation without creating a windfall.

A brief survey of a few of the jurisdictions that have previously recognized the tort of spoliation of evidence as an independent cause of action is relevant to our analysis. The California Court of Appeal for the Second District was the first court to adopt spoliation of evidence as an independent tort. See Smith v. Superior Court (1984), 151 Cal. App.3d 491, 198 Cal.Rptr. 829, 837. In that case, the plaintiff was injured when a wheel and tire flew off an oncoming van and smashed into the windshield of her car. After the accident, the van had been towed for repairs to the dealership that had originally installed the van's customized wheels. The dealership agreed to maintain certain parts pending further investigation by plaintiff's counsel. However, some time thereafter, the dealership destroyed, lost, or transferred the physical evidence. See Smith, 198 Cal.Rptr. at 831. In determining whether to recognize a new tort for the intentional spoliation of evidence, the court focused on the evolving nature of tort law. Relying on the basic premise that "for every wrong there is a remedy," the court established the tort of intentional spoliation of evidence as an independent cause of action. See Smith, 198 Cal.Rptr. at 832. In doing so, the court acknowledged that the extent and amount of damages in a spoliation case are highly speculative. See Smith, 198 Cal.Rptr. at 835-36. Finally, the court analogized the new tort of spoliation to the tort of interference with prospective business advantage already recognized by the State of California. The court concluded that a prospective civil action is a valuable probable expectancy that public policy dictates the court must protect from interference even though damages cannot be stated with certainty. See Smith, 198 Cal.Rptr. at 836-37. In addition, the court referenced the California Supreme Court decision of Williams v. State of California (1983), 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, issued the previous year, which implied that a cause of action for negligent spoliation of evidence might be established if the spoliator were under a duty to preserve the evidence. See Smith, 198 Cal.Rptr. at 833; see also Rubin, 51 Fla. L.Rev. at 349-50.

Approximately six months later, the Florida District Court of Appeal for the Third District recognized negligent spoliation of evidence as an independent cause of action. See Bondu v. Gurvich (Fla.Dist.Ct. App.1984), 473 So.2d 1307, 1313. In that case, the plaintiff's husband died while under anesthesia administered during triple bypass surgery. The plaintiff subsequently sued the hospital and the anesthesiologists claiming, as part of her multi-count complaint, the hospital intentionally interfered with her right of action by purposely and intentionally losing and/or destroying the anesthesiology records associated with her husband's surgery, which frustrated her ability to prove her case. See Bondu, 473 So.2d at 1309-10. Relying on the California decisions mentioned previously, the Florida court recognized that an action for negligent spoliation could only be maintained if the defendant owed a duty to the plaintiff to preserve the evidence. See Bondu, 473 So.2d at 1312. [19] Under Florida law, the hospital had both an administrative and statutory duty to preserve the anesthesiology records and provide them to the plaintiff upon her request. Based on the hospital's breach of this duty, which resulted in the loss of a medical negligence lawsuit, the court concluded that the plaintiff's complaint stated a cause of action. See Bondu, 473 So.2d at 1312-13.

In 1986 the Appellate Court of Illinois also considered whether to recognize the tort of spoliation of evidence. See Petrik v. Monarch Printing Corp. (1986), 150 Ill. App.3d 248, 103 Ill.Dec. 774, 501 N.E.2d 1312. In that case, the court ultimately concluded that it need not decide whether Illinois law would recognize such a tort due to the fatal lack of an indispensable element of the tort: the plaintiff failed to adequately plead a nexus between the failure of his suit and the destruction of evidence. See Petrik, 103 Ill.Dec. 774, 501 N.E.2d at 1321.

In 1995 the Supreme Court of Illinois was presented with a certified question from a trial court, which assumed that Illinois courts had previously recognized spoliation of evidence as an independent cause of action. See Boyd v. Travelers Ins. Co. (1995), 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267, 269. The supreme court pointed out that it had never done so, but in response to the posed question it held that an action for negligent spoliation could be stated under existing negligence law without creating a new tort. See Boyd, 209 Ill.Dec. 727, 652 N.E.2d at 269-70. The supreme court went on to state:

To state a cause of action for negligence, a plaintiff must plead the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages.

The general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute or another special circumstance. Moreover, a defendant may voluntarily assume a duty by affirmative conduct. In any of the foregoing instances, a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action.

Boyd, 209 Ill.Dec. 727, 652 N.E.2d at 270-71 (citations omitted).

Most recently, the United States Court of Appeals for the District of Columbia certified questions involving the availability of a cause of action for spoliation of evidence and the causation standard to be applied to the tort, to the District of Columbia Court of Appeals. See Holmes v. Amerex Rent-A-Car (D.C.1998), 710 A.2d 846, 847. In Holmes, the District of Columbia Court of Appeals held that negligent or reckless spoliation of evidence was an independent tort, set forth the elements of the tort, determined the standard for causation, and established an equitable system for calculating damages.

After a review of the decisions in those jurisdictions that have recognized the tort of spoliation of evidence, we adopt the torts of both intentional and negligent spoliation. A brief description of the elements of the torts is appropriate because of the unique nature of the torts, especially with respect to causation and damages.

I. NEGLIGENT SPOLIATION OF EVIDENCE

We agree with the states that have recognized the tort of negligent spoliation of evidence as an independent cause of action, which consists of the following elements:

(1) existence of a potential civil action;

(2) a legal or contractual duty to preserve evidence relevant to that action;

(3) destruction of that evidence;

(4) significant impairment of the ability to prove the potential civil action;

(5) a causal connection between the destruction of the evidence and the inability to prove the lawsuit;

(6) a significant possibility of success of the potential civil action if the evidence were available; and

(7) damages

See Holmes, 710 A.2d at 854; see also Rubin, 51 Fla. L.Rev. at 354-55. Generally, in order to prevail in a tort action, a plaintiff must [20] show by a preponderance of evidence that the defendant breached a legal duty to the plaintiff and that the breach was the cause of the plaintiff's damages. See Gentry v. Douglas Hereford Ranch, Inc., 1998 MT 182, ¶ 24, 290 Mont. 126, ¶ 24, 962 P.2d 1205, ¶ 24.

A. Duty

A duty to preserve evidence may arise in relation to a third-party spoliator where:

(1) the spoliator voluntarily undertakes to preserve the evidence and a person reasonably relies on it to his detriment;

(2) the spoliator entered into an agreement to preserve the evidence;

(3) there has been a specific request to the spoliator to preserve the evidence; or

(4) there is a duty to do so based upon a contract, statute, regulation, or some other special circumstance/relationship.

See Johnson v. United Servs. Auto. Ass'n (1998), 67 Cal.App.4th 626, 79 Cal.Rptr.2d 234, 239-41.

Here, the Olivers claim that a duty to preserve the equipment was established by virtue of their specific request to retain the machinery. The Defendants aptly point out that in order to trigger such a duty under the Johnson requirements, the request must be accompanied by an offer to pay the reasonable costs of preservation. See Johnson, 79 Cal.Rptr.2d at 240.

Here, we deviate to some extent from the elements set forth in Johnson. We see no need to require the requesting party to include an offer to pay reasonable costs of preservation in the request. In many instances, particularly where the evidence is small in size and manageable, there will be no costs associated with the preservation. However, after receiving such a request, the third party may demand the reasonable costs of preservation from the requesting party. Of course, the person requesting preservation would have the option of deciding whether or not to incur such costs. This condition places the burden of preservation where it rightfully belongs, on the person or entity requesting preservation.

In the present case, giving the Olivers the benefit of all favorable inferences, there are material facts in dispute with regard to whether Stimson received the request to preserve the evidence. Loren Hartman, the claims adjuster for Liberty Northwest, testified that his usual and customary procedure was to telefax copies of important letters, such as the May 24, 1994, request to preserve letter from the Olivers' attorney, to Stimson. He stated he had no reason to believe that he did not follow the custom in this instance. Furthermore, Mr. Jones, who considered himself the attorney for both Liberty Northwest and Stimson, testified that he participated in a telephone conference call which included key Stimson employees, wherein he discussed the letter point by point.

Given this testimony, we conclude that a jury may very well determine that Stimson had actual notice of the Olivers' request to preserve the evidence. Therefore, the District Court erred in awarding summary judgment to Stimson on the issue of duty.

B. Causation

After thorough review of the authorities from other jurisdictions, we agree with the District of Columbia Court of Appeal's determination of causation in Holmes v. Amerex Rent-A-Car. A third-party spoliator should not be forced to pay damages to a plaintiff who had only a frivolous underlying claim. Thus, some threshold showing of causation and damages is required. See Holmes, 710 A.2d at 850.

Recovery for the loss of a plaintiff's ability to prove the underlying case and a third party's interest in only compensating the plaintiff for the third party's harmful conduct must be balanced in determining the standard of proof for causation in an independent cause of action for negligent or intentional spoliation of evidence. Balancing of such interests requires the plaintiff to show a nexus between the destroyed evidence and the impairment of proving the underlying suit.

[21] While we agree that bringing an action for the underlying tort with the action for spoliation would be the most efficient approach, to require a plaintiff to either pursue and lose the underlying claim or demonstrate that the underlying claim is precluded is too harsh. Requiring plaintiffs to pursue futile lawsuits or to withhold relief from plaintiffs whose lawsuits have been severely hampered, but not precluded, by spoliation of evidence ignores the plaintiffs' interest in securing a reasonable recovery for a lost or impaired expectancy. Therefore, we hold that in order to prove causation, a plaintiff must show that: (1) the underlying claim was significantly impaired due to the spoliation of evidence; (2) a causal relationship exists between the projected failure of success in the underlying action and the unavailability of the destroyed evidence; and (3) the underlying action would enjoy a significant possibility of success if the spoliated evidence still existed. See Holmes, 710 A.2d at 851-52.

With respect to the third prong of causation, the standard of "significant possibility of success," is lower than the standard of "preponderance of the evidence." As such, a plaintiff must demonstrate a substantial and realistic possibility of succeeding, but need not demonstrate that such success was more likely than not. See Holmes, 710 A.2d at 852.

C. Damages

Generally, a plaintiff is required to prove damages with reasonable certainty. See Smith v. Zepp (1977), 173 Mont. 358, 370, 567 P.2d 923, 930. However, we have previously stated that when there is strong evidence of the fact of damage, a defendant should not escape liability because the amount of damage cannot be proven with precision. See Johnson v. Murray (1982), 201 Mont. 495, 506, 656 P.2d 170, 175 (citation omitted). In this regard, the United States Supreme Court noted early on that the speculative nature of damages should not bar recovery:

Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his act.

Story Parchment Co. v. Paterson Parchment Paper (1931), 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544, 548.

The speculative nature of damages is inherent in the uncertainties of proof relevant to the tort of spoliation of evidence. Thus, the interest of the plaintiff to recover the entire amount of damages that he would have received if the underlying action had been pursued successfully must be balanced with the defendant's interest in not providing the plaintiff with a windfall. The plaintiff should not be allowed to benefit more from the spoliation than he would have in the underlying suit. On the other hand, the defendant should be adequately punished for his offending conduct and should be required to adequately compensate the plaintiff for the loss of his ability to pursue the underlying suit. See Holmes, 710 A.2d at 853.

In taking these interests into consideration, it is necessary for the damages to be discounted to account for the uncertainties. Therefore, we hold that damages arrived at through reasonable estimation based on relevant data should be multiplied by the significant possibility that the plaintiff would have won the underlying suit had the spoliated evidence been available. For example, if a jury determined that the expected recovery in the underlying suit was $200,000 and that there was an estimated 60 percent possibility that the plaintiff would have recovered that amount in the underlying suit had it not been impaired by the spoliated evidence, then the award of damages would be $120,000 (60 percent of $200,000). See Holmes, 710 A.2d at 853-54.

II. INTENTIONAL SPOLIATION OF EVIDENCE

The District Court concluded that it did not need to reach the question of whether to recognize a claim for intentional spoliation of evidence in Montana. The reasoning employed by the District Court was that the intent of the spoliator goes to whether the intentional acts of the spoliator were [22] designed to disrupt the plaintiff's case. The District Court pointed out that the Olivers had not shown any facts that would support the conclusion that Stimson had destroyed the evidence for the purpose of disrupting the Olivers' third-party suit.

The intentional destruction of evidence to disrupt or defeat another person's right of recovery is highly improper and cannot be justified. See Coleman v. Eddy Potash, Inc. (1995), 120 N.M. 645, 905 P.2d 185, 189. Thus, we would be willing to recognize the tort of intentional spoliation of evidence if such a case so warranted it. However, this is not such a case. The District Court correctly determined that the Olivers had not presented any facts that indicated either Defendant had destroyed evidence for the purpose of disrupting their third-party suit. Accordingly, we affirm the District Court's award of summary judgment in favor of the Defendants with regard to the Olivers' claim of intentional spoliation of evidence.

Nonetheless, we agree with the courts and commentators that intentional spoliation of evidence consists of the following elements:

(1) the existence of a potential lawsuit;

(2) the defendant's knowledge of the potential lawsuit;

(3) the intentional destruction of evidence designed to disrupt or defeat the potential lawsuit;

(4) disruption of the potential lawsuit;

(5) a causal relationship between the act of spoliation and the inability to prove the lawsuit; and

(6) damages

See Coleman, 905 P.2d at 189 (citing Philip A. Lionberger, Interference with Prospective Civil Litigation by Spoliation of Evidence: Should Texas Adopt a New Tort?, 21 St. Mary's L.J. 209, 222 (1989); Smith v. Howard Johnson Co. (1993) 67 Ohio St.3d 28, 615 N.E.2d 1037, 1038); see also Steffen Nolte, The Spoliation Tort: An Approach to Underlying Principles, 26 St. Mary's L.J. 351, 361-62.

The elements with regard to causation and damages for intentional spoliation of evidence are the same as those for negligent spoliation of evidence. A plaintiff bringing a claim for intentional spoliation of evidence is still required to prove a causal relationship between the act of spoliation and the inability to prove the lawsuit and damages. Therefore, we conclude that the standard of proof required for causation and the methodology for determining damages is the same for both negligent and intentional spoliation of evidence.

ISSUE 3

Did the District Court err in awarding summary judgment in favor of Liberty Northwest Corporation?

The Olivers allege that the agency relationship between Stimson and Liberty Northwest results in both Stimson and Liberty Northwest being responsible to the Olivers for spoliation of evidence. Liberty Northwest counters by pointing out that the Olivers' Second Amended Complaint contains four separate causes of action, none of which contains any allegation of wrongdoing on the part of Liberty Northwest. As a result, the District Court granted summary judgment in favor of Liberty Northwest.

The Olivers stated the following purported basis for their claim against Liberty Northwest:

In recent depositions and in pleadings, Stimson contends that certain correspondence from the Plaintiffs' attorney, specifically Exhibit B, the May 24 correspondence from Plaintiffs' attorneys to ... the attorney for Stimson, was never received by Stimson, even though it was received by [the attorney] and Liberty Northwest. Therefore, since the tort of spoliation in the context of a third-party claim emanating from a workers' compensation claim is undecided in Montana, the status of Liberty Northwest and the potential independent culpability of Liberty Northwest necessitates that Liberty Northwest be brought in as a party to this litigation for determination of the culpability, if any, in the Plaintiffs' litigation seeking redress for Stimson's spoliation of evidence.

[23] In this regard, the District Court stated that the Olivers' claims against Liberty Northwest were at a minimum dependent upon the success of the Olivers' claims against Stimson and proof that Liberty Northwest's agents were also acting as actual or ostensible agents for Stimson as it relates to shuffling correspondence between the Olivers' counsel, Liberty Northwest's actual agents, and Stimson's actual agents during the days following Mr. Oliver's accident.

It is the burden of the plaintiff to adequately plead a cause of action. See Ryan v. City of Bozeman (1996), 279 Mont. 507, 512, 928 P.2d 228, 231. In addition, we have stated that a complaint is sufficient if it concisely states facts upon which relief can be granted upon any legally sustainable basis. However, with this premise in mind, we emphasized that:

[A] complaint must state something more than facts which, at the most, would breed only a suspicion that plaintiffs have a right to relief. Liberality does not go so far as to excuse omission of that which is material and necessary in order to entitle relief.

Ryan, 279 Mont. at 512, 928 P.2d at 231 (citation omitted).

With regard to Liberty Northwest, the Olivers have failed to meet their burden. The Olivers have failed to concisely state facts upon which relief could be granted in relation to their claims for spoliation of evidence against Liberty Northwest. Therefore, we conclude that the District Court did not err in granting summary judgment in favor of Liberty Northwest.

Accordingly, we affirm in part and reverse in part the decision of the District Court. We affirm the District Court's grant of summary judgment in favor of Liberty Northwest and the District Court's grant of summary judgment in favor of the Defendants with regard to the Olivers' claim for intentional spoliation of evidence. We reverse the District Court's conclusion that the exclusivity provisions of the Montana Workers' Compensation Act bar the Olivers' claims against Mr. Oliver's employer for spoliation of evidence and the District Court's grant of summary judgment in favor Stimson with regard to the Olivers' claim for negligent spoliation of evidence. In light of our decision to recognize the tort of negligent spoliation of evidence as an independent cause of action against third parties who destroy evidence, we remand this cause to the District Court for further proceedings consistent with this opinion.

J.A. TURNAGE, C.J., JAMES C. NELSON, TERRY N. TRIEWEILER, WILLIAM E. HUNT, SR., and W. WILLIAM LEAPHART, JJ., concur.

Justice KARLA M. GRAY, concurring in part and dissenting in part.

I concur in the Court's opinion on issues one and three and in that portion of the opinion on issue two which generally adopts the tort of negligent spoliation of evidence by a third party. I dissent from the duty element of that tort as defined by the Court and from the application of that duty in this case. Finally, I dissent from the Court's definition of the tort of intentional spoliation of evidence by a third party. I would affirm the District Court on issue two.

In large part, the Court adopts the Johnson approach to when a duty to preserve evidence may arise in relation to an alleged third-party spoliator. It departs from that approach, however, in one particular. I would not do so.

In Johnson, the California Court of Appeals defined the "specific request" duty basis as a specific request to preserve "accompanied by an offer to pay the cost or otherwise bear the burden of preserving." Johnson, 79 Cal.Rptr.2d at 241. As that court observed, "[w]e do not think a tort duty to preserve should be created simply by someone specifically requesting a third party to preserve something. Preservation may entail significant burdens." Johnson, 79 Cal. Rptr.2d at 241 (citation omitted). I agree.

I also agree with the California court that it is this added condition that "places the burden of preservation rightfully where it belongs—on the person or entity requesting preservation." See Johnson, 79 Cal.Rptr.2d at 241. A simple request to a third party to preserve that party's property for what [24] might be a significant period of time strikes me as an inadequate and unfair basis upon which to premise the existence of a legal duty. Indeed, I am aware of no other court which has imposed a legal duty on a third party to preserve its property for another's benefit on the basis of a mere request. I would adopt the "specific request accompanied by an offer to pay" basis for the existence of a duty to preserve set forth by the Johnson court, apply it here, and conclude that—since no offer to pay was made—no duty to preserve arose.

Instead of doing so, the Court states that there is no need to require the requesting party to include the offer to pay in the request because, in many instances, there will be no costs associated with the preservation. So, it places the obligation with regard to the subject of payment of costs on the alleged spoliator, by allowing the spoliator to demand the payment of costs associated with the preservation after a duty to preserve has come into existence. But the question is not whether, or to what extent, there will be costs for preserving the property. The question is where the obligation with regard to payment—and raising the payment issue— properly belongs. If there are no associated costs, the requesting party ultimately will pay no costs whether or not the obligation to offer to pay is a required part of the basis for the existence of the duty to preserve. The point, though, is that the obligation to offer to pay before a legal duty arises seems to me to be the proper balance and it, rather than the approach adopted by the Court, places the burden where it properly belongs—on the party making the request. See Johnson, 79 Cal.Rptr.2d at 241.

The upshot of the Court's approach to duty, of course, results in this case going forward on the basis that Stimson had a duty to preserve evidence—assuming the notice issue is resolved in the Olivers' favor—on the basis of the Olivers' mere request that it do so, notwithstanding that Stimson has forever lost the right to demand payment of the reasonable costs of preservation. This is simply not fair to Stimson and, indeed, it significantly undermines the Court's statement that appellate courts must insure that the "parties" to litigation have a fair opportunity to present their claims or defenses. It is true that the Olivers now have a fair opportunity to present their claim. Stimson does not have a corresponding opportunity. Had Stimson had the opportunity to demand the reasonable costs of preservation—an opportunity on which the Court places much importance—it may be that the Olivers would have declined to incur such costs and this action never would have been filed. The fact is that, at least in this case, the Court's placing of the burden of preservation "where it rightfully belongs, on the person or entity requesting preservation[,]" is an illusion.

Finally, I would not define the elements of the tort of intentional spoliation of evidence in the case presently before us. The Court properly notes that this case does not warrant the adoption or recognition of such a tort due to the total absence of any facts which would support such a cause of action. For the Court to then define the elements of an as yet unrecognized and unadopted tort results in an advisory opinion on a subject admittedly not before us. That portion of the Court's opinion is purely and totally dicta and, for that reason, I cannot join it.

I join the Court in reversing the District Court on issue one and affirming it on issue three. I dissent from the Court's reversal of the District Court on issue two.

[403] Paul R. Frederick, Boston, Mass., with whom Badger, Parrish, Sullivan & Frederick, Boston, Mass., was on brief, for appellant.

Melvin S. Louison, Taunton, Mass., with whom Walter J. Hurley, Boston, Mass., was on brief, for appellees.

Before ALDRICH, Chief Judge, and SWEENEY and WYZANSKI, District Judges.

WYZANSKI, District Judge.

In this personal injury case brought within the diversity jurisdiction of the United States District Court, the chief issue is whether there was sufficient evidence of the alleged negligence of the defendant manufacturer of insecticides to permit a jury to hold it liable for the death of two decedents of whose estates plaintiffs are administrators.

On the view of the evidence most favorable to plaintiffs, who are seeking to sustain jury verdicts returned in their favor, these are what a jury could reasonably have found to be the facts.

Defendant is a manufacturer and seller of 1.5% Parathion dust. Defendant labeled its product, because of its poisonous character, as follows:

"CAUTION: May Be Fatal If Swallowed, Inhaled or Absorbed Through Skin. Rapidly Absorbed Through Skin. Do not get in eyes or on skin. Wear natural rubber gloves, protective clothing and goggles. In case of contact wash immediately with soap and water. Wear a mask or respirator of a type passed by the U.S. Department of Agriculture for parathion protection. Keep all unprotected persons out of operating areas or vicinity where there may be danger of drift. Vacated areas should not be re-entered until drifting insecticide and volatile residues have dissipated. Do not contaminate feed and foodstuffs. Wash hands, arms and face thoroughly with soap and water before eating or smoking. Wash all contaminated clothing with soap and hot water before re-use."

In 1957 defendant forwarded to the U.S. Department of Agriculture its application, under the Federal Insecticide, Fungicide, and Rodenticide Act, [codified in 7 U.S.C. ch. 6 §§ 135 through 135k] for registration of 1.5% Parathion dust, and annexed a copy of the above-quoted label. May 20, 1957 the Department granted registration with the understanding that in the label "the word `WARNING' should be substituted for the heading word `CAUTION'."

Defendant sold bags of this Parathion dust to Viveiros, the operator of a farm in Taunton, Massachusetts. He employed plaintiffs' intestates. Both of the employees were natives of Puerto Rico. One could read some English; the other could not read any. As of August 1959, the former had been for one year, the latter for two years, in Viveiros' employ. During their employment, they, in their capacity as laborers and farm hands, had often used various chemicals for dusting and spraying. They had dusted with Parathion on several occasions, and indeed [404] four times in the week ending August 14, 1959.

Viveiros, knowing the dangerous character of Parathion and the other insecticides used on his farm, kept available for his employees gas masks, rubber raincoats, and rubber boots. Viveiros says he told the intestates and his other laborers that the chemicals including Parathion were dangerous, and that if they did not use the masks and coats and follow instructions they were likely to die. But it is to be borne in mind that plaintiffs' intestates, being dead, were unable to confirm or deny those statements; and the statements themselves came from a person who was, in the lower court, one of the parties defendant against plaintiffs' claims.

August 14, 1959 the intestates went to work dusting with Parathion. At 9:15 A.M. Viveiros observed them without masks or coats; but they were then resting and eating. After a full day of dusting, both intestates were sick. After 6 P.M. they were taken in a semi-comatose condition to a hospital. They died almost immediately after arrival. There was adequate evidence that in each case the cause of death was the effect upon them of having used Parathion in dusting operations on the Viveiros farm on the day of their death.

In his characteristically explicit charge to the jury, Judge Ford drew to their attention that each plaintiff had alleged that defendant "was negligent in failing to properly, openly and conspicuously label its said parathion products so as to sufficiently warn anyone supplying or using parathion of the inherent danger in its use." The judge then noted that a manufacturer "who supplies * * * a product for another to use is subject to liability to those whom the supplier would expect to use the product, for bodily harm caused by "the use of the product in a manner for which and by a person for whose use it is supplied, if the manufacturer: (a) knows from the facts supplied to him that the chattel, the product, is likely to be dangerous for the use for which it is supplied; (b) has no reason to believe that those for whose use the product is supplied will realize its dangerous condition; and (c) fails to exercise, commensurate with the risk involved, reasonable care to inform them by adequate instructions or warnings of its dangerous condition."

"An adequate warning, members of the jury, is one calculated to bring home to a reasonably prudent person, a reasonably prudent user of the product, the nature and extent of the danger of the product involved."

Then, having reminded the jury that he was commenting on the evidence "only in an advisory capacity", Judge Ford drew to the jury's attention the cautionary label defendant had affixed to its product, informed them that if defendant had substantially complied "with the requirements of the Federal Insecticide Act * * * it is some evidence that * * * they exercised reasonable care", reminded them that plaintiff's counsel had suggested "that there should be a skull and crossbones on the warning", and then (certainly well within his rights as a trial judge, but nonetheless making fairly clear his personal position on the issue of liability) asked the jury the question whether defendant "should * * *, for example, put a coffin on the notice?"

Thereafter Judge Ford charged the jury with respect to issues of contributory negligence. In the course of so doing he told them: "You could find members of the jury, and I do not say you should but you could find it to be contributory negligence if you find that a user, here the deceased, of an inherently dangerous product such as parathion were adequately warned of the risk involved in its use and provided with adequate protection, failed to use the protection against its dangers and the failure to use the protection was the proximate cause of their injuries."

Responding to Judge Ford's accurate and admirable instructions of law, but declining to follow the rather broad hints in the judge's advisory comments on the evidence, (and undoubtedly not appreciating the probable reason why Judge [405] Ford, instead of taking general verdicts, laid before the jury special questions,) the jury, in its special verdicts, answered "no" to each of the following interrogatories:

"1. Did the defendant Hubbard-Hall Chemical Company exercise reasonable care in giving the deceased Velez-Velez and Ramos-Sanchez adequate warning of the dangerous nature of Parathion and instructions as to its use?"

"2. Did either Manuel Velez-Velez or Jaime Ramos-Sanches fail under the circumstances to exercise the care of an ordinarily prudent person in the use of the Parathion?"

The jury also assessed damages; and on the special verdicts as a whole, Judge Ford entered judgments for plaintiffs, from which defendant has appealed.

The appeals must be dismissed.

We are of opinion that the jury could reasonably have believed that defendant should have foreseen that its admittedly dangerous product would be used by, among others, persons like plaintiffs' intestates, who were farm laborers, of limited education and reading ability, and that a warning even if it were in the precise form of the label submitted to the Department of Agriculture would not, because of its lack of a skull and bones or other comparable symbols or hieroglyphics, be "adequate instructions or warnings of its [Parathion's] dangerous condition."

The approval of the label given by the Department of Agriculture merely satisfied the conditions laid down by Congress for the shipment of the product in interstate commerce. Neither Congress nor the Department explicitly or implicitly provided that the Department's approval of the label carried with it as a corollary the proposition that defendant had met the possibly higher standard of due care imposed by the common law of torts applied under the local state law of Massachusetts in actions of tort for negligence. Cf. Spruill v. Boyle-Midway, 4th Cir., 309 F.2d 79; Tampa Drug Co. v. Wait, (Fla.), 103 So.2d 603. Nor is it argued that in enacting the Federal Insecticide, Fungicide, and Rodenticide Act, Congress had occupied the whole field of civil liability between private parties in tort actions founded on negligence, so that federal rules of law governed such actions and, by virtue of the supremacy clause of U.S. Constitution Article VI, ousted state law from its normal area of coverage. Indeed all counsel at our bar assumed, as we do, the contrary; that is, we have all proceeded on the premise that, defendant's product having had its impact in Massachusetts upon plaintiffs' intestates, the governing law is the local common law of this Commonwealth.

Even if it be assumed that contributory negligence is an available defense in an action premised on the alleged breach of a duty to warn the plaintiff, [a point not free from doubt, See Dillard and Hart, Product Liability: Directions for Use and the Duty to Warn, 41 Virginia L.R. 145, 177-178 (1955),] it cannot be ruled as a matter of law that on the evidence in this case defendant, beyond effective challenge, maintained its burden of proving that plaintiffs' intestates were contributorily negligent in not having used masks and raincoats. Defendant had the burden of convincing the jury that the intestates had received oral adequate warnings from Viveiros. To be sure, he said he gave such warnings. But he was an interested party. The jury may not have credited his testimony. If they did not, then defendant failed to bear its burden of proving contributory negligence.

While Judge Ford seems to have thought that defendant deserved to prevail, he in the exercise of a sound judicial discretion, did not choose to exercise his prerogative to set aside the verdicts as against the weight of the evidence. We cannot upset the judgments entered thereon on the alleged ground of want of sufficient evidence to sustain them.

Judgment will be entered affirming the judgment of the District Court.

[406] ALDRICH, Chief Judge (concurring).

I concur in the court's opinion in substantial measure, but with one caveat. Strictly, I do not think the question need be one of contributory negligence. If a party has a duty to warn, and fails adequately to perform, as could be found here, it may nonetheless be that the other party in fact possessed the knowledge which a proper exercise of the duty would have conveyed. In such event there can be no recovery. New York Central R.R. v. Moynihan, 1 Cir., 1964, 338 F.2d 644. A plaintiff might, in fact, have understood the notice given by the defendant in spite of its inadequacy, or might have received sufficient warning from other sources. However, the burden of proof should be upon the defendant to show that the plaintiff did have such knowledge. The very reason that the law imposes a duty to give notice in a particular case is the assumption that, because of the danger not commonly known to users, "a warning is needed." See Cadogan v. Boston Consolidated Gas Co., 1935, 290 Mass. 496, 500, 195 N.E. 772. That the plaintiff fell outside the common class should be the defendant's burden, not the plaintiff's.

While the Massachusetts cases do not appear to have dealt explicitly with the burden of proof in this situation, I do observe that in Thornhill v. Carpenter-Morton Co., 1915, 220 Mass. 593, 108 N.E. 474, in permitting recovery for failure to warn of the dangerous characteristics of a product, the court remarked, at p. 598, 108 N.E. at p. 492 that the plaintiff "is not shown to have had" the information which the defendant had failed to disclose. This must have meant not shown by the defendant.

This difference in principle leads to no difference in result. Even if the test for contributory negligence might, in some instances, be more severe than simply whether a user in fact possessed the knowledge which a proper notice from the defendant would have given him, the court here put to the jury a special question inquiring whether each intestate assumed the risk of injury. In its charge it explained that this meant whether intestates knew "the facts which created the danger * * * and appreciated the risk of personal injury that was involved in such facts." The jury answered in the negative as to each.

The jury has found that the defendant did not use an adequate form of warning. It has found that the intestates did not in fact receive warning. The defendant has no present complaint.

[567 N.Y.S.2d 961] Maynard, O'Connor & Smith (Edwin J. Tobin, Jr., of counsel), Albany, for appellant.

Vincent E. Vicinanzo, Amsterdam, for respondent.

Before MAHONEY, P.J., and MIKOLL, YESAWICH, CREW and HARVEY, JJ.

CREW, Justice.

Appeal from an order of the Supreme Court (Best, J.), entered June 1, 1990 in Montgomery County, which denied defendant's motion for summary judgment dismissing the complaint.

On September 1, 1983 Ruth Dillenbeck, the mother of David, Russell and George Dillenbeck (hereinafter collectively referred to as the children), consulted with defendant because of persistent headaches and occasional episodes of unconsciousness. Defendant diagnosed Dillenbeck's condition as migraine and prescribed Fiorinal. In response to her inquiry, defendant advised Dillenbeck that she could drive a car. On September 6, 1983 at about 9:30 A.M. Dillenbeck experienced a headache and took a Fiorinal tablet. At about 10:30 A.M. Dillenbeck was operating her car, in which the children were passengers, when she lost consciousness and collided with a bridge abutment. As a result of injuries sustained in the accident, plaintiff commenced this action on behalf of the children against defendant seeking money damages for his negligence and malpractice in treating Dillenbeck. Specifically, plaintiff alleged that defendant was negligent in that, contrary to his advice that Dillenbeck could drive a car, he should have directed her not to drive knowing that Fiorinal had a sedative effect. After issue was joined, defendant moved for summary judgment dismissing the complaint on the ground that the complaint failed to state a cause of action. Supreme Court denied the motion and this appeal ensued.

[172 A.D.2d 913] Defendant claims that he owed no legal duty to the children, which is essential to a recovery in negligence (Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99). As a general rule, a defendant has no legal duty to control the conduct of third persons so as to prevent them from harming others (see, Pulka v. Edelman, 40 N.Y.2d 781, 783, 390 N.Y.S.2d 393, 358 N.E.2d 1019). However, certain relationships may give rise to such a duty, but then only when the defendant has the ability and authority to control the third persons' conduct (see, Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 526 N.E.2d 4). The threshold inquiry here, therefore, is whether defendant had sufficient ability and authority to control the conduct of Dillenbeck so as to give rise to a duty on his part to protect the children. We hold that he did not. Dillenbeck consulted with defendant for headaches. The services rendered by defendant were examination, diagnosis, prescription and advice. Dillenbeck was free to accept [567 N.Y.S.2d 962] or reject defendant's diagnosis and advice and she was at liberty to seek a second opinion. In short, she had the right to decide what treatment and advice she would accept or reject (cf., Fogal v. Genesee Hosp., 41 A.D.2d 468, 473, 344 N.Y.S.2d 552). Contrary to plaintiff's contentions, advice does not equate to control.

Plaintiff contends, however, that a legal duty does exist by reason of the fact that defendant knew or had reason to know that the children were relying on him to give appropriate advice to their mother. In support of that position plaintiff cites Eiseman v. State of New York, 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128. While the Court of Appeals in Eiseman discussed the concept of a physician's duty to persons other than the patient, it should be noted that the discussion was obiter dictum. Accepting the case as indicative of what the court may determine in futuro, we observe that the court, in suggesting the potential for a legal duty owing from a physician to a third party, stated that "we have further required actual privity, or something approaching privity, such as conduct on the part of defendant linking defendant to plaintiff which evinces defendant's understanding of plaintiff's reliance" (id., at 188, 518 N.Y.S.2d 608, 511 N.E.2d 1128). In this case, there are no allegations in the complaint or the bill of particulars of the children's reliance on defendant's conduct or of knowledge by defendant of any such reliance. In view of the fact that defendant's motion was for summary judgment dismissing the complaint for failure to state a cause of action, and in view of plaintiff's failure to allege reliance and knowledge thereof, the motion should have been granted.

Order reversed, on the law, without costs, motion granted, summary judgment awarded to defendant and complaint dismissed. [172 A.D.2d 914]

MAHONEY, P.J., and MIKOLL, YESAWICH and HARVEY, JJ., concur.

[478] Mr. Albert J. Ahern, Jr., Washington, D. C., for appellant.

Mr. Laurence T. Scott, Washington, D. C., for appellee.

Before TAMM, MacKINNON and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

The appellee apartment corporation states that there is "only one issue presented for review * * * whether a duty should be placed on a landlord to take steps to protect tenants from foreseeable criminal acts committed by third parties". The District Court as a matter of law held that there is no such duty. We find that there is, and that in the circumstances here the applicable standard of care was breached. We therefore reverse and remand to the District Court for the determination of damages for the appellant.

I

The appellant, Sarah B. Kline, sustained serious injuries when she was criminally assaulted and robbed at approximately 10:15 in the evening by an intruder in the common hallway of an apartment house at 1500 Massachusetts Avenue. This facility, into which the appellant Kline moved in October 1959, [479] is a large apartment building with approximately 585 individual apartment units. It has a main entrance on Massachusetts Avenue, with side entrances on both 15th and 16th Streets. At the time the appellant first signed a lease a doorman was on duty at the main entrance twenty-four hours a day, and at least one employee at all times manned a desk in the lobby from which all persons using the elevators could be observed.^[1] The 15th Street door adjoined the entrance to a parking garage used by both the tenants and the public. Two garage attendants were stationed at this dual entranceway; the duties of each being arranged so that one of them always was in position to observe those entering either the apartment building or the garage. The 16th Street entrance was unattended during the day but was locked after 9:00 P.M.

By mid-1966, however, the main entrance had no doorman, the desk in the lobby was left unattended much of the time, the 15th Street entrance was generally unguarded due to a decrease in garage personnel, and the 16th Street entrance was often left unlocked all night. The entrances were allowed to be thus unguarded in the face of an increasing number of assaults, larcenies, and robberies being perpetrated against the tenants in and from the common hallways of the apartment building. These facts were undisputed,^[2] and were supported by a detailed chronological listing of offenses admitted into evidence. The landlord had notice of these crimes and had in fact been urged by appellant Kline herself prior to the events leading to the instant appeal to take steps to secure the building.^[3]

[480] Shortly after 10:00 P.M. on November 17, 1966, Miss Kline was assaulted and robbed just outside her apartment on the first floor above the street level of this 585 unit apartment building. This occurred only two months after Leona Sullivan, another female tenant, had been similarly attacked in the same commonway.

II

At the outset we note that of the crimes of violence, robbery, and assault which had been occurring with mounting frequency on the premises at 1500 Massachusetts Avenue, the assaults on Miss Kline and Miss Sullivan took place in the hallways of the building, which were under the exclusive control of the appellee landlord. Even in those crimes of robbery or assault committed in individual apartments, the intruders of necessity had to gain entrance through the common entry and passageways.^[4] These premises fronted on three heavily traveled streets, and had multiple entrances. The risk to be guarded against therefore was the risk of unauthorized entrance into the apartment house by intruders bent upon some crime of violence or theft.

While the apartment lessees themselves could take some steps to guard against this risk by installing extra heavy locks and other security devices on the doors and windows of their respective apartments, yet this risk in the greater part could only be guarded against by the landlord. No individual tenant had it within his power to take measures to guard the garage entranceways, to provide scrutiny at the main entrance of the building, to patrol the common hallways and elevators, to set up any kind of a security alarm system in the building, to provide additional locking devices on the main doors, to provide a system of announcement for authorized visitors only, to close the garage doors at appropriate hours, and to see that the entrance was manned at all times.

The risk of criminal assault and robbery on a tenant in the common hallways of the building was thus entirely predictable; that same risk had been occurring with increasing frequency over a period of several months immediately prior to the incident giving rise to this case; it was a risk whose prevention or minimization was almost entirely within the power of the landlord; and the risk materialized in the assault and robbery of appellant on November 17, 1966.

III

In this jurisdiction, certain duties have been assigned to the landlord because of his control of common hallways, lobbies, stairwells, etc., used by all tenants in multiple dwelling units. This Court in Levine v. Katz, 132 U.S.App.D.C. 173, [481] 174, 407 F.2d 303, 304 (1968), pointed out that:

It has long been well settled in this jurisdiction that, where a landlord leases separate portions of property and reserves under his own control the halls, stairs, or other parts of the property for use in common by all tenants, he has a duty to all those on the premises of legal right to use ordinary care and diligence to maintain the retained parts in a reasonably safe condition.

While Levine v. Katz dealt with a physical defect in the building leading to plaintiff's injury, the rationale as applied to predictable criminal acts by third parties is the same.^[5] The duty is the landlord's because by his control of the areas of common use and common danger he is the only party who has the power to make the necessary repairs or to provide the necessary protection.

As a general rule, a private person does not have a duty to protect another from a criminal attack by a third person. We recognize that this rule has sometimes in the past been applied in landlord-tenant law, even by this court.^[6] Among the reasons for the application of this rule to landlords are: judicial reluctance to tamper with the traditional common law concept of the landlord-tenant relationship; the notion that the act of a third person in committing an intentional tort or crime is a superseding cause of the harm to another resulting therefrom; the oftentimes difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and conflict with the public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.

But the rationale of this very broad general rule falters when it is applied to the conditions of modern day urban apartment living, particularly in the circumstances of this case. The rationale of the general rule exonerating a third party from any duty to protect another from a criminal attack has no applicability to the landlord-tenant relationship in multiple dwelling houses. The landlord is no insurer of his tenants' safety, but he certainly is no bystander. And where, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it does not seem unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to his tenants.

This court has recently had occasion to review landlord-tenant law as applied to multiple family urban dwellings. In Javins v. First National Realty Corporation,^[7] the traditional analysis of a lease as being a conveyance of an interest in land — with all the medieval connotations this often brings — was reappraised, and found lacking in several respects. This court noted that the value of the lease to the modern apartment dweller is that it gives him "a well known package of goods and services — a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance."^[8] It does not give him the land itself, and to the tenant as a practical matter this is supremely [482] unimportant. Speaking for the court, Judge Wright then went on to state, "In our judgment the trend toward treating leases as contracts is wise and well considered. Our holding in this case reflects a belief that leases of urban dwelling units should be interpreted and construed like any other contract."^[9]

Treating the modern day urban lease as a contract, this court in Javins, supra, recognized, among other things, that repair of the leased premises in a multiple dwelling unit may require access to equipment in areas in the control of the landlord, and skills which no urban tenant possesses. Accordingly, this court delineated the landlord's duty to repair as including continued maintenance of the rented apartment throughout the term of the lease, rightfully placing the duty to maintain the premises upon the party to the lease contract having the capacity to do so, based upon an implied warranty of habitability.^[10]

In the case at bar we place the duty of taking protective measures guarding the entire premises and the areas peculiarly under the landlord's control against the perpetration of criminal acts upon the landlord, the party to the lease contract who has the effective capacity to perform these necessary acts.

As a footnote to Javins, supra, Judge Wright, in clearing away some of the legal underbrush from medieval common law obscuring the modern landlord-tenant relationship, referred to an innkeeper's liability in comparison with that of the landlord to his tenant. "Even the old common law courts responded with a different rule for a landlord-tenant relationship which did not conform to the model of the usual agrarian lease. Much more substantial obligations were placed upon the keepers of inns (the only multiple dwelling houses known to the common law)."

Specifically, innkeepers have been held liable for assaults which have been committed upon their guests by third parties, if they have breached a duty which is imposed by reason of the innkeeper-guest relationship. By this duty, the innkeeper is generally bound to exercise reasonable care to protect the guest from abuse or molestation from third parties, be they innkeeper's employees, fellow guests, or intruders, if the attack could, or in the exercise of reasonable care, should have been anticipated.^[11]

Liability in the innkeeper-guest relationship is based as a matter of law either upon the innkeeper's supervision, care, or control of the premises,^[12] or by reason of a contract which some courts have implied from the entrustment by the guest of his personal comfort and safety to the innkeeper. In the latter analysis, the contract is held to give the guest the right to expect a standard of treatment at the hands of the innkeeper which includes an obligation on the part of the latter to exercise reasonable care in protecting the guest.^[13]

Other relationships in which similar duties have been imposed include landowner-invitee, businessman-patron, employer-employee, [483] school district-pupil, hospital-patient, and carrier-passenger.^[14] In all, the theory of liability is essentially the same: that since the ability of one of the parties to provide for his own protection has been limited in some way by his submission to the control of the other, a duty should be imposed upon the one possessing control (and thus the power to act) to take reasonable precautions to protect the other one from assaults by third parties which, at least, could reasonably have been anticipated. However, there is no liability normally imposed upon the one having the power to act if the violence is sudden and unexpected provided that the source of the violence is not an employee of the one in control.^[15]

We are aware of various cases in other jurisdictions following a different line of reasoning, conceiving of the landlord and tenant relationship along more traditional common law lines, and on varying fact situations reaching a different result from that we reach here. Typical of these is a much cited (although only a 4-3) decision of the Supreme Court of New Jersey, Goldberg v. Housing Authority of Newark, supra relied on by appellee landlord here. There the court said:

Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide "police" protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arm of the owner. And since hijacking and attack upon occupants of motor vehicles are also foreseeable, it would be the duty of every motorist to provide armed protection for his passengers and the property of others. Of course, none of this is at all palatable.^[16]

This language seems to indicate that the court was using the word foreseeable interchangeably with the word possible. In that context, the statement is quite correct. It would be folly to impose liability for mere possibilities. But we must reach the question of liability for attacks which are foreseeable in the sense that they are probable and predictable. Thus, the United States Supreme Court, in Lillie v. Thompson^[17] encountered no difficulty in finding that the defendant-employer was liable to the employee because it "was aware of conditions which created a likelihood" of criminal attack.

In the instant case, the landlord had notice, both actual and constructive, that the tenants were being subjected to crimes against their persons and their property in and from the common hallways. For the period just prior to the time of the assault upon appellant Kline the record contains unrefuted evidence that the apartment building was undergoing a rising wave of crime. Under these conditions, we can only conclude that the landlord here "was aware of conditions which created a likelihood" (actually, almost a certainty) that further criminal attacks upon tenants would occur.

Upon consideration of all pertinent factors, we find that there is a duty of protection owed by the landlord to the tenant in an urban multiple unit apartment dwelling.

Summarizing our analysis, we find that this duty of protection arises, first of all, from the logic of the situation itself. If we were answering without the benefit of any prior precedent the issue as posed [484] by the appellee landlord here, "whether a duty should be placed on a landlord to take steps to protect tenants from foreseeable criminal acts committed by third parties," we should have no hesitancy in answering it affirmatively, at least on the basis of the facts of this case.

As between tenant and landlord, the landlord is the only one in the position to take the necessary acts of protection required. He is not an insurer, but he is obligated to minimize the risk to his tenants. Not only as between landlord and tenant is the landlord best equipped to guard against the predictable risk of intruders, but even as between landlord and the police power of government, the landlord is in the best position to take the necessary protective measures. Municipal police cannot patrol the entryways and the hallways, the garages and the basements of private multiple unit apartment dwellings. They are neither equipped, manned, nor empowered to do so. In the area of the predictable risk which materialized in this case, only the landlord could have taken measures which might have prevented the injuries suffered by appellant.

We note that in the fight against crime the police are not expected to do it all;^[18] every segment of society has obligations to aid in law enforcement and to minimize the opportunities for crime. The average citizen is ceaselessly warned to remove keys from automobiles and, in this jurisdiction, may be liable in tort for any injury caused in the operation of his car by a thief if he fails to do so, notwithstanding the intervening criminal act of the thief, a third party. Gaither v. Myers, 131 U.S.App.D.C. 216, 404 F.2d 216 (1968). In addition, auto manufacturers are persuaded to install special locking devices and buzzer alarms, and real estate developers, residential communities, and industrial areas are asked to install especially bright lights to deter the criminally inclined. It is only just that the obligations of landlords in their sphere be acknowledged and enforced.^[19]

[485] Secondly, on the rationale of this court in Levine v. Katz, Kendall v. Gore Properties, and Javins v. First National Realty Corporation, supra, there is implied in the contract between landlord and tenant an obligation on the landlord to provide those protective measures which are within his reasonable capacity. Here the protective measures which were in effect in October 1959 when appellant first signed a lease were drastically reduced. She continued after the expiration of the first term of the lease on a month to month tenancy. As this court pointed out in Javins, supra, "Since the lessees continue to pay the same rent, they were entitled to expect that the landlord would continue to keep the premises in their beginning condition during the lease term. It is precisely such expectations that the law now recognizes as deserving of formal, legal protection."^[20]

Thirdly, if we reach back to seek the precedents of common law, on the question of whether there exists or does not exist a duty on the owner of the premises to provide protection against criminal acts by third parties, the most analogous relationship to that of the modern day urban apartment house dweller is not that of a landlord and tenant, but that of innkeeper and guest. We can also consider other relationships, cited above, in which an analogous duty has been found to exist.

IV

We now turn to the standard of care which should be applied in judging if the landlord has fulfilled his duty of protection to the tenant. Although in many cases the language speaks as if the standard of care itself varies, in the last analysis the standard of care is the same — reasonable care in all the circumstances.^[21] [486] The specific measures to achieve this standard vary with the individual circumstances. It may be impossible to describe in detail for all situations of landlord-tenant relationships, and evidence of custom amongst landlords of the same class of building may play a significant role in determining if the standard has been met.

In the case at bar, appellant's repeated efforts to introduce evidence as to the standard of protection commonly provided in apartment buildings of the same character and class as 1500 Massachusetts Avenue at the time of the assault upon Miss Kline were invariably frustrated by the objections of opposing counsel and the impatience of the trial judge. At one point during appellant's futile attempts, the judge commented with respect to the degree of proof required to show a custom: "I think the old proverb that one swallow does not make a summer applies. If you can get 100 swallows, you say this must be summertime."

Later, but still during appellant's efforts on this point, the judge commented to opposing counsel,

[M]ay I remind you that it is very dangerous to win a case by excluding the other side's testimony because the Court of Appeals might say that testimony should have been admitted even though you might have won the case with the testimony in.

Appellant then attempted to offer evidence of individual apartment houses with which she was familiar. The trial judge became impatient with the swallow by swallow approach, and needled by opposing counsel's objections, disregarded his own admonition and cut short appellant's efforts in this direction. The record as to custom is thus unsatisfactory, but its deficiencies are directly chargeable to defendant's counsel and the trial judge, not appellant.

We therefore hold in this case that the applicable standard of care in providing protection for the tenant is that standard which this landlord himself was employing in October 1959 when the appellant became a resident on the premises at 1500 Massachusetts Avenue. The tenant was led to expect that she could rely upon this degree of protection. While we do not say that the precise measures for security which were then in vogue should have been kept up (e.g., the number of people at the main entrances might have been reduced if a tenant-controlled intercom-automatic latch system had been installed in the common entryways),^[22] we do hold that the same relative degree of security should have been maintained.

The appellant tenant was entitled to performance by the landlord measured by this standard of protection whether the landlord's obligation be viewed as grounded in contract or in tort. As we have pointed out, this standard of protection was implied as an obligation of the lease contract from the beginning. Likewise, on a tort basis, this standard of protection may be taken as that commonly provided in apartments of this character and type in this community, and this is a reasonable standard of care on which to judge the conduct of the landlord here.^[23]

V

Given this duty of protection, and the standard of care as defined, it is clear [487] that the appellee landlord breached its duty toward the appellant tenant here.^[24] The risk of criminal assault and robbery on any tenant was clearly predictable, a risk of which the appellee landlord had specific notice, a risk which became reality with increasing frequency, and this risk materialized on the very premises peculiarly under the control, and therefore the protection, of the landlord to the injury of the appellant tenant. The question then for the District Court becomes one of damages only. To us the liability is clear.

Having said this, it would be well to state what is not said by this decision. We do not hold that the landlord is by any means an insurer of the safety of his tenants. His duty is to take those measures of protection which are within his power and capacity to take, and which can reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants. The landlord is not expected to provide protection commonly owed by a municipal police department; but as illustrated in this case, he is obligated to protect those parts of his premises which are not usually subject to periodic patrol and inspection by the municipal police. We do not say that every multiple unit apartment house in the District of Columbia should have those same measures of protection which 1500 Massachusetts Avenue enjoyed in 1959, nor do we say that 1500 Massachusetts [488] Avenue should have precisely those same measures in effect at the present time. Alternative and more up-to-date methods may be equally or even more effective.

Granted, the discharge of this duty of protection by landlords will cause, in many instances, the expenditure of large sums for additional equipment and services, and granted, the cost will be ultimately passed on to the tenant in the form of increased rents. This prospect, in itself, however, is no deterrent to our acknowledging and giving force to the duty, since without protection the tenant already pays in losses from theft, physical assault and increased insurance premiums.

The landlord is entirely justified in passing on the cost of increased protective measures to his tenants, but the rationale of compelling the landlord to do it in the first place is that he is the only one who is in a position to take the necessary protective measures for overall protection of the premises, which he owns in whole and rents in part to individual tenants.

Reversed and remanded to the District Court for the determination of damages.

MacKINNON, Circuit Judge (dissenting):

I respectfully dissent from the panel decision that the plaintiff has proved liability as a matter of law. My inability to join in that disposition of the case is based primarily in my disagreement as to what facts were proved at the trial of that issue by the court without a jury. In my view the panel opinion errs by overstating the facts which might be construed as being favorable to appellant and by failing to recognize gross deficiencies in appellant's proof, thereby applying a more strict standard of responsibility to the landlord than the opinion actually states to be the law.

One difficulty here is that the trial court sitting without a jury held as a matter of law that there was no rule requiring the operator of the apartment building to use due care to exclude intruders by locking doors or posting doormen at entrances so as to protect tenants against crimes committed by intruders and others. It never considered whether the facts proved liability if the duty did exist. Against such a procedural background the panel opinion here comes to a different conclusion on the duty owed by the landlord to its tenants and then proceeds to find defendant liable on the facts as a matter of law. This necessarily involves a de novo consideration of the facts on a cold record and subjects the result to all the imperfections inherent in any decision arrived at under such handicaps. Here, those handicaps are magnified by the fact that the case was tried to the court without a jury and this necessarily had some tendency to steer the facts toward the issues that became uppermost in the court's mind as the case progressed and away from the issues upon which the court now reverses the trial court. The result in my view is a record that cannot support the panel decision.

The central issue here is what are the obligations incident to a landlord-tenant relationship at 1500 Massachusetts Avenue, N.W., near downtown Washington. Involved is a large building of 585 units composed of a combination of business offices and apartments on the first floor and the next level and of residential apartments above.^[1]

[489] Central to the conclusion of the panel opinion is its frequent assertion, directly and inferentially stated, that numerous "assaults and robberies" had been occurring in the hallways of the building and hence "the risk of criminal assault and robbery on a tenant in the common hallways of the building was thus entirely predictable. * * *" (Emphasis added). In support of this conclusion the opinion states that "the same risk had been occurring with increasing frequency over a period of several months immediately prior to the incident giving rise to this case. * * *" (Emphasis added) and refers to 20 police reports of alleged offenses which had occurred in the building in the first ten months of 1966. But an examination of all 20 of these reports indicates that only one of them involved an assault and robbery. The rest were chiefly thefts. So the panel opinion is incorrect in basing its conclusion on the allegation that the landlord had "notice of repeated criminal assaults and robberies."^[2] (Emphasis added.) The sole prior instance of an assault and robbery occurred on September 6, 1966 at 8:10 P.M. in front of apartment #125 involving one Leona Sullivan. It was attempted by two men who fled when another tenant came out of an adjoining apartment. It seems elementary that one solitary instance of an assault and robbery is an insufficient base to support a finding that assaults and robberies are a "predictable risk" from which the landlord would have "every reason to expect like crimes to happen again." (Emphasis added.) One swallow just does not make a summer. Assaults of this character are not predictable from clandestine thefts. It is accordingly my conclusion that the panel opinion concludes too much from too little.

Also, in my view the record is deficient on the matter of notice to the landlord of any assaults. The landlord had notice of some thefts (inaccurately sometimes referred to as robberies) but the record does not support any notice of any assault. A stipulation as to the offenses only went to the fact that they were committed in the building, not that the landlord had notice of all of them. He did admit notice of some of them but there is no proof that the landlord had notice of the assault committed in the building upon Leona Sullivan. This was the only prior assault committed on the premises. Proof of notice was central to appellant's case and the absence of proof of notice I consider to be fatal. I find no proof the appellee had actual notice of such fact. As for constructive notice, that could have been proved by showing the knowledge of some of the employees, which was not done. Clearly, knowledge of some offenses by appellant was not notice to appellee (App.54). Neither were requests for improved security.

The evidence introduced by the plaintiff is also deficient in my opinion in not proving that the alleged negligence was the proximate cause of the assault or that it contributed to it in any way. Plaintiff's evidence did not negate that it was a tenant, guest or person properly on the property who committed the offense, and while the panel opinion throughout asserts that an "intruder" committed the offense, there is no proof of that fact. So plaintiff's evidence failed to prove a nexus between the alleged deficiencies of the appellee and the cause of any damage to appellant.

The panel opinion also fails to recognize that 1500 Massachusetts Avenue is not a luxury type apartment, but instead is a combination office building and apartment building with some commerical [490] and professional offices interspersed with apartments located on the ground and second floor of the building (where subject offense occurred).^[3]

At the trial the court and counsel took frequent notice of well known factors affecting the quality of the accommodations in this and other areas of the city and of their effect on 1500 Massachusetts Avenue. It was recognized that Washington is a crime ridden city,^[4] that the area around 1500 Massachusetts Avenue in 1966 was different from areas on Connecticut and Wisconsin Avenues where "maybe the crime wave had not yet extended" (App.91) and that those "down in the center of town * * * were put on rather quick and active notice" of the crime wave. (App.92). In fact this thesis was central to appellant's case and it was so argued (App.105). All this indicated that the character of the surrounding area had been deteriorating, a fact of which the appellant was well aware as her testimony indicated she had knowledge of increasing crime in the area, that "as the years went by they were putting more and more offices into the building" and reducing the personnel services to tenants.

Obviously since a number of business offices occupied the lower floors, the fortress type security precautions the panel opinion finds to be required would be wholly out of the question because such offices require free public access. The degree of protection appellant seeks could only be afforded by the equivalent of policemen patrolling the corridors which even if it were practical for the upper apartment areas would be impractical for the floors housing business offices where this assault occurred.

The panel opinion attempts to liken the law involving this combination office-apartment building to the law relating to hotels and innkeepers,^[5] but even with respect to hotels the law recognizes that the reasonable care which an innkeeper must exercise for the safety and comfort of his guests varies with the grade and quality of the accommodation offered by the hotel.^[6] The panel cites the note in 70 A.L.R.2d 621 (1960) in support of its claim. That note revolves around a Minnesota case deciding that the operator of a beer establishment owes a duty to its patrons to exercise reasonable care to protect them from injury at the hands of an intoxicated patron on the premises. Such law has no application to the facts here. The A.L.R. note cited by the panel does make minor reference to hotels and assault and battery but the cases discussed therein give little or no support to the thesis of negligence advanced by the panel opinion. Kingen v. Weyant, 148 Cal.App.2d 656, 307 P.2d 369 (1957) is cited for the principle that an innkeeper's duty is limited to the exercise of reasonable care and he is "liable only when he was negligent in receiving or harboring guests of known violent or vicious propensities." (Emphasis added). Annot., 70 A.L.R.2d, supra at 646. Gurren v. Casperson, 147 Wash. 257, 265 P. 472 (1928) is a similar case holding that a guest in a hotel assaulted by another guest who was intoxicated, after the guest had expressly warned the landlord and requested protection from this specific person, may recover his damages from the hotel owner. Fortney v. Hotel Rancroft, 5 Ill.App.2d 327, 125 N.E.2d 544 (1955) is another case described in the note. Therein, a new trial was ordered to determine the hotel's responsibility where an intruder, found in the guest's room when he returned after being out several hours, struck the guest and caused the loss of an eye. At issue was how the intruder had gained admission [491] to the room with the key in the possession of the night clerk and without being noticed by the night clerk. These cases obviously have little or no application here.

Actually the obligation of innkeepers toward their guests is the exercise of reasonable care for their safety.^[7] The present status of the law in this respect is well stated in Coca v. Arceo, 71 N.M. 186, 376 P.2d 970, 973 (1962):

Naturally, an innkeeper is not and cannot be an insurer of a guest or patron against personal injuries inflicted by another person on the premises, other than his servants or agents. Nevertheless, the proprietor of a place of business who holds it out to the public for entry for his business purposes, is subject to liability to guests who are upon the premises and who are injured by the harmful acts of third persons if, by the exercise of reasonable care, the proprietor could have discovered that such acts were being done or about to be done, and could have protected against the injury by controlling the conduct of the other patron. 2 Restatement, Torts, § 348 (1934 ed.); Central Theatres v. Wilkinson, 1944, 154 Fla. 589, 18 So.2d 755; Hill v. Merrick, 1934, 147 Or. 244, 31 P.2d 663; 29 Am.Jur. 50, Innkeepers, § 62; Rawson v. Massachusetts Operating Co., 1952, 328 Mass. 558, 105 N. E.2d 220, 29 A.L.R.2d 907; Gartner v. Lombard Bros. (3d Cir. 1952), 197 F.2d 53.

Illustrative of the weight of authority on this duty of care is Peck v. Gerber, 1936, 154 Or. 126, 59 P.2d 675, 106 A.L.R. 996, in which the court stated:

A guest or patron of such an establishment has a right to rely on the belief that he is in an orderly house and that the operator, personally or by his delegated representative, is exercising reasonable care to the end that the doings in the house shall be orderly.

See also Gurren v. Casperson, 1928, 147 Wash. 257, 265 P. 472; Reilly v. 180 Club, Inc., 1951, 14 N.J.Super. 420, 82 A.2d 210. In addition, there are extensive annotations (106 A.L.R. 1003, and 70 A.L.R.2d 628, at 645). (Emphasis added).

The italicized portion of the quotation is indicative of the true holding of these cases with respect to innkeepers. It is that the landlord is liable if by the exercise of reasonable care he could have discovered that the offensive acts were being done or were about to be done and he could have protected against the injury by controlling the offender and failed to do so. The predictability of the offensive acts in the cited cases is much more immediate than is here present. Actually, the holding in the panel opinion extends the rule applicable to innkeepers to inordinate lengths and in my view to an unreasonable extent based as it is here upon a single assault and robbery over two months before.

Another deficiency I find in appellant's case is that she failed to prove the prevailing security standard for similar type apartments in the community at the time. This is another fatal defect in her proof. The panel opinion attempts to gloss over this deficiency by saying that it was caused by appellee's objections to the evidence and by the impatience of the judge. But the transcript indicates (App.55-62) that the proffered testimony was improper, largely hearsay, based on an insufficient foundation and that appellant's lawyer, after being helpfully advised by the court as to the proper procedure and the proper type of witnesses to prove such facts purposely waived any right to introduce such evidence when he stated, "I do not think it [the evidence of the practice in the area] is that material to the issue here, Your Honor." Also, the appellant who was her only witness on the point indicated that she only had personal knowledge of the practices at one other apartment at the time in 1966 when this assault occurred, [492] and that was obviously insufficient to prove the necessary standard prevailing in the area. The court also stated, "I will allow the question" as to the practice in the building where appellant was then residing and she so testified as to this single location; but that was obviously insufficient to prove the prevailing standard in the area. So appellant's case is deficient in this vital respect since the absence of any evidence (or proffer thereof) is not corrected by trying to blame the defendant and the court for not admitting what was obviously improper (hearsay) evidence. A negligence case must still be based on some evidence or proffer thereof.

As for the claim that appellant was led to believe she would get the same standard of protection in 1966 that was furnished in 1959, there is obviously nothing to this point. She was not led to expect that. She personally observed the changes which occurred in this respect. They were obvious to her each day of her life. And since her original lease had terminated and her tenancy in 1966 was on a month to month basis, whatever contract existed was created at the beginning of the month and since there was no evidence of any alteration in the security precautions during the current month, there is no basis for any damage claim based on contract.

The panel opinion is an excellent argument for a high degree of security in apartments and many of its contentions have considerable weight to them but in my opinion they overstate the security that can reasonably be afforded. The hysteria of apartment dwellers in an inner city plagued with crime^[8] is understandable but they are not any more exposed there than they are on the streets or in office buildings and they cannot expect the landlord to furnish the equivalent of police protection that is not available from the duly constituted government in the locality.^[9] In my opinion the decision in Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.2d 595 (1962) answers all appellant's arguments. It is just too much, absent a contractual agreement, to require or expect a combination office-apartment building such as is involved here to provide police patrol protection or its equivalent in the block-long, well-lighted passageways. Yet nothing short of that will meet the second guessing standard of protection the panel opinion practically directs. If tenants expect such protection, they can move to apartments where it is available and presumably [493] pay a higher rental, but it is a mistake in my judgment to hold an office-apartment building to such a requirement when the tenant knew for years that such protection was not being afforded.

In its overzealous attempt to assist the apartment dweller, the panel opinion is forcing a contrary result. The panel opinion calls for "protection" of the tenant by the landlord without describing the degree thereof. The stated standard is thus vague, but in the light of the facts of this case (see footnote 2 relying upon plaintiff's allegation that appellee "failed to hire sufficient number of guards"), it is an extremely high standard that borders on insuring tenants that the corridors of office-apartment buildings (and hence many apartment buildings) will not be used for the commission of criminal offenses. Owners of apartments in their own self interest will be required to view this standard, particularly in light of our jury trial practices, as being incapable of assured compliance and thus be forced to contract against such unreasonable liability (both as to character and amount) by contracting for exculpatory provisions in leases.^[10] Thus tenants will get less instead of more protection and the panel opinion by imposing an unreasonable standard in this case is not rendering any real service to reasonable landlord-tenant relations.

Finally, I find absolutely no basis for the panel to conclude on the record below that negligence has been proved as a matter of law and to order a trial on the question of damages only. If the court wanted to absolve appellant from responsibility for his failure to produce competent evidence in the trial of the case the most that it could properly do, in my opinion, would be to remand the entire case for a new trial on the new rules of law here espoused for the first time. In such a trial appellant would also be required to introduce some evidence to overcome the rule of law that a private person does not owe a duty to protect another person from a criminal attack by a third person unless such attack was both foreseeable and arose from the private person's negligent conduct.^[11]

It is my conclusion that appellant did not sustain her burden of proof that the [494] owner of the apartment building failed to exercise reasonable care and I would affirm the decision of the very distinguished and learned trial judge. Accordingly, I dissent.

[1] Miss Kline testified that she had initially moved into the building not only because of its central location, but also because she was interested in security, and had been impressed by the precautions taken at the main entrance.

[2] At trial, the allegations of paragraph 8 of the Complaint — except as they related to the question of notice to the landlord — were stipulated as true. Paragraph 8 reads as follows:

8. Plaintiff says unto the Court that prior to this assault upon your plaintiff the defendants had been on notice of a series of assaults, robberies and other criminal offenses being perpetrated upon its tenants, and yet said defendants while on notice of this dangerous condition negligently failed to hire a sufficient number of guards to impose any of the normal security requirements that in the exercise of due care they owed to plaintiff in her capacity as a tenant, when said defendants were on actual notice of complaints filed by other tenants prior to the assault on your plaintiff, said complaints occurring on the following dates and involving the following apartments:

(citing 25 individual instances).

(Emphasis added.)

During trial, when plaintiff's counsel attempted to pursue the question of the frequency of assaults or other crimes with his witness, the court cut off his examination, since it felt that the point had already been conceded. Vis, the following:

Q. Now in your talks with Miss Bloom were you aware between January of 1966 and November of 1966 when you were assaulted of any other assaults or crimes within this apartment house other than what you have already testified to about police cars being present?

A. It is hard to pin them down to the specific date but there were so many happening. My girl friend's apartment was broken into, five of them within an hour. I don't know what date that was.

Q. I am not asking for dates. I am asking were you generally aware of offenses and crimes being committed in this apartment complex between January —

The Court: You allege that in Paragraph 8 of your complaint and that was conceded. (Emphasis added.)

Mr. Ahern: I stand corrected, Your Honor.

We also note that on brief, and at oral argument, 1500 Massachusetts Avenue never challenged the assertions of the appellant regarding the frequency of assaults and other crimes being perpetrated against the tenants on their premises. With the record in this posture, we can only conclude that what was alleged and stipulated was what actually occurred.

[3] Appellant Kline testified that one could hardly fail to notice the police cars about the building after each reported crime. She further testified that in 1966, before her assault, she herself had discussed the crime situation with Miss Bloom, the landlord's agent at the premises, and had asked her "why they didn't do something about securing the building". Moreover, the record contains twenty police reports of crimes occurring in the building in the year 1966, showing that in several instances these crimes were an almost daily occurrence. Such reports in themselves constitute contructive notice to the landlord.

[4] The plaintiff testified that she had returned to her apartment after leaving work at 10:00 PM. We are in agreement with the trial court that her assailant was an intruder. See the court's comment in note 24, infra.

That such intruders did enter apartments from the hallways is substantiated by the Police reports which appear in the Record. In a number of instances doors are described as having been forced; in another instance, a tenant surprised a man standing in his front hallway; and there are still more instances of female tenants being awakened in the early morning hours to find an intruder entering their front doors. We also take notice of the fact that this apartment building is of the high rise type, with no easily accessible means of entry on the floors above the street level except by the hallways.

[5] Kendall v. Gore Properties, 98 U.S.App. D.C. 378, 236 F.2d 673 (1956).

[6] Applebaum v. Kidwell, 56 App.D.C. 311, 12 F.2d 846 (1926); Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.3d 595 (1962); but see Ramsay v. Morrissette, D.C.App., 252 A.2d 509 (1969) and Kendall v. Gore Properties, supra, note 5.

[7] 138 U.S.App.D.C. 369, 428 F.2d 1071 (1970).

[8] Id. 138 U.S.App.D.C. at 372, 428 F.2d at 1074, (emphasis added).

[9] Id. 138 U.S.App.D.C. at 373, 428 F.2d at 1075.

[10] The landlord's duty to repair was held to include the leased premises in Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 282 F.2d 943 (1960). In that case, we held that the Housing Regulations altered the old common law rule, and further, that the injured tenant had a cause of action in tort against the landlord for his failure to discharge his duty to repair the premises. Our recent decision in Kanelos v. Kettler, 132 U.S.App.D.C. 133, 406 F.2d 951 (1968), reaffirms the position taken in Whetzel.

[11] An excellent discussion of the innkeeper's duty to his guest, including citations to relevant case material, is found in: Annot., 70 A.L.R.2d 621 (1960).

[12] Gurren v. Casperon, 147 Wash. 257, 265 P. 472 (1928). See also Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 125 N.E.2d 544 (1955).

[13] McKee v. Sheraton-Russell, Inc., 268 F.2d 669 (1959) (applying New York law).

[14] Cases involving these relationships are collected and summarized in Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.3d 595 (1962).

[15] See: Central of Georgia R. Co. v. Hopkins, 18 Ga.App. 230, 89 S.E. 186 (1916); Martincich v. Guardian Cab Co., 10 N.Y.S.2d 308 (1938, City Ct. N.Y.); and Callender v. Wilson, La.App., 162 So.2d 203, writ refused 246 La. 351, 164 So.2d 352 (1964).

[16] 38 N.J. 578, 186 A.2d 291, 293, 10 A.L.R.3d 595, 601 (1962).

[17] 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73 (1947).

[18] In this regard, we observe that in some of the relationships in which a duty of protection has been found, the courts display no compunction in requiring the use of security guards or special police, where their use is reasonably necessary to see to the safety of those under the control of another, Thus, in Dilley v. Baltimore Transit Co., 183 Md. 557, 39 A.2d 469 (1944), the court said:

Carriers are not required to furnish a police force sufficient to overcome all violence of other passengers or strangers, when such violence is not to be reasonably expected; but the carrier is required to funish sufficient police force to protect its passengers from the assaults or violence of other passengers or strangers which might reasonably be expected, and to see that its police perform their duty. (Emphasis supplied.)

See also Amoruso v. New York City Transit Authority, 12 A.D.2d 11, 207 N.Y.S.2d 855 (1960); and Dean v. Hotel Greenwich Corp., 21 Misc.2d 702, 193 N.Y.S.2d 712 (1959).

[19] In Kendall v. Gore Properties, supra, note 3, this court recognized that the obligation of the landlord to his tenant includes the duty to protect him against criminal acts of third parties. The District of Columbia Court of Appeals, noting this in Ramsay v. Morrissette, supra, said of the imposition of this duty on the landlord:

Such a duty was found in Kendall v. Gore Properties, 98 U.S.App.D.C. 378, 236 F.2d 673 (1956), where the landlord's employee, alleged to be of unsound mind, strangled to death a tenant whose apartment he was painting. The negligence in Kendall, however, was the failure to make any investigation whatever of the employee before hiring him to work, without supervision, in the apartment of a young woman, living alone. The court did say that the tenant, under her lease, paid both for shelter and protection. It said further:

"We have heretofore made clear as to apartment houses, the reasons which underlie the landlord's duty under modern conditions and which, as to various hazards call for at least 'reasonable or ordinary care, which means reasonably safe conduct, but there is no sufficient reason for requiring less.' True, the landlord does not become a guarantor of the safety of his tenant. But, if he knows, or in the exercise of ordinary care ought to know, of a possibly dangerous situation and fails to take such steps as an ordinarily prudent person, in view of existing circumstances, would have exercised to avoid injury to his tenant, he may be liable. (citations omitted)"

The court also stressed that `particular conduct, depending upon circumstances, can raise an issue for the jury to decide in terms of negligence and proximate cause'. Id. at 384, 236 F.2d at 679. (Footnotes omitted)

The language that the District of Columbia Court of Appeals quoted from Kendall signals the extension of a rule theretofore applied only to injuries caused by defects or obstacles in areas under the landlord's control (see Levine v. Katz, supra), to criminal acts of third parties. By our decision today, we merely amplify and refine our reasoning in Kendall.

[20] Javins v. First National Realty Corp., supra, note 7, 138 U.S.App.D.C. 377, 428 F.2d 1079. With reference to some duties imposed by law upon the landlord for the benefit of the tenant, it may not be possible for landlords to contract out of their obligations. It has been held that a lease clause is invalid if it would insulate landlords "from the consequences of violations of their duties to the public under both the common law and the District of Columbia Building Code * * *." Tenants Council of Tiber Island — Carrolsburg Square v. DeFranceaux, 305 F. Supp. 560, 563 (D.C.D.C.1969).

[21] Kermarec v. Compagnie Generale, 358 U.S. 625, 631, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Hecht Co. v. Jacobsen, 86 U.S.App.D.C. 81, 83, 180 F.2d 13, 15 (1950).

To refer to only one factor as illustrative, we recognize that the obligations to which landlords of various types of property are held may well increase as the individual tenant's control over his own safety on the landlord's premises decreases; conversely, as the tenant's control over his own safety increases, the landlord's obligations should decrease. Possibly because of the great degree of control exercised by a carrier over a passenger, many courts have held carriers to the exercise of the greatest measure of care with respect to the safety of their passengers, and in some instances, have held carriers to have the liability of insurers. Yet when the passenger is injured at a terminal or station (where the passenger has more, and the carrier has less, control over the safety of his person), the obligations of the carrier are less. In this regard compare McPherson v. Tamiami Trail Tours, 383 F.2d 527 (5 Cir. 1967) with Neering v. Illinois Central Railway Co., 383 Ill. 366, 50 N.E.2d 497, conformed to 321 Ill.App. 625, 53 N.E.2d 271 (1943). See also Federal Insurance Company v. Colon, 392 F.2d 662, 665 (1968), where the U.S. Court of Appeals for the First Circuit, upon referring to the plaintiff's assertion that a public carrier owes its patrons the greatest measure of care, said:

[T]his applies only to passengers who are in the actual course of travel or who are boarding or alighting. The overwhelming majority rule is that it does not apply to the carrier's premises generally. * * * (citing cases)

For the imposition of more stringent obligations constituting a standard of reasonable care in the innkeeper-guest relationship, see Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 125 N.E.2d 544 (1955).

[22] See text at 478, supra.

[23] The record indicates that just prior to the poor people's campaign, the landlord caused an electric security system to be installed at the subject apartment building.

[24] In an apparent attempt to show that, regardless of the amount of care exercised, the landlord here could not possibly have prevented an assault such as that which had befallen the plaintiff, the following cross examination of Miss Kline was undertaken:

Q. Is it also correct that this apartment building also houses office apartments?

A. As the years went by they were putting more and more offices into the building, yes, sir.

Q. What type of offices would they be?

A. Well, I understood they were supposed to be professional offices because I tried to get my name listed once.

Q. Irrespective of whether you tried to get your name listed or not, did you observe the offices?

A. Yes, I worked for some of them.

Q. What type of organizations had their offices there?

A. Manufacturing representatives; there was a lawyer's office, maybe two; there were some engineers; there were some tour salesmen. That is all I can think of right now.

Q. So that there would be then in the course of a normal day clients going in and out of the lawyers' offices or customers going in and out of the other type offices, would that be correct?

A. Yes.

Q. And they would be able to walk in even if there was a doorman there?

A. Yes.

Q. And one would only speculate as to whether or not anyone could ever leave or not leave, isn't that also correct?

A. What do you mean, speculate if one could leave or not leave?

To which the trial court commented:

THE COURT: Well, we assume the general public would come into any office building or in any big apartment house.

* * * * *

THE COURT: The point is though that an intruder who commits this kind of an assault is apt to act a little different from the rest of the public although it does not always follow, you never know. Of course an intruder is not likely to come in through a public entrance either.

To this we add our own comment that it is unlikely in any case that a patron of one of the businesses, even if disposed to criminal conduct, would have waited for five hours after the usual closing time to perpetrate his crime — especially one of a violent nature. Further, although it is not essential to our decision in this case, we point out that it is not at all clear that a landlord who permits a portion of his premises to be used for business purposes and the remainder for apartments would be free from liability to a tenant injured by the criminal act of a lingering patron of one of the businesses. If the risk of such injury is foreseeable, then the landlord may be liable for failing to take reasonable measures to protect his tenant from it.

We note parenthetically that no argument regarding any change in the character of the building or its tenants was pursued on appeal.

__________

[1] At oral argument in the trial court plaintiff's attorney pointed out that the building did not have tenants exclusively but also had law offices, some business offices and establishments and the public had a right to park in the garage and that all kinds of people came into the building because they had business there. Defense counsel also made the uncontested statement at oral argument in this court that the building "was at the time she rented and is now more than just an apartment house. There are business offices throughout at least on the first floor and I believe on the level above. * * * No matter how many guards you have people will be going into or can say they are going into, business offices." Plaintiff Kline lived on the "level above" the ground floor and at one time had requested defendant's permission to have her apartment listed as a professional office. She was a qualified public stenographer. It is concluded from the foregoing that some businesses were on the same floor as appellant's apartment outside of which the assault occurred.

[2] In this particular the panel opinion ignores the actual police reports to which the stipulation referred and which speak for themselves. They were all admitted in evidence and only one reported an assault; that on Leona Sullivan.

[3] See note 1 supra.

[4] The court remarked: "I think we ought to take for granted we live in a crime ridden city and that people are attacked on the street and in hallways of apartment houses and hallways of office buildings." (App. 71.)

[5] Actually the security precautions the majority finds appellant was entitled to would exceed the security precautions available in Washington hotels.

[6] McKee v. Sheraton-Russell, Inc., 268 F. 2d 669 (2d Cir. 1959); 40 Am.Jur.2d Hotels, Motels, etc. § 82 (1968).

[7] 40 Am.Jur.2d Hotels, Motels, etc. § 82 n. 16 (1968).

[8] This court is well aware of the high level of crime in various areas of Washington. About two-thirds of our cases on appeal presently involve criminal offenses. Also the daily newspapers are full of the details of various crimes. The Washington Post of June 19, 1970, p. B 5, stated: "Asleep in rooms, 5 guests robbed in downtown hotel." The story referred to three rooms on the ninth floor of the Statler Hilton Hotel, one of the most prestigious in the city. This is five times as many robberies as had occurred at 1500 Massachusetts Avenue prior to this case. Under the panel opinion, now the Statler Hilton Hotel would practically be required to patrol the upper hotel rooms. The Post news story also reported 21 daylight robberies, 4 assaults and 8 thefts, all of which occurred before 6 P.M. This is a fairly typical day in Washington.

[9] Plaintiff's complaint here is partly based on the claim that the landlord was required to maintain a reasonable number of guards. The allegation of the complaint alleged that appellee was negligent in not "taking reasonable precautions in the evening hours of maintaining a reasonable number of guards upon the premises so as to protect your plaintiff in her person and in her property." (Emphasis added.) To require apartment landlords to employ guards to protect tenants against criminal depredations would be very costly and raise many troublesome questions. How much training should they have? Should such guards be armed? What would be their liability and that of the landlord if they killed an alleged offender in the commission of a criminal act? When duly appointed and trained city policemen are subjected to grand jury indictment for killing criminals caught in the act, the liability and exposure of an apartment house guard and his landlord to criminal and civil process under similar circumstances could be very substantial.

[10] The parties contract on substantially an equal footing and since the panel opinion stresses the contractual base for its decision, it follows that the base could be altered by contract. See 38 Am.Jur. Negligence § 8 (1941). Certainly the added protection of a private police force is not a service that goes with every apartment building in a metropolitan area. Or in the alternative, the tenants could be given an option to pay the cost of private police protection which would include salary, training, equipment, liability insurance, protection devices, office space, etc., and if they declined the option the landlord would be absolved from any liability. The option in such case serves to put the parties artificially on the same level. 38 Am.Jur. Negligence § 8 n. 5.5 (1969), citing 175 A.L.R. 17.

Tenants Council v. DeFranceaux, 305 F.Supp. 560 (D.C.D.C.1969) is not to the contrary. It dealt with an exculpatory clause for swimming pool facilities which had been represented by the landlord to be available to prospective tenants without additional charge. Under such circumstances the District Court found the requirement that tenants agree to the exculpatory clause in order to gain the use of the pool facilities to be contrary to public policy and without consideration.

[11] See 38 Am.Jur. Negligence §§ 70, 71, pp. 726-729 (1941), and 2 Restatement of Torts 2d § 448 (1965) where the rule is stated as follows:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

I fail to see that the conduct of the appellee created any temptation to third persons to commit criminal acts on the premises. What the panel talks about as risk in the building is nothing more than a reduction of the general risk that prevails in the community.

[14 Ill.App.3d 711] [303 N.E.2d 227] Medard M. Narko and James B. Sparrow, Chicago, for defendant-appellant.

Fred Lambruschi, Chicago, for plaintiff-appellee; Herbert P. Veldenz, Chicago, of counsel.

[303 N.E.2d 228] BURKE, Presiding Justice.

This is an appeal from a judgment in a personal injury action for damages suffered by the plaintiff when he attempted to stop a shoplifter who was running out of the defendant store. The case was tried before a jury, which rendered a verdict in favor of the plaintiff. The defendant appeals on the grounds that there was no breach of its duty to the plaintiff and that the introduction of prejudicial testimony and comment requires reversal.

On January 15, 1966, the plaintiff and his wife entered the defendant store in the Ford City shopping center. At a point about 20 feet inside the store, the plaintiff observed a man later identified as the floor manager, standing at the end of a straight aisle, about 75 feet from him. The manager shouted 'Stop thief' and pointed in the direction of the plaintiff. There was another man about 50 feet from the plaintiff, between him and the manager, running toward the plaintiff. The plaintiff [14 Ill.App.3d 712] pushed his wife aside and grabbed the running man. The two men fell to the floor, with the plaintiff landing on his left shoulder, underneath the other man. No one came to the assistance of the plaintiff while he struggled with the man. In the struggle some ladies' garments fell from under the man's coat. The man got up and ran out of the store. He was pursued unsuccessfully by the manager.

The plaintiff could not rise unassisted. He was helped to a back room, where he waited for an ambulance. When the plaintiff arrived at Christ Community Hospital, he was informed that he had dislocated his left shoulder and was admitted to the hospital. He was placed in a body cast in which he remained for about four weeks. Medical bills were introduced in evidence. Evidence of lost earnings was also introduced. The doctor who treated the plaintiff was deceased at the time of trial, but the plaintiff presented testimony of a medical expert as to the plaintiff's present condition.

In order to recover in an action for negligence, the plaintiff must establish that the defendant owed him a duty which was breached and that the breach was the proximate cause of injury to him. (Neering v. I.C.R.R. Co., 383 Ill. 366, 50 N.E.2d 497.) Our first inquiry is whether the defendant owed some duty of care to the plaintiff and, if so, the extent of that duty.

It is conceded that the plaintiff was a business invitee upon entering the clothing store. Thus, the defendant owed him a duty to exercise ordinary care for his safety. (Bogovich v. Schermer, 16 Ill.App.2d 197, 147 N.E.2d 711.) But his injury occurred because of his attempt to restrain the shoplifter, an activity outside the normal business invitation. The defendant contends that the plaintiff was at that point a volunteer to whom the defendant owed only the duty not to wilfully or wantonly cause him injury.

In refusing to instruct the jury on the issue of whether the plaintiff was a volunteer, the trial court determined that he was not a volunteer as a matter of law. Whether an invitee has lost that status is generally a question of fact for the jury. (Jones v. Granite City Steel Co., 104 Ill.App.2d 379, 244 N.E.2d 427.) But where all the facts and inferences therefrom lead to only one conclusion, the matter may be decided without recourse to a jury. (Johnson v. Shell Oil Co., 131 Ill.App.2d 1032, 264 N.E.2d 278.) The plaintiff's agent, the manager who called for help, testified that he had the authority to do so. Even if he did not have the express authority, this would be the kind of emergency in which such authority would be implied. (Lambert v. Senne Funeral Home, Inc., 343 Ill.App. 136, 98 N.E.2d 519.) That the call for help was an invitation to the plaintiff is also borne out by the record. [14 Ill.App.3d 713] The manager called 'Stop thief,' and his testimony indicates that this was a general call for assistance:

'Q. And did you as a matter of fact call and ask for assistance when this [303 N.E.2d 229] shoplifter started to run with the merchandise under his coat?

A. If I recall, I called out to my girls to. I think the exact words were, 'Stop thief.'

Q. Will, where were your girls?

A. Throughout the store.

Q. You mean you're telling us that you told the girls to stop the thief?

A. No, I pursued him, but he had a good head start on me. And as a means of attracting attention, I yelled, 'Stop thief,' which means that anybody, any of my girls in the vicinity--perhaps the police if they used it, just--just struck me as being the proper thing to do.'

The fact that the manager also testified that he did not see the plaintiff at the time he called is immaterial, in view of the general nature of the cry, the fact that it was admittedly a call for assistance, and the fact that to the plaintiff it appeared that the manager was speaking directly to him. The physical positions of the three, the plaintiff, the shoplifter and the manager, who was pointing in the direction of the plaintiff, justified the plaintiff's conclusion that he was requested to assist in stopping the thief. This conclusion is further buttressed by the facts that the plaintiff was physically larger than the shoplifter and that the plaintiff was the only man other than the shoplifter and the manager in the store, which had few customers at the time. Finally, the plaintiff's purpose in attempting to restrain the shoplifter was to benefit the defendant, a purpose which has been found to be sufficient to sustain invitee status. (Augsburger v. Singer, 103 Ill.App.2d 12, 242 N.E.2d 436.) The court did not err, therefore, in refusing the instructions on volunteer status.

The defendant makes much of the fact that before the incident the plaintiff had not been in the store and could not have known of the manager's position with the defendant. Hence, the defendant concludes, the plaintiff could not have believed he was undertaking to assist the defendant. The facts, however, establish the plaintiff's basis for such a belief. The incident occurred in January, with the weather such that the plaintiff and his wife wore coats. The manager wore no coat. The manager was at the rear of the store behind a counter when the plaintiff first saw him. The plaintiff would not logically assume that the manager was a customer trying on clothes (to explain his being coatless), because [14 Ill.App.3d 714] the defendant sells ladies' clothes exclusively. Even with events moving as swiftly as they did, the plaintiff could reasonably believe that the manager had authority to request help of him in stopping the fleeing man.

Having determined that the plaintiff was not a volunteer as a matter of law, we are left with the question whether the defendant breached its duty of ordinary care for the plaintiff. It has been held that there is no breach of the duty of reasonable care owed to one lawfully on premises for injuries caused by the criminal acts of third persons, where there was no knowledge of previous incidents or special circumstances which would charge the owners with knowledge of the dangers and the duty to anticipate them. (O'Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 255 N.E.2d 205.) In the case before us, the defendant had actual knowledge through its sales staff that the shoplifter who caused the injury had three days previously attempted to steal clothing from the defendant. With the knowledge of this man's prior crime, the defendant became charged with the responsibility to protect its invitees from other illegal acts by him. Neering v. Illinois Central R.R. Co., 383 Ill. 366, 50 N.E.2d 497.

Whether that obligation was met was a question for the jury in this case. Their verdict in the plaintiff's favor is supported by the record. The defendant had no security force of its own. Ford City policemen patrolled all the stores in [303 N.E.2d 230] the shopping center at intervals, less frequently than the manager wished. The defendant had no security devices on the order of mirrors or alarm systems to thwart shoplifters. Although in this appeal an attempt was made to construe the manager's shout as a warning, the manager's testimony indicates it was a request for assistance. No other attempt to warn the plaintiff is alleged. On these facts the jury could and did find the defendant negligent. As this court has said, the exposure of another to an unreasonable risk of harm is the critical element in a charge of negligence. (Boyd v. Racine Currency Exchange, Inc., 8 Ill.App.3d 140, 289 N.E.2d 218.) The evidence in this case supports the jury's finding that such a risk was present here.

The defendant's next contention is that prejudicial testimony denied him a fair trial. We find no merit in the first argument of the defendant that testimony of the plaintiff's medical expert regarding the term 'subcoracoid subluxation' was prejudicial because it was taken from a paid bill presented by the plaintiff. As the trial court found, substantially all of the expert's testimony was based on X-rays taken of the plaintiff's shoulders shortly before trial. The expert testified that the impaired condition of the plaintiff's left shoulder could have been caused by a dislocation some years earlier. The trial judge prevented any potential [14 Ill.App.3d 715] prejudice when he instructed the jury to disregard any testimony concerning the disputed term.

The second argument concerns comments made in the opening statement of plaintiff's attorney that the defendant's agents had agreed to pay the plaintiff's medical bills when the plaintiff's wife called them from the hospital. The court later ruled inadmissible any such conversation on the ground that it constitued an offer of settlement. The defendant now argues that the opening statement thus prejudiced the defendant's case, as did a later reference to the person with whom the phone conversation took place. Regardless of whether the testimony was properly excluded, we find no prejudice resulting from the comments in question. There was no testimony as to the telephone conversation on which the plaintiff apparently relied for payment from the defendant. The jury was told that the attorneys' statements were not evidence in the case, and there is no indication that the verdict was influenced by the statements challenged.

The defendant's final argument under this contention is that the plaintiff's attorney's closing argument contained prejudicial statements. In particular, the defendant refers to comments by the attorney on the plaintiff's public-spirit and virtue as the motivation for his act. This is not the kind of inflammatory and prejudicial statement which we would find merits reversal. Bruske v. Arnold, 100 Ill.App.2d 428, 241 N.E.2d 191.

The evidence presented a fact issue as to the breach of defendant's duty to the plaintiff. Applying the rule of Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, we hold that the trial court correctly submitted this issue to the jury and did not err in denying the defendant's post-trial motions.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

GOLDBERG and EGAN, JJ., concur.

[273 N.E.2d 352] Robert G. Stachler, Cincinnati, for defendant Langsam.

William Flax, Cincinnati, for plaintiff Hegel.

BETTMAN, Judge.

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

On our opinion plaintiffs completely misconstrue the [29 Ohio Misc. 148] duties and functions of a university. A university is an institution for the advancement of knowledge and learning. It is neither a nursery school, a boarding school nor a prison. No one is required to attend. Persons who meet the required qualifications and who abide by the university's rules and regulations are permitted to attend and must be presumed to have sufficient maturity to conduct their own personal affairs.

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

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

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

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

Please present entry accordingly.

Patricia M. Forsyth, Secaucus, for defendant-appellant (Waters, McPherson, McNeill, attorneys; Kenneth D. McPherson, Jr., of counsel; Ms. Forsyth and Brian D. Lieberman, on the briefs).

Marian I. Kelly, Woodbury, for plaintiffs-respondents (Hoffman, DiMuzio and Hoffman, attorneys).

The opinion of the Court was delivered by

HANDLER, J.

In this case, two young girls, ages 12 and 15, spent substantial periods of recreational time with their neighbor at his horse barn, riding and caring for his horses. Betraying the trust this relationship established, the neighbor, an older man, sexually abused both girls for a period of more than a year. Following the man's conviction and imprisonment for these sexual offenses, the girls, along with their parents, brought this action against the man and his wife for damages, contending that the wife's negligence rendered her, as well as her husband, liable for their injuries. The man conceded liability for both the intentional and negligent injuries that he inflicted on the girls by his sexual abuse. His wife, however, denied that, under the circumstances, she could be found negligent for the girls' injuries.

This case presents the issue of whether a wife who suspects or should suspect her husband of actual or prospective sexual abuse of their neighbors' children has any duty of care to prevent such abuse. And, if there is such a duty, does a breach of that duty constitute a proximate cause of the harm that results from sexual abuse.

[155 N.J. 335] I

Defendants R.T.H. and R.G.H., husband and wife (called "John" and "Mary" for purposes of this litigation), moved into a house in Vineland, New Jersey, and became next-door neighbors of plaintiffs, J.S. and M.S. and their two daughters, C.S. and M.S.

John, 64 years old, was charged with sexually assaulting the two sisters over a period of more than a year. He pled guilty to endangering the welfare of minors and was sentenced to eighteen months in state prison. Plaintiffs, as the natural parents and guardians ad litem of their two daughters, filed a complaint against John alleging intentional, reckless, and/or negligent acts of sexual assault against each of the two girls. In an [714 A.2d 927] amended complaint, plaintiffs added Mary as a defendant, alleging that she "was negligent in that she knew and/or should have known of her husband's proclivities/propensities" and that as a result of her negligence the two girls suffered physical and emotional injury.^[1]

Defendants filed a joint answer in which they denied plaintiffs' allegations. In an amended answer, Mary offered the defenses that she owed no duty to plaintiffs, that any alleged negligence on her part was not the proximate cause of any injuries or damages sustained by plaintiffs, and that any damages sustained by plaintiffs were the result of actions by a third party over whom she exercised no control. Mary also filed a crossclaim for contribution and indemnification against John, alleging that even if plaintiffs' allegations were proven, John was the primary, active, and sole culpable cause of any injuries to the plaintiffs.

Mary filed a motion for summary judgment, contending that there was no legal basis for finding her negligent. In opposition, plaintiffs submitted the certifications of the two minor plaintiffs. Plaintiffs also argued that the summary judgment motion was [155 N.J. 336] premature, in that they had not yet had the opportunity to depose John, who was still incarcerated, nor had they completed other discovery.

The trial court entered summary judgment on behalf of Mary.^[2] On appeal, the Appellate Division reversed the order and remanded for entry of an order granting plaintiffs extended discovery. 301 N.J.Super. 150, 693 A.2d 1191 (1997).

This Court granted defendant's petition for certification. 151 N.J. 464, 700 A.2d 876 (1997).

On this appeal, we assess the sufficiency of the evidence under the standard applicable to summary judgments. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 666 A.2d 146 (1995). Under that standard, the court accepts as true all the evidence and favorable legitimate inferences that support the non-moving party. Id. at 523, 666 A.2d 146.

The summary judgment record, which includes plaintiffs' certifications and Mary's deposition testimony, indicates that after defendants moved next door to plaintiffs in 1988, the two families quickly became friendly and spent a lot of time together. Defendants owned horses and a barn, and, at John's encouragement, the minor plaintiffs visited daily to ride horseback and to help care for the horses. Additionally, John would take at least the older of the two girls horseback riding on various trails in New Jersey and Pennsylvania. Usually John was the only adult in their company; Mary never joined the trio. However, during the summer of 1992, there were several occasions when Mary entered the barn, saw John with the girls, and stated to him: "Oh. Your whores are here." On several occasions that summer when the girls were on [155 N.J. 337] the property riding horses, Mary yelled to them from one of the windows of the house: "You bitches." Nevertheless, Mary never "confronted" her husband about the time he was spending alone with either or both of the girls.

The sexual assaults occurred over a period of a year, from 1991 until John's arrest in November 1992. Additional evidence indicates that for at least some period in 1992, Mary lived outside of the marital home. It was not until November 1992, when her son informed her of John's arrest, that Mary first learned that her husband had had any sexual contact with the girls. Mary was shocked by the news; she had believed her husband and the girls were just friends who spent time together because of the horses. She saw [714 A.2d 928] John the next day, following his release from prison. He told her that the police, acting on information received in a phone call, had caught him behind the house with the two girls. Both at the trial level and on appeal, however, Mary conceded for the purposes of argument that "at all relevant times" she "knew or should have known of her husband's proclivities/propensities."

II

A.

In determining whether a duty is to be imposed, courts must engage in a rather complex analysis that weighs and balances several, related factors, including the nature of the underlying risk of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interests of, and the relationships between or among, the parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993).

Foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists. See Williamson v. Waldman, 150 N.J. 232, 239, 696 A.2d 14 (1997). [155 N.J. 338] The "[a]bility to foresee injury to a potential plaintiff" is "crucial" in determining whether a duty should be imposed. Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194, 638 A.2d 1288 (1994).

Foreseeability as a component of a duty to exercise due care is based on the defendant's knowledge of the risk of injury and is susceptible to objective analysis. Weinberg v. Dinger, 106 N.J. 469, 484-85, 524 A.2d 366 (1987). That knowledge may be an actual awareness of risk. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 576-77, 675 A.2d 209 (1996). Such knowledge may also be constructive; the defendant may be charged with knowledge if she is "in a position" to "discover the risk of harm." Id. at 578, 675 A.2d 209. In some cases where the nature of the risk or the extent of harm is difficult to ascertain, foreseeability may require that the defendant have a "special reason to know" that a "particular plaintiff" or "identifiable class of plaintiffs" would likely suffer a "particular type" of injury. See People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 262, 263, 495 A.2d 107 (1985). Further, when the risk of harm is that posed by third persons, a plaintiff may be required to prove that defendant was in a position to "know or have reason to know, from past experience, that there [was] a likelihood of conduct on the part of [a] third person[ ]" that was "likely to endanger the safety" of another. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 507, 694 A.2d 1017 (1997) (internal quotation and citation omitted).

"[T]he question whether there is a 'duty' merely begs the more fundamental question whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." Weinberg, supra, 106 N.J. at 481, 524 A.2d 366 (internal quotation and citation omitted). The imposition of a duty thus requires an evaluation and a balancing of the conflicting interests of the respective parties. Portee v. Jaffee, 84 N.J. 88, 101, 417 A.2d 521 (1980). That assessment necessarily includes an examination of the relationships between and among the parties. Also implicated [155 N.J. 339] in this analysis is an assessment of the defendant's "responsibility for conditions creating the risk of harm" and an analysis of whether the defendant had sufficient control, opportunity, and ability to have avoided the risk of harm. Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510, 515, 688 A.2d 1018 (1997); Carvalho, supra, 143 N.J. at 573, 675 A.2d 209.

Ultimately, the determination of the existence of a duty is a question of fairness and public policy. Clohesy, supra, 149 N.J. at 502, 694 A.2d 1017. In fixing the limits of liability as a matter of public policy, courts must draw on "notions of fairness, common sense, and morality." Hopkins, supra, 132 N.J. at 443, 625 A.2d 1110. Public policy must be determined in the context of contemporary circumstances and considerations. See, e.g., Kelly v. Gwinnell, 96 N.J. 538, 544-45, 476 A.2d 1219 (1984) (noting that in a society growing increasingly intolerant of [714 A.2d 929] drunken driving, the imposition of a duty on social hosts "seems both fair and fully in accord with the State's policy"). Thus, " '[d]uty' is not a rigid formalism" that remains static through time, but rather is a malleable concept that "must of necessity adjust to the changing social relations and exigencies and man's relation to his fellows." Wytupeck v. Camden, 25 N.J. 450, 462, 136 A.2d 887 (1957).

The Court, in its determination whether to impose a duty, must also consider the scope or boundaries of that duty. See Kelly, supra, 96 N.J. at 552, 476 A.2d 1219 (observing that determination of the scope of duty in negligence cases "has traditionally been a function of the judiciary"). The scope of a duty is determined under "the totality of the circumstances," Clohesy, supra, 149 N.J. at 514, 694 A.2d 1017, and must be "reasonable" under those circumstances, id. at 520, 694 A.2d 1017. Factors to be taken into consideration include the risk of harm involved and the practicality of preventing it. Id. at 529-20, 694 A.2d 1017; see also Hopkins, supra, 132 N.J. at 447, 625 A.2d 1110 (noting that "[n]egligence has often been defined as the failure to take precautions that cost less than the damage wrought" by the harm). When the defendant's actions are "relatively [155 N.J. 340] easily corrected" and the harm sought to be prevented is "serious," it is fair to impose a duty. Kelly, supra, 96 N.J. at 549-50, 476 A.2d 1219. In the final analysis, the "reasonableness of action" that constitutes such a duty is "an essentially objective determination to be made on the basis of the material facts" of each case. Weinberg, supra, 106 N.J. at 484, 524 A.2d 366.

B.

Here, a man criminally sexually assaulted unrelated, adolescent children whom he had befriended. The defendant is the spouse of the wrongdoer. The abuse occurred on her own property over an extended period of time. The tortious, assaultive conduct is of a type that is extremely difficult to identify, anticipate, and predict. While these considerations bear on all of the factors that are relevant in determining whether a duty of care should be recognized and imposed on the spouse, they bear materially on the primary element of foreseeability.

Although conduct involving sexual abuse is often secretive, clandestine, and furtive, a number of factors are relevant when determining whether or not it is foreseeable to a wife that her husband would sexually abuse a child. These include whether the husband had previously committed sexual offenses against children; the number, date, and nature of those prior offenses; the gender of prior victims; the age of prior victims; where the prior offenses occurred; whether the prior offense was against a stranger or a victim known to the husband; the husband's therapeutic history and regimen; the extent to which the wife encouraged or facilitated her husband's unsupervised contact with the current victim; the presence of physical evidence such as pornographic materials depicting children and the unexplained appearance of children's apparel in the marital home; and the extent to which the victims made inappropriate sexual comments or engaged in age-inappropriate behavior in the husband and wife's presence. See, e.g., Pamela L. v. Farmer, 112 Cal.App.3d 206, 169 Cal.Rptr. 282 (1980) (finding that foreseeability of harm is great where the [155 N.J. 341] sexual assault occurred in the marital home, the child victims were expressly invited into the home by the wife, the wife knew that the husband had molested children in the past, and the wife left the children in the unsupervised presence of her husband); Doe v. Franklin, 930 S.W.2d 921 (Tex.Ct.App.1996) (ruling that foreseeability requirement is met where wife had knowledge that her husband was a pedophile, wife invited child victim into home, child tried to tell the wife of the molestation, and wife left child in the unsupervised presence of the husband); T.A. v. Allen, 447 Pa.Super. 302, 669 A.2d 360, 372 (1995) (Ford Elliot, J., dissenting) (stating that wife owed duty to children where she allowed them to enter into the marital home where she knew that the husband kept a studio devoted to sexual experiments on children), appeal denied, 544 Pa. 661, 676 A.2d 1201 (1996); see also In re Registrant G.B., 147 N.J. 62, 70-71, 685 A.2d 1252 (1996) (listing factors that the Legislature has identified as [714 A.2d 930] indicative of the likelihood of a pedophile's re-offense); In re Registrant C.A., 146 N.J. 71, 81-83, 679 A.2d 1153 (1996) (same); Doe v. Poritz, 142 N.J. 1, 15, 662 A.2d 367 (1995) (noting that there is a 10-29% recidivism rate for offenders who sexually assault little girls and a 13-40% recidivism rate for offenders who sexually assault little boys).

Moreover, there is some empirical support for the conclusion that sexual abuse of a child, while extremely difficult to detect or anticipate, is a risk that can be foreseen by a spouse. This evidence indicates that an extremely high percentage of child sexual molesters are men, many of whom are married. U.S. Dept. of Justice, Bureau of Justice Statistics, Child Victimizers: Violent Offenders and Their Victims 5 (March 1996). The vast majority of child victims are female and many child victims fall prey to an immediate relative or a family acquaintance; most of these sexual assaults are committed either in the offender's home or the victim's home. Id. at 10-12. Given those factors, the wife of a sexual abuser of children is in a unique position to observe firsthand telltale signs of sexual abuse. A wife may well be the only person with the kind of knowledge or opportunity to know that a particular person or particular class of persons is being [155 N.J. 342] sexually abused or is likely to be abused by her husband. Cf. Franklin, supra, 930 S.W.2d at 928 (concluding that once wife assumed the task of caring for her child and inviting the child into her home, the wife had a duty not to leave the child alone with her pedophiliac husband); Chaney v. Superior Ct., 39 Cal.App.4th 152, 46 Cal.Rptr.2d 73 (1995) (indicating that where a child is sexually assaulted in marital home by husband, wife has a duty of reasonable care if husband's behavior was "reasonably foreseeable").

These considerations warrant a standard of foreseeability in this case that is based on "particular knowledge" or "special reason to know" that a "[p]articular plaintiff" or "identifiable class of plaintiffs" would suffer a "particular type" of injury. See People Express, supra, 100 N.J. at 260, 262, 263, 495 A.2d 107; see also Clohesy, supra, 149 N.J. at 513, 694 A.2d 1017 (holding that liability can be imposed on supermarket for failing to provide security in its parking lot as long as "specificity and strictness [ ] are infused into the definitional standard of foreseeability") (internal quotation and citation omitted); Dunphy v. Gregor, 136 N.J. 99, 109, 642 A.2d 372 (1994) (determining that it was appropriate to allow unmarried cohabitant to recover against defendant motorist under theory of bystander liability because she represented "an eminently foreseeable but clearly discrete class of potential plaintiffs"); Hopkins, supra, 132 N.J. at 451-52, 625 A.2d 1110 (Clifford, J., concurring) (finding it appropriate to impose liability on real estate brokers for injury sustained during open-house as long as the duty to warn and inspect arises only in "severely circumscribed" circumstances that extends only to a "limited class" of plaintiffs); Tarasoff v. Regents of the Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 340 (1976) (imposing a duty of reasonable care under the circumstances when defendant has a basis for determining that a readily identifiable victim is likely to be harmed by the actions of a third person). "Particularized foreseeability" in this kind of case will conform the standard of foreseeability to the empirical evidence and common experience that indicate a wife may often have actual knowledge or special reason to know that her husband is abusing or is likely to abuse an [155 N.J. 343] identifiable victim and will accommodate the concerns over the inherent difficulties in predicting such furtive behavior. That test of foreseeability will also ensure that the wife is not subject to a broad duty that may expose her to liability to every child whom her husband may threaten and harm. Foreseeability under that definitional standard is neither unrealistic nor unfair.

The nature of the parties' interests bears on the need to recognize a duty of care. "There can be no doubt about the strong policy of this State to protect children from sexual abuse and to require reporting of suspected child abuse." 301 N.J.Super. at 156, 693 A.2d 1191. That policy is so obvious and so powerful that it can draw little argument. It is an interest that is massively documented.

The Legislature has dealt comprehensively with the subject of child abuse and has enacted [714 A.2d 931] a plethora of statutes designed to prevent the sexual abuse of children. For example, N.J.S.A. 9:6-8.10 requires any person having reasonable cause to believe that a child has been subject to abuse to report the abuse immediately to the Division of Youth and Family Services. The duty to report is not limited to professionals, such as doctors, psychologists, and teachers, but is required of every citizen. State v. Hill, 232 N.J.Super. 353, 356, 556 A.2d 1325 (Law Div.1989). Indeed, friends or neighbors are often in the best position to fulfill this statutory duty because they are the people "who frequently hear or observe acts of child abuse." Id. at 357, 556 A.2d 1325. The purpose of the sexual abuse reporting statute is

to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.

[N.J.S.A. 9:6-8.8.]

It is a disorderly persons offense to fail to report an act of child abuse reasonably believed to have been committed. N.J.S.A. 9:6-8.14. See F.A. v. W.J.F., 280 N.J.Super. 570, 576, 656 A.2d 43 (App.Div.1995) (noting that any person "who knowingly fails to [155 N.J. 344] report an act of child abuse 'having reasonable cause to believe an act of child abuse has been committed, is a disorderly person' ") (quoting N.J.S.A. 9:6-8.14). Another statute, N.J.S.A. 2A:61B-1a(1), declares that a person who stands in loco parentis to a child and knowingly permits or acquiesces in sexual abuse of the child by another person in the household is also guilty of sexual abuse. Further evidence of the State's continuing concern for children at risk from abuse is N.J.S.A. 9:6-8.75, which establishes the New Jersey Task Force on Child Abuse and Neglect.^[3]

"Megan's Law," N.J.S.A. 2C:7-1 to -11, provides yet more evidence of the State's intolerance of sexual abuse of children. In affirming the constitutionality of the community notification and [155 N.J. 345] registration requirements of Megan's Law for convicted sex offenders, this Court recognized the enormous public interest in protecting society from the threat of potential molestation, rape, or murder of women and children. See Poritz, supra, 142 N.J. at 13, 662 A.2d 367.

While the interest in protecting children from sexual abuse is great, this Court must also take into consideration defendants' interests in a stable marital relationship and in marital privacy. See State v. Szemple, 135 N.J. 406, 414, 640 A.2d 817 (1994). That interest traditionally found expression in the common-law doctrine of interspousal immunity wherein one spouse could not sue or be [714 A.2d 932] sued by another, see generally Kennedy v. Camp, 14 N.J. 390, 396, 102 A.2d 595 (1954); 1 Blackstone Commentaries 442; Prosser, Torts § 122 at 860-64 (4th ed.1971), and the testimonial disqualification wherein one spouse was not permitted to testify for or against the other, see generally Szemple, supra, 135 N.J. at 414, 640 A.2d 817; 1 Coke, A Commentarie upon Littleton 6b (9th ed. 1832); 8 Wigmore on Evidence § 2227 (McNaughton rev.1961). Both courts and scholars, however, increasingly questioned whether the doctrine of marital immunity actually succeeded in promoting the marital tranquility and privacy it was designed to serve. See, e.g., Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978) (abrogating interspousal immunity; also observing that it is hard to "monitor marital morality" and stating: "The threat to domestic harmony posed by a legal action between spouses is an imponderable; the cohesiveness of a marriage may be jeopardized as much by barring a cause of action as by allowing it."). The testimonial disqualification has also been criticized. See 8 Wigmore, supra, § 2228 at 221 (terming the spousal testimonial privilege "the merest anachronism in legal theory and an indefensible obstruction to truth in practice"); 63 American Bar Ass'n Reports 594-95 (1938) (calling for the abolition of the spousal testimonial privilege); Trammel v. United States, 445 U.S. 40, 52, 100 S.Ct. 906, 913, 63 L. Ed.2d 186, 196 (1980) (holding that the rule permitting an accused to bar all adverse spousal testimony cannot stand because the "ancient foundations for so sweeping a privilege have [155 N.J. 346] long since disappeared"; and observing that "[w]hen one spouse is willing to testify against the other in a criminal proceeding--whatever the motivation--their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve").

Moreover, the societal interest in enhancing marital relationships cannot outweigh the societal interest in protecting children from sexual abuse. The child-abuse reporting statute itself has mandated that balance--it applies to every citizen, including a spouse. Supra at 343, 714 A.2d at 931. As the Appellate Division here described, "the Legislature's adoption of that statute [i.e., "Megan's Law"] is an expression of New Jersey's strong public policy favoring protection of children over the privacy of an offending adult." 301 N.J.Super. at 157, 693 A.2d 1191. Thus, "[t]he protective privilege ends where the public peril begins." Tarasoff, supra, 131 Cal.Rptr. 14, 551 P.2d at 347; cf. State v. P.Z., 152 N.J. 86, 112, 703 A.2d 901 (1997) (refusing to extend a parent's right to counsel or right to Miranda warnings under the state and federal constitutions to Title Nine investigations by DYFS workers because that "would shift the primary focus of Title Nine from the right of children to be protected from abuse and neglect to the rights of parents to the custody of their children. Those rights are not in equipoise."). The Appellate Division here also overruled the holding contained in Rozycki v. Peley, 199 N.J.Super. 571, 579, 489 A.2d 1272 (Law Div.1984) to the extent that it "places a higher priority upon preserving the defendants' marital relationship than upon protecting children from abuse." 301 N.J.Super. at 157, 693 A.2d 1191. Thus, while the marital relationship is a genuine concern in this case, it is by no means dispositive.

Considerations of fairness and public policy also govern whether the imposition of a duty is warranted. Carvalho, supra, 143 N.J. at 573, 675 A.2d 209. Public policy considerations based in large measure on the comparative interests of the parties support overwhelmingly the recognition of a duty of care in these circumstances. [155 N.J. 347] This Court has recognized that the sexual abuse of children not only traumatizes the victims, but also exacts a heavy toll on society:

Recent research indicates that a number of psychosocial problems--including chronic depression and anxiety, isolation and poor social adjustment, substance abuse, suicidal behavior, and involvement in physically or sexually abusive relationships as either aggressor or victim--are more common among adults molested as children than among those with no such childhood experiences. Victims of sexual abuse can suffer an impaired ability to critically evaluate the motives and behavior of others, making them more vulnerable to revictimization. [714 A.2d 933] An especially disturbing finding about child sexual abuse is its strong intergenerational pattern; in particular, due to the psychological impact of their own abuse, sexually abused boys have been found to be more likely than non-abused boys to turn into offenders against the next generation of children, and sexually abused girls are more likely to become mothers of children who are abused. And studies show that adult male aggressive behavior, particularly sexual aggression, is associated with the trauma of childhood sexual abuse. Thus, apart from the substantial personal trauma caused to the victims of such crimes, sexual crimes against children exact heavy social costs as well.

[Poritz, supra, 142 N.J. at 16, 662 A.2d 367 (internal quotation and citation omitted).]

In defining the appropriate standard of care, we are enjoined again to consider the comprehensive legislative treatment of the issue of sexual abuse of children. While the efforts of the Legislature to combat sexual abuse of children are considerable, evidence and experience indicate that they may not be sufficient to stem the tide. This is because ninety-five to ninety-eight percent of child sexual abuse "is hidden behind closed doors" and occurs "in the home or within the circle of immediate friends and family." Hearing Before the Senate Institutions, Health and Welfare Committee on Child Abuse and Sexual Abuse of Children in Day and Residential Children's Facilities 39 (Oct. 3, 1984) (statement of Betty Wilson, President of the Center for Non-Profit Corporations). Moreover, "80% of substantiated perpetrators of child sexual abuse have no prior criminal records," id. at 11, 662 A.2d 367 (statement of George Albanese, Commissioner of the New Jersey Department of Human Services), and thus would fall outside of current registration and community notification requirements. Thus, we can confidently conclude that civil remedies will [155 N.J. 348] complement statutory protections and further the legislative efforts to enhance the protection of children.

It is obvious that the Legislature, in providing sweeping statutory protections designed to protect children and to curb child abuse, did not intend to foreclose civil remedies. We note that

[w]hen a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

[Restatement (Second) of Torts, § 874A.]

Not only may a violation of a statute "generate a civil remedy even where no such remedy is included in the act," but the "violation of some statutes may even be negligence." Parks v. Pep Boys, 282 N.J.Super. 1, 14-15, 659 A.2d 471 (App.Div.1995). When a statute specifically incorporates a standard of care, "a jury finding of a statutory violation constitutes a finding of negligence." Eaton v. Eaton, 119 N.J. 628, 642-43, 575 A.2d 858 (1990); see also Jones v. Bennett, 306 N.J.Super. 476, 484, 703 A.2d 1008 (App.Div.1998) (noting that normally "violation of a motor vehicle statute is evidence of negligence," but where "a motor vehicle statute codifies the common law standard, the violation of the statute is not evidence of negligence, it is negligence") (internal quotation and citation omitted). When a statute, however, merely proscribes conduct and adopts a standard without intending specifically to incorporate the non-statutory or common-law standard, violation of that statute may constitute only evidence of negligence. See Smith v. Young, 300 N.J.Super. 82, 95, 692 A.2d 76 (App.Div.1997) (noting "venerable rule of law that permits an injured plaintiff to use violation of a legislatively established standard as evidence of negligence for the consideration of the jury, as long as the plaintiff was one of a class for whose benefit the statute was enacted") (internal quotations and citations omitted).

[155 N.J. 349] In this case, there is no doubt that the minor children were members of the class that N.J.S.A. 9:6-8.10 was meant to protect and that they suffered precisely the [714 A.2d 934] type of harm from which the statute was intended to protect them. Further, there is no doubt that a wife can be a person who is subject to the obligation imposed by the statute. See Hill, supra, 232 N.J.Super. at 356, 556 A.2d 1325. If Mary herself had discovered the sexual abuse of the children, or even had "reasonable cause to believe" that they had been sexually abused, she would have been lawfully compelled to report that occurrence. See N.J.S.A. 9:6-8.10. Further, the child-abuse reporting statute provides a standard of care in that it requires anyone who has "reasonable cause to believe" that a child is being sexually abused to report the abuse to DYFS. This statutory standard, however, does not purport to incorporate or codify any common-law standard. Moreover, the statute does not expressly attempt to resolve for purposes of civil liability the comparative interests of the parties, and the Court must heed not only the public policy of protecting children, but also that of promoting stability in marriage. Accordingly, we do not conclude that the Legislature intended that the child-abuse reporting statute constitute an independent basis for civil liability or that its violation constitute negligence per se. Nevertheless, because the protections provided, the evils addressed, and the obligations imposed by the reporting statute parallel those that would be relevant in recognizing the existence of a duty as a basis for a civil remedy, we determine that a violation of the statute may constitute evidence of negligence in circumstances such as those presented in this case.

Considerations of fairness implicate the scope as well as the existence of a duty. In defining the duty to be imposed, the court must weigh the ability and opportunity of the defendant to exercise reasonable care. See, e.g., Kuzmicz, supra, 147 N.J. at 515, 688 A.2d 1018; Carvalho, supra, 143 N.J. at 573, 675 A.2d 209. Defendant contends that the imposition of a duty to prevent her husband from engaging in sexual abuse of another person

[155 N.J. 350] would be unfair. She argues that sexual offenses are extremely difficult to combat and that she did not necessarily have the power, the ability, or the opportunity to control her husband and should not be expected or required to police his conduct continuously. However, fairness concerns in these circumstances can be accommodated by a flexible duty of care that requires a spouse, when there is particularized foreseeability of harm of sexual abuse to a child, to take reasonable steps to prevent or warn of the harm. See Franklin, supra, 930 S.W.2d at 928-29 (holding that "a duty exists to not place a child in a situation in which the risk of sexual abuse is heightened and in which the risk is foreseeable" and that therefore a wife who "knew or should have known of her husband's proclivities, [ ] should have taken steps to ensure that [the grandchild] would not be placed in harm's way or to otherwise ensure that her husband would not be in a position to act on his temptations"); Phillips v. Deihm, 213 Mich.App. 389, 541 N.W.2d 566 (1995) (finding that victim of sexual abuse had cause of action against pedophile's wife who was allegedly aware of, but failed to prevent, the abuse that occurred in the marital home and pickup truck); Pamela L., supra, 169 Cal.Rptr. 282 (finding that children who suffered sexual abuse stated valid cause of action against pedophile's wife, where the complaint alleged that the wife knew her husband had molested children in the past, she encouraged and invited the children to be alone with her husband in the family pool when she was at work, and she unreasonably exposed the children to harm); Chaney, supra, 46 Cal.Rptr.2d at 76 (noting that "public policy requires that where a child is sexually assaulted in the defendant wife's home by her husband, the wife's duty of reasonable care to the injured child depends on whether the husband's behavior was reasonably foreseeable"); see also T.A. v. Allen, supra, 669 A.2d at 364-65 (Olszewski, J., dissenting) (arguing that where step-grandmother knew or had reason to know of her husband's pedophilia, she had a duty to warn the children of the danger posed by their grandfather); id. at 372 (Ford Elliott, J., dissenting) (arguing that wife in those circumstances had duty to protect the children from a known child abuser, not simply to [155 N.J. 351] warn them of the danger); cf. Arvanitis v. Hios, 307 N.J.Super. 577, 705 A.2d 355 (App.Div.1998) (citing Appellate Division decision in this case and holding that layperson, a wife, owes [714 A.2d 935] duty of reasonable care under the circumstances to her nephew who was injured while assisting her in convincing her husband, whom she knew to have violent tendencies, to take his medication); Tarasoff, supra, 131 Cal.Rptr. 14, 551 P.2d at 340 (imposing duty of reasonable care when defendant knew that a third person posed a risk of harm to the victim). C.

Considerations of foreseeability, the comparative interests and relationships of the parties, and public policy and fairness support the recognition of a duty of care. Based in large measure on the strong public policy of protecting children from sexual abuse, we conclude that there is a sound, indeed, compelling basis for the imposition of a duty on a wife whose husband poses the threat of sexually victimizing young children.

Closely-related to the recognition of a duty, however, is the issue of proximate causation, which must also be considered in determining whether any liability may be allowed for the breach of such a duty. Proximate causation is "that combination of 'logic, common sense, justice, policy and precedent' that fixes a point in the chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery." People Express, supra, 100 N.J. at 264, 495 A.2d 107 (quoting Powers v. Standard Oil Co., 98 N.J.L. 730, 734, 119 A. 273 (Sup.Ct.), aff'd o.b., 98 N.J.L. 893, 121 A. 926 (E. & A.1923)); accord Prosser, Torts § 41 at 236-37 (3rd ed. 1964) ("As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.").

Ordinarily, issues of proximate cause are jury questions. See Martin v. Bengue, Inc., 25 N.J. 359, 374, 136 A.2d 626 (1957). [155 N.J. 352] However, our courts have, as a matter of law, rejected the imposition of liability for highly extraordinary consequences. See, e.g., Caputzal v. The Lindsay Co., 48 N.J. 69, 77-80, 222 A.2d 513 (1966) (holding that even if defect in water softener caused rusty discoloration of water, manufacturer was not liable to plaintiff who sustained idiosyncratic and highly extraordinary heart attack brought on by fright at sight of discolored water); Glaser v. Hackensack Water Co., 49 N.J.Super. 591, 597, 141 A.2d 117 (App.Div.1958) (holding that water company whose employee entered plaintiff's garage without notice to read meter was not liable to plaintiff who became frightened for safety of infant daughter and injured herself while running downstairs); see also Restatement, supra, § 435(2) ("The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.").

It does not seem highly extraordinary that a wife's failure to prevent or warn of her husband's sexual abuse or his propensity for sexual abuse would result in the occurrence or the continuation of such abuse. The harm from the wife's breach of duty is both direct and predictable. There is little question, here, that the physical and emotional injuries allegedly suffered by the girls are hardly an extraordinary result of John's acts of molestation and that their victimization is not an extraordinary consequence of Mary's own negligence. Mary's negligence could be found to be a proximate cause of plaintiffs' injuries. See Hill v. Yaskin, 75 N.J. 139, 147, 380 A.2d 1107 (1977).

Accordingly, we hold that when a spouse has actual knowledge or special reason to know of the likelihood of his or her spouse engaging in sexually abusive behavior against a particular person or persons, a spouse has a duty of care to take reasonable steps to prevent or warn of the harm. Further, we hold that a breach of such a duty constitutes a proximate cause of the resultant injury, the sexual abuse of the victim.

[155 N.J. 353] III

In determining how the standards for duty, negligence, and proximate cause should be applied in this case, we view the facts in the light most favorable to plaintiffs. See Brill, supra, 142 N.J. at 523, 666 A.2d 146.

It may be found that the relationship between the next-door neighbors' in this case [714 A.2d 936] had been close. Mary knew that the neighbors' adolescent girls were visiting at her home nearly every day and that they spent considerable amounts of time there alone with her husband. Moreover, she never "confronted" her husband about the unsupervised time he was spending with the girls. At both the trial level and on appeal, Mary conceded for the purposes of argument that "at all relevant times" she "knew or should have known of her husband's proclivities/propensities." Thus, it may be determined that it was particularly foreseeable that John was abusing the young girls. Further, the evidence at trial could support a finding of negligence on Mary's part. It is inferable, as explained by the Appellate Division, that Mary could have discharged her duty by confronting her husband and warning him, by insisting or seeing that the girls were not invited to ride or care for the horses, by keeping a watchful eye when she knew the girls to be visiting with her husband, by asking the girls' parents to ensure that the children not visit when she was not present, or by warning the girls or their parents of the risk she perceived. See 301 N.J.Super. at 157, 693 A.2d 1191. Finally, the evidence may be found sufficient to support the determination that the harm suffered by the girls was not a highly extraordinary result of the breach of that duty.

We also conclude that summary judgment in this matter was premature. Summary judgment was entered only five months after Mary's answer was filed and only two months after her amended answer. Id. at 154 n. 2, 693 A.2d 1191. The Appellate Division ruled that plaintiffs should have been given the opportunity to depose John and others to try to discover further evidence bearing on Mary's knowledge of John's conduct or sexual [155 N.J. 354] proclivities. See id. at 157-58, 693 A.2d 1191. We concur. If the motion for summary judgment is renewed, the trial court may consider whether a reasonable jury could find that, under the totality of the circumstances based on the standards set forth herein, Mary knew or should have known of the abuse and could have taken reasonable actions to have prevented such abuse.

IV

We affirm the judgment of the Appellate Division.

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

Opposed--None.

[1] The Appellate Division opinion suggests that plaintiffs' amended complaint additionally alleged "that Mary was aware of her husband's history of pedophilia as well as his conduct involving these children." 301 N.J.Super. at 153, 693 A.2d 1191. No such allegation appears in the amended complaint.

[2] Following summary judgment for Mary, plaintiffs continued their suit against John, and a judgment was entered against John and in favor of the two minor plaintiffs, awarding each $100,000 in compensatory damages, $25,000 in punitive damages, and $12,439.72 in prejudgment interest. However, plaintiffs contend that their prospects of any recovery on their judgment against John are speculative at best given that John and Mary have declared bankruptcy and that John's intentional conduct was not covered by defendants' homeowners' policy.

[3] Other statutes deal extensively and comprehensively with the subject of protecting children from sexual abuse. See, e.g., N.J.S.A. 2C:14-4b(1) (making lewdness a crime of the fourth degree if the actor knows or reasonably expects that he is likely to be observed by a child under 13); N.J.S.A. 2C:24-4 (making it a crime for a person who has a legal duty to care for a child to engage in sexual conduct that would impair or debauch the morals of the child); N.J.S.A. 2C:34-1b(7) (making it a crime to engage in prostitution with a person under 18); N.J.S.A. 2C:43-6.4a (making it permissible for a person convicted of sexual assault of a child or endangering the welfare of a child to receive a special sentence of community supervision for life); N.J.S.A. 2C:52-2b (noting that records of conviction for endangering the welfare of a child by engaging in sexual conduct are not subject to expungement); N.J.S.A. 9:6A-3 (authorizing the Child Life Protection Commission to approve grant applications from organizations that encourage the development of community programs that offer sexual abuse prevention training for children); N.J.S.A. 18A:6-7.1 (mandating that any facility under the supervision of the Department of Education shall not hire an individual whose criminal history check reveals a record of conviction for child molestation or sexual offense); N.J.S.A. 18A:35-4.5 (authorizing local boards of education to establish a sexual assault prevention education program); N.J.S.A. 30:4-123.53a (mandating that the Department of Corrections provide written notification to county prosecutors of the anticipated release from incarceration of a person convicted of the sexual assault of a child); N.J.S.A. 30:4-123.54b(1)(b) (mandating that a report containing a psychological evaluation be prepared for every person who is convicted of sexual assault or endangering the welfare of a child and be filed with the parole board); N.J.S.A. 30:8-44.1a (mandating that inmates convicted of a crime involving sexual offense or child molestation be excluded from work release and vocational training release programs).

[892 F.2d 731] Leah J. Fjerstad, Rapid City, S.D., for appellant.

Mark F. Marshall, Rapid City, S.D., for appellee.

Before LAY, Chief Judge, and McMILLIAN and WOLLMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Fred Brosnahan appeals from an order entered in the District Court for the District of South Dakota granting a judgment notwithstanding the verdict in favor of Western Air Lines, Inc. Brosnahan brought suit against Western Air Lines for injuries he sustained while a passenger on board a Western Air Lines flight from Las Vegas, Nevada to Rapid City, South Dakota. Brosnahan was injured when a fellow passenger dropped his carry-on bag on Brosnahan's head while attempting to stow the bag in the overhead compartment above Brosnahan's seat. Brosnahan alleged that his injuries were caused by the airline's negligent supervision of the boarding process and its failure to assist passengers with carry-on luggage. After a trial on the merits, the jury returned a verdict for Fred Brosnahan in the amount of $74,600. Western Air Lines moved for a judgment notwithstanding the verdict, and the district court granted the motion. The district court let stand the jury's findings of negligence and damages, but held that Brosnahan had produced no evidence to support the jury's finding that the airline's negligence had proximately caused his injuries. For reversal, Brosnahan argues that the district court erroneously held, as a matter of South Dakota law, that the airline's negligence was not the proximate cause of his injuries. We agree, and accordingly reverse the judgment notwithstanding the verdict and remand with instructions to reinstate the jury verdict in favor of Fred Brosnahan.

I.

Facts

On March 20, 1986, Fred Brosnahan and his friend Marilyn Maltaverne boarded a Western Air Lines 727 aircraft, and located their seats in Row 16 of the coach cabin. [892 F.2d 732] The coach cabin of the aircraft seats approximately 132 passengers, and the flight was nearly full. The boarding process was not conducted in a very orderly fashion, causing bottlenecks in the aisles and delay. After Brosnahan and his friend were seated, a passenger approached the overhead compartment located above Brosnahan's seat. The passenger made several attempts to fit his leather garment bag in the overhead compartment. Ms. Maltaverne, who was watching the passenger struggling with his bag, testified that the bag measured approximately 2 1/2 feet by 2 feet and was between 10 and 12 inches wide. She estimated it weighed forty pounds. During one last attempt, the passenger dropped the bag on Brosnahan's head, causing him permanent head injuries.^[1] Brosnahan testified that the passenger struggled with his bag for approximately 30 to 60 seconds before the accident, and that he made quite a commotion in doing so. The bag was stowed elsewhere during the flight.

Brosnahan established at trial that a flight attendant should have been, but was not, in the "bulkhead" of the coach cabin to assist passengers with carry-on items. The "bulkhead" refers to the wall dividing the coach cabin from the first class cabin, and on that particular aircraft it is located approximately 27 feet from Row 16 where Brosnahan was seated. Brosnahan suggested to the jury that a flight attendant standing at the bulkhead would have noticed the passenger struggling with his garment bag, and would have intervened to prevent the accident. In support of these allegations, Brosnahan introduced into evidence a Western Air Lines flight attendant manual requiring attendants to be "positioned at cabin divider[s] and throughout the cabin to ... help with the stowage of carry-on items." The senior flight attendant on Brosnahan's flight, Ms. Taylor Rosenburg, confirmed that on that particular flight an attendant was assigned to the bulkhead of the coach cabin to assist passengers during the boarding process. She also testified that if a flight attendant had observed that particular passenger struggling with his carry-on baggage, he or she would have rendered assistance. Based on these facts, and medical evidence establishing injury, the jury found that Western Air Lines' failure to adequately supervise the boarding process and to assist passengers with their carry-on items caused Brosnahan's injuries. The jury accordingly rendered a verdict for Brosnahan in the amount of $74,600.

The district court granted Western Air Lines' motion for a judgment notwithstanding the verdict on the ground that Brosnahan failed to prove that the airline's negligence was the proximate cause of his injuries. Fred Brosnahan v. Western Air Lines, Inc., and Delta Airlines, Inc., No. 88-5023, Mem. Op. at 4 (D.S.D. Dec. 21, 1988). The court also ruled as a matter of law that the airline's negligence was not the actual cause of Brosnahan's injuries, stating "the act of which complaint is made would have occurred had a flight attendant been standing right to the side of the negligent passenger." Id. While acknowledging that proximate cause means "an immediate cause which in natural or probable sequence produced the injury", Mulder v. Tague, 85 S.D. 544, 186 N.W.2d 884, 887 (1971), the district court ruled that a defendant is not liable for merely creating a condition which affords an opportunity for the negligent acts of a third party to produce the injury. Mem. Op. at 6 (citing Leo v. Adams, 87 S.D. 341, 208 N.W.2d 706, 709 (1973)). The district court found that Western Air Lines' negligence only afforded an opportunity for a passenger to act carelessly, and therefore its negligence was not the proximate cause of Brosnahan's injuries. Id.

Standard of Review

We review a judgment notwithstanding the verdict under the same standard followed by the district court. See SCNO Barge Lines, Inc. v. Anderson Clayton & Co., 745 F.2d 1188, 1192 (8th Cir.1984). In resolving factual questions, we must review the evidence in the light most favorable to the party against whom the motion for judgment notwithstanding the verdict is [892 F.2d 733] offered. Id. Because the judgment in this case was ordered against Brosnahan, we must give him the benefit of all reasonable inferences that can be drawn from the evidence. Id. If under these standards there is evidence in the record upon which a reasonable juror could find for Brosnahan, the judgment for Western Air Lines notwithstanding a verdict in Brosnahan's favor must be reversed.

As to questions of law, we review the rulings of the district court de novo. Because federal jurisdiction is premised on diversity of citizenship, 28 U.S.C. § 1332, we are bound by the law of South Dakota governing causes of action in tort. Erie Railroad Co. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

II.

The district court based its decision on a line of South Dakota cases recognizing a distinction between the cause of an accident and a condition affording an opportunity for an accident to occur. In the most frequently cited case, a defendant who negligently spilled bentonite on a highway was relieved of liability for injuries sustained when a negligent driver, weeks later, skidded and injured the plaintiffs. Norman v. Cummings, 73 S.D. 559, 45 N.W.2d 839 (1951). The South Dakota Supreme Court reasoned that the spilling of bentonite was a mere circumstance of the accident, known to the speeding driver, which only furnished a condition by which the independent act of the negligent driver produced the injury. Id. 45 N.W.2d at 841. The same reasoning is found in two cases where a plaintiff who was maneuvering around a disabled vehicle left on the side of the road was hit by an oncoming vehicle. See Snodgrass v. Nelson, 369 F.Supp. 1206 (D.S.D.), aff'd, 503 F.2d 94 (8th Cir.1974) (Snodgrass ); Bruening v. Miller, 57 S.D. 58, 230 N.W. 754 (1930) (Bruening ). In each case, the operator of the parked vehicle and the driver of the oncoming vehicle were found negligent, but the operator of the parked vehicle was relieved of liability because the presence of the vehicle on the side of the road was only a condition under which the acts of the negligent driver caused injury. Snodgrass, 369 F.Supp. at 1211 (decision as to parked vehicle not appealed); Bruening, 230 N.W. at 759. For the following reasons we find these cases distinguishable from a case involving allegations of negligent supervision, such as the case here.

The distinction between "condition" and "cause" applies to a negligent defendant whose failure to act created a static condition which made the injury possible.^[2] W. Page Keeton, Prosser & Keeton on the Law of Torts 277 (5th ed. 1984) (Prosser & Keeton). It refers to the type of case "where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes." Id. at 278. In this case, Western Air Lines' failure to supervise and assist passengers in stowing their carry-on luggage did not create a static condition. An airline's duty to supervise the boarding process for the protection of its passengers continues until boarding is completed, and the danger created by an airline's breach of that duty does not abate until all passengers are seated with their carry-on luggage properly stowed. Brosnahan was injured when the forces created by the airline's negligence were still in continuous operation.^[3] See Restatement (Second) of Torts § 439 (1965) (cited in Mulder v. Tague, 186 N.W.2d at 887.).

Nor was the passenger's carelessness "independent" of the airline's negligence, [892 F.2d 734] as the South Dakota Supreme Court characterized the conduct of the negligent driver who skidded on the slippery road in Norman v. Cummings, 45 N.W.2d at 841. In Norman v. Cummings, the party responsible for spilling the bentonite on the highway had no duty to supervise the driver whose negligent act injured the plaintiffs. In the case at bar, by contrast, the jury found that the airline breached a duty to supervise the passenger whose conduct injured Brosnahan.

Western Air Lines' negligence was neither unrelated to the act of the passenger dropping his bag on Brosnahan's head, nor merely a static condition which made the act possible. Therefore, we hold that the distinction relied upon by the district court between "condition" and "cause" is inapplicable to the case at bar.

III.

We turn now to whether there was sufficient evidence from which the jury could infer that Western Air Lines' negligence was a substantial factor in bringing about Brosnahan's injuries and whether those injuries were a foreseeable consequence of the airline's failure to properly supervise the boarding process.^[4] See Leslie v. City of Bonesteel, 303 N.W.2d 117, 119 (S.D.1981). South Dakota cases also describe causation in terms of "an immediate cause which, in natural or probable sequence, produces the injury complained of." Id. at 120; see also Mulder v. Tague, 186 N.W.2d at 887.

Certainly reasonable minds could differ as to whether the presence of a flight attendant 27 feet away from Brosnahan's seat could have prevented the accident. The district court found that the presence of an attendant at the side of the careless passenger could not have prevented the accident. We do not agree. The jury was told that the passenger was struggling with his luggage for at least thirty seconds; that the passenger's efforts made a commotion; and that if a flight attendant had observed the passenger struggling with his bag, he or she would have rendered assistance. In addition there was sufficient evidence from which a juror could find that the harm that resulted was a foreseeable and probable consequence of the flight attendant's failure to supervise the stowage of carry-on luggage in the coach cabin. The jury was told that one of the reasons flight attendants are positioned throughout the cabin is to protect the safety of passengers. Ms. Rosenburg admitted that a passenger could be injured if the boarding process is not adequately supervised. In light of this evidence, it was erroneous for the judge to decide the causation element as a matter of law.

In conclusion, we hold that the district court incorrectly applied a distinction between "condition" and "cause" in granting Western Air Lines' motion for a judgment notwithstanding the verdict. We further hold that reasonable minds could differ as to the foreseeability of the injury and as to whether adequate supervision of the boarding process, specifically the presence of a flight attendant in the bulkhead of the coach cabin, could have prevented Brosnahan's injuries. Therefore, it was improper for the district court to take the case away from the jury. We accordingly instruct the district court to reinstate the jury's verdict in favor of Fred Brosnahan.

[1] The existence or extent of Brosnahan's injuries is not an issue on appeal.

[2] The distinction between "condition" and "cause" in tort law is now widely discredited, and we are not convinced that South Dakota still recognizes it. See W. Page Keeton, Prosser & Keeton on the Law of Torts 277-78 (5th ed.1984). We need not decide that precise issue, however, because we hold that the distinction is not applicable to the case at bar.

[3] In cases such as this where a third party intervenes and directly causes harm, most jurisdictions would ask whether the third person's conduct is a "superseding cause" which relieves the otherwise negligent party from liability. See Restatement (Second) of Torts § 440 (1965). The third party's conduct may be a superseding cause if it produces the harm after the negligent act or omission has been committed and if it is independent of any situation created by the other party's negligence. Id. §§ 441, 442. By contrast, "if the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious, or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability." Id. § 439. The latter situation more closely describes the case at bar.

[4] This question encompasses both cause-in-fact and proximate cause. South Dakota case law does not clearly distinguish the two elements. In most states, legal cause exists if (1) the actor's negligent conduct is a substantial factor in bringing about the harm, and (2) there is no rule of law relieving the actor from liability because of the manner in which his or her negligent conduct resulted in harm. See Restatement (Second) of Torts § 431. The first element is generally referred to as cause-in-fact or actual cause and the second refers to proximate cause. See Prosser & Keeton §§ 41 and 42.

[88 S.D. 23] [214 N.W.2d 787] Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for plaintiffs and respondents.

Whiting, Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for defendant and respondent.

Costello, Porter, Hill, Banks & Nelson, Rapid City, Francis J. Parker, Deadwood, for defendant and appellant.

DOYLE, Justice.

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

On July 4, 1970, the defendants, Bunch and White, who were friends and nextdoor neighbors, met in a bar in Lead, South Dakota. While there they decided to meet later in Belle Fourche to go fishing at a stock pond nearby. Bunch left and drove to Belle Fourche. White followed shortly thereafter. The two met again at a Belle Fourche cafe at approximately 1:00 p.m. Bunch then drove them to the fishing pond. Bunch fished for only a short while. He was 'hung over' from his previous night's activities and the heat of the day complicated his [88 S.D. 24] condition. On the trip out and throughout the afternoon, the two imbibed from a gallon thermos jug containing ice, lemonade and a fifth of vodka prepared by White. They left the pond late in the afternoon and upon Bunch's request, White drove back to Belle Fourche while Bunch slept. Arriving at Belle Fourche, White unloaded his gear from Bunch's vehicle into his own. He awakened Bunch with some difficulty. When questioned by White in regard to his condition, Bunch replied to the effect that although he did not feel all right, he did not wish to leave his vehicle in Belle Fourche. White then stated to Bunch, 'follow me' or 'just stay behind me'. White and Bunch then left Belle Fourche, each in his own vehicle, with White in front. At St. Onge, White stopped to check on his friend who, according to White, seemed all right and they continued on. Prior to the collision, the two vehicles came up behind another vehicle. The driver of this vehicle and his wife both testified that the Bunch vehicle would occasionally swerve from the shoulder of the road back out into the opposite lane of travel. This observation caused so much concern that the driver turned off the highway and permitted both vehicles to proceed ahead of him. The collision occurred shortly thereafter. The record indicates that Bunch drove his vehicle across the center line into the path of the plaintiff's vehicle. The collision occurred in such a manner that the plaintiffs had no opportunity to take any action to avoid it.

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

[214 N.W.2d 788] The plaintiffs for their cause of action against White alleged that he:

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

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

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

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

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

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

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

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

'In the absence of either one of the kinds of special relations described in this Section, the actor is not subject to liability if he fails, either intentionally or through inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm. This is true although the actor realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself. Thus if the actor is riding in a third person's car merely as a guest, he is not subject to liability to another run over by the car even though he knows of the other's [88 S.D. 26] danger and knows that the driver is not aware of it, and knows that by a mere word, recalling the driver's attention to the road, he would give the driver an opportunity to stop the car before the other is run over.'

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

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

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

[214 N.W.2d 789] As a general rule the existence of a duty, i.e., whether a relation exists between the parties such that the law will impose upon the defendant a legal obligation or reasonable conduct for the benefit of the plaintiff, is to be determined by the court. Prosser on Torts, § 36, 3rd Ed., pp. 206, 207; 57 Am.Jur.2d, Negligence, § 34.

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

Reversed.

WOLLMAN and DUNN, JJ., concur.

BIEGELMEIER, C.J., concurs in result.

WINANS, J., dissents.

[751] Vincent A. Colianni (argued), Hunter, Colianni, Cole & Bennett, Christiansted, St. Croix, U.S. Virgin Islands, for Appellant.

Ernest F. Batenga (argued), Office of United States Attorney, Christiansted, St. Croix, U.S. Virgin Islands, Patricia A. Hooks, United States Department of the Interior, Office of Regional Solicitors, Atlanta, GA, for Appellee.

Before: BECKER, Chief Judge, SCIRICA and GARTH, Circuit Judges

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This appeal requires us to interpret the "discretionary function" exception to the Federal Tort Claims Act's general waiver of sovereign immunity. The District Court dismissed a wrongful death complaint against the United States, finding that the discretionary function exception to the Federal Tort Claim Act's waiver of sovereign immunity, 28 U.S.C. § 2680(a), applied. We will reverse.

I.

The underlying facts are undisputed. In December 1993, Daniele Cestonaro, his wife Giovanna, and their daughter, all Italian citizens and residents, were vacationing in St. Croix, Virgin Islands. On the evening of December 28, the Cestonaros parked their rental car in a lot on Hospital Street in Christiansted. Upon returning to their car after dinner, the Cestonaros were confronted by two armed gun men. Daniele Cestonaro was shot and died almost immediately.

The Hospital Street lot falls within the boundaries of the Christiansted National Historic Site owned and controlled by the United States Department of the Interior, National Park Service. At the time of the murder, the Hospital Street lot was not an official parking lot. There were no signs designating or even indicating that it was a parking lot; it was neither paved nor striped. The lot's appearance, however, differed from the surrounding area in the Christiansted National Historic Site in terms of grade and surface, as it consisted of broken asphalt from a previous paving. Since the 1940s, the general public had used the Hospital Street lot as a parking area. Furthermore, the National Park Service was aware that crimes had occurred in the lot before December 28, 1993. In addition to crime incidents reports from the Virgin Island Police Department and its own park rangers, the National Park Service also received regular complaints about safety in the Hospital Street lot from local business owners.^[1]

[752] It is undisputed that the National Park Service had done nothing to deter nighttime parking in the Hospital Street lot. It had not posted signs prohibiting parking, nor signs warning of dangers of nighttime parking, nor issued tickets for illegal parking. In fact, the lot was lighted at night. Some time after the lot came into the government's possession, five lights were installed illuminating the Hospital Street lot. It is undisputed the National Park Service maintained those lights.^[2]

Giovanna Cestonaro filed a wrongful death action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, and the Virgin Islands Wrongful Death Statute, 5 V.I.C. § 76. In her complaint, Mrs. Cestonaro alleged that "[d]efendant was negligent in failing to provide adequate lighting and correct the known dangerous condition and to warn others about the existence of the dangerous condition" at the Hospital Street lot. The United States filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1) asserting the District Court lacked subject matter jurisdiction because the challenged National Park Service actions fell under the discretionary function exception to the FTCA's waiver of sovereign immunity.^[2]

The District Court dismissed the complaint, finding the National Park Service's decisions concerning the Hospital Street lot were grounded in its mission to "safeguard the natural and historic integrity of national parks" and in its policy "to minimally intrude upon the setting of such parks." Cestonaro, Civ. No. 1995-102, slip op. at 11.

Mrs. Cestonaro appealed.

II.

We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the applicability of the discretionary function exception. See Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997); Fisher Bros. Sales, Inc. v. United States, 46 F.3d 279, 282 (3d Cir.1995) (en banc). Because the government's challenge to the District Court's jurisdiction was a factual one under Fed.R.Civ.P. 12(b)(1), we are not confined to the allegations in the complaint (nor was the District Court) and can look beyond the pleadings to decide factual matters relating to jurisdiction. See Mortensen v. First Fed. Sav. & Loan. Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

III.

A.

The Federal Tort Claims Act is a partial waiver of the sovereign immunity that [753] would otherwise protect the United States from tort liability stemming from the actions of its employees. The express purpose of the FTCA is to make the United States liable "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674. But the FTCA's waiver is tempered by several exceptions. See 28 U.S.C. § 2680. For our purposes, the relevant exception is the "discretionary function exception" that withdraws the waiver of sovereign immunity with regard to:

Any claim based upon ... the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government whether or not the discretion involved be abused.

28 U.S.C. § 2680(a).

The exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). The FTCA does not, however, define "discretionary function." As a result there has arisen a trove of case law identifying the contours of the government's tort liability. Our holding that the National Park Service's decisions concerning the Hospital Street lot fall outside the scope of the discretionary function exception is consistent with that jurisprudence. See, e.g., Gotha v. United States, 115 F.3d 176 (3d Cir.1997); Cope v. Scott, 45 F.3d 445 (D.C.Cir.1995).

B.

The analytical framework of the discretionary function exception has been laid out by the Supreme Court in a trilogy of cases — United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984); Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); and United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). See Gotha, 115 F.3d at 179-80.

The first issue is whether "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. If so, the exception cannot apply. If not, the question is whether the governmental action or inaction "is of the kind that the discretionary function exception was designed to shield." Id. If it is, the action constitutes the exercise of protected discretion, and the United States is immune from suit.

The touchstone of the second step of the discretionary function test is susceptibility to policy analysis. See Gaubert, 499 U.S. at 325, 111 S.Ct. 1267 ("The focus of the inquiry is not the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis."). As we have previously stated, a plaintiff's claim can only survive if "the challenged actions cannot 'be grounded in the policy of the regulatory regime.'" Gotha, 115 F.3d at 179 (quoting Gaubert, 499 U.S. at 325, 111 S.Ct. 1267). The Court in Gaubert underscored the importance of the relationship between the discretionary decision and policy considerations, noting the exception applies only if the challenged actions can "be said to be based on the purposes that the regulatory regime seeks to accomplish." 499 U.S. at 325 n. 7, 111 S.Ct. 1267.

Before proceeding to apply the discretionary function analysis to the facts of this case, there is one remaining preliminary issue — we must identify the challenged action. See Rosebush v. United States, 119 F.3d 438, 441 (6th Cir.1997) (noting that a crucial step in determining whether challenged action is protected "is to determine exactly what conduct is at issue"). As noted by the District Court, [754] plaintiff's complaint levels two allegations concerning the National Park Service's conduct:

Defendant was negligent in failing to provide adequate lighting and correct the known dangerous condition and to warn others about the existence of the dangerous condition.

Compl. at ¶ 7. In effect, plaintiff challenges the National Park Service's decisions concerning lighting and warning in the Hospital Street lot. From the record, it is unclear whether the National Park Service made a decision not to add lighting or warning signs to the Hospital Street lot or whether that resulted from inaction or a non-decision. As was the case in Gotha, however, "[i]t would appear that ... the action or inaction goes more to the issue of negligence rather than whether the issue of policy discretion is implicated." 115 F.3d at 180. Because the question before us is only whether the nature of the actions taken, or not taken, are susceptible to policy analysis, we need not concern ourselves with whether the National Park Service acted affirmatively regarding either lighting or warning at the Hospital Street lot. See Fisher Bros., 46 F.3d at 284; Smith v. Johns-Manville Corp., 795 F.2d 301, 308-09 (3d Cir.1986) ("The test is not whether the government actually considered each possible alternative in the universe of options, but whether the conduct was of the type associated with the exercise of official discretion.").

IV.

A.

As noted, the first step in our analysis is whether there was discretion over the challenged action, that is, whether a federal regulation or policy specifically prescribes a course of action. See Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. Plaintiff contends the National Park Service, by virtue of a 1985 agreement with the Virgin Islands, had no discretion with respect to the Hospital Street lot. The 1985 agreement amended the 1952 Memorandum of Agreement that established the historic area. According to the plaintiff, the 1985 Addendum mandated the removal of the Hospital Street lot by 1988, thereby eliminating any National Park Service discretion.

The 1985 Addendum states that:

Whereas it is the intent of both parties to implement this addendum as early as possible within the next 3 years; NOW THEREFORE, it is understood that this addendum is for the specific purpose of detailing the specific remaining responsibilities of each party to achieve the purposes and objectives of the said Memorandum of Agreement, as amended.

The National Park Service shall, subject to the availability of funds, assume and undertake the following responsibilities:

A. Parking will ... be removed from the area east of Hospital Street and West of Fort Christiansvaern....

The District Court addressed the argument in two ways. First, it expressed skepticism that the 1985 Addendum constituted the kind of mandate that prevented the government's recourse to the discretionary function exception. Second, it held the plaintiff did not allege negligence on the part of the National Park Service for failing to close the parking lot, but rather for failing to provide adequate lighting or to warn of known dangers associated with nighttime parking in the lot.

Given the qualification "subject to the availability of funds," the Addendum does not appear to be the kind of express mandate that precludes coverage by the discretionary function exception. See, e.g., Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954 ("[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow."). Here, the National Park Service's determination whether there were funds available seems to be the kind of judgment or choice inherent in the discretionary [755] function exception. See id. ("[C]onduct cannot be discretionary unless it involves an element of judgment or choice."). The inclusion of "shall" in the Addendum language does not necessarily destroy the National Park Service's discretion. Cf. Brackin v. United States, 913 F.2d 858, 860 (11th Cir.1990) ("While the language of these guidelines often includes the word shall, it is clear that the decision to use one method as opposed to another is based upon numerous factors including a consideration of a method that the parties can agree on.").

But we need not determine whether the 1985 Addendum eliminates the National Park Service's discretion regarding the use of the Hospital Street lot. We agree with the District Court that the 1985 Addendum does not mandate a specific course of conduct and cannot be dispositive with respect to lighting and warning decisions in the Hospital Street lot. The lighting and warning decisions here, therefore, remain discretionary.

But this does not end our inquiry.^[4] We must determine whether the discretionary lighting and warning decisions are susceptible to policy analysis and therefore enjoy the protection of the discretionary function exception. See, e.g., Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267 ("[E]ven assuming the challenged conduct involves an element of judgment, it remains to be decided whether that judgment is of the kind that the discretionary function exception was designed to shield." (internal quotations omitted)); Berkovitz, 486 U.S. at 546-47, 108 S.Ct. 1954 ("[I]f the Bureau's policy leaves no room for an official to exercise policy judgment in performing a given act, or if the act simply does not involve the exercise of such judgment, the discretionary function exception does not bar a claim that the act was negligent or wrongful.").

As recognized by the District Court, we made clear in Gotha that susceptibility analysis "is not a toothless standard that the government can satisfy merely by associating a decision with a regulatory concern." Cestonaro, Civ. No.1995-102, slip op. at 15. In Gotha, plaintiff sought to sue the United States for its alleged negligent failure to install a staircase or bar passage down an embankment at the United States Navy's Underwater Tracking Range in St. Croix, Virgin Islands. Plaintiff slipped and fell while traveling along a footpath down the hillside. The United States contended its actions (or inactions) were motivated by "military, social and economic considerations." Gotha, 115 F.3d at 181 (internal quotations omitted). In rejecting the government's appeal to broad policy considerations that "conceivably could go to any decision by the Navy," we observed that "[t]his case is not about a national security concern, but rather a mundane, administrative, garden-variety, housekeeping problem that is about as far removed from the policies applicable to the Navy's mission as it is possible to get." Id. We also concluded that "it is difficult to conceive of a case more likely to have been within the contemplation of Congress when it abrogated sovereign immunity than the one before us." Id. at 182. That torts stemming from garden variety decisions fall outside the discretionary function exception is consistent with a primary motive behind the FTCA. See Dalehite v. United States, 346 U.S. 15, 28 & n. 19, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) (noting that "[u]ppermost in the collective mind of Congress were the ordinary common-law torts" and that "congressional thought was centered on granting relief for the run-of-the-mine [756] accidents"). In our view, the events surrounding Daniele Cestonaro's death are no more related to the National Park Service's policies than were the events surrounding Ms. Gotha's broken ankle related to the Navy's overarching policies. See discussion infra. What was true in Gotha is true here, except the consequences here were far more tragic.

B.

The National Park Service contends its decisions (or non-decisions) not to add lighting nor to post warning signs were grounded in its overarching objective of returning the area to its historic appearance.^[5] The government points to several documents to ground this policy concern. First, it relies on the original 1952 Memorandum of Agreement, which established the National Historic Site with the purpose of preserving the integrity of the historic structures and grounds. It also points to a 1972 Memorandum of Agreement which recited that its "basic objective in the management of Christiansted National Historic Site is to retain the architectural and historical integrity of the structures and their environment." The National Park Service also argues it is not expressly required to add lighting or post warning signs in the Hospital Street lot.

The National Park Service's arguments are inapposite. It may be arguable that the initial decision to maintain parking at the Hospital Street lot was protected by the discretionary function exception. But assuming this were so, subsequent decisions concerning the Hospital Street lot were not necessarily protected. See, e.g., Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); George v. United States, 735 F.Supp. 1524 (M.D.Ala.1990).

Indian Towing involved alleged negligence by the United States Coast Guard in its failure to properly maintain the light on a lighthouse it had established. Despite the Coast Guard's claim of sovereign immunity, the Court found the United States could be held liable under the FTCA for the negligent operation of the lighthouse even though the initial decision to establish a lighthouse was discretionary. The Court explained

The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.

Indian Towing Co., 350 U.S. at 69, 76 S.Ct. 122. In reasserting the vitality of Indian Towing, the Supreme Court has stated that

The [Indian Towing] Court stated that the initial decision to undertake and maintain lighthouse services was a discretionary judgment. The Court held, however, that the failure to maintain the lighthouse in good condition subjected the Government to suit under the FTCA. The latter course of conduct did not involve any permissible exercise of policy judgment.

Berkovitz, 486 U.S. at 538 n. 3, 108 S.Ct. 1954 (internal citations omitted).

In George, a District Court rejected the National Forest Service's attempt to invoke [757] the discretionary function exception when Mr. George was attacked by an alligator while swimming in a recreational swimming area designated by the Forest Service. The court held that although the decision to establish the swimming area was discretionary, the subsequent failure to warn the public of known dangers was not covered by the exception. See George, 735 F.Supp. at 1533 ("[O]nce the decision was made, the Forest Service was under a duty to act reasonably for protection of humans, particularly against hidden dangers known to the Service.").

In a similar case, in which a swimmer was struck and killed by a boat in an unrestricted portion of a lake supervised by the Army Corps of Engineers, the Court of Appeals for the Tenth Circuit held that although a "zoning" decision that resulted in the area having no restrictions was discretionary, the subsequent failure to warn swimmers was not. Boyd v. United States, 881 F.2d 895, 898 (1989). In so holding, the court in Boyd rejected the government's argument that a finding that it had protected discretion with respect to initial "zoning" decisions necessitated a conclusion that the discretionary function exception protected all decisions affecting the zoned area. See id. ("[T]he government asserts that a discretionary decision not to zone an area necessarily makes discretionary a decision that nothing be done there, regardless of potential hazards. We do not agree.").

Even if there was protected discretion for the National Park Service's decision to maintain parking at the Hospital Street lot, that does not answer whether subsequent decisions were also protected. See Indian Towing, 350 U.S. at 69, 76 S.Ct. 122; Boyd, 881 F.2d at 898; George, 735 F.Supp. at 1533. See also Patel v. United States, 806 F.Supp. 873, 878 (N.D.Cal. 1992) (refusing to hold that "all actions taken in the course of serving a search warrant are protected by the discretionary function exception" despite recognizing that "decisions to investigate the alleged illegal activity, to obtain the search warrant, when and where to serve the warrant" among others were immune from suit because they were "based on public policy considerations").

The National Park Service fails to show how providing some lighting, but not more, is grounded in the policy objectives with respect to the management of the National Historic Site. Similarly, the National Park Service has not presented a viable argument as to how its alleged failure to warn is rooted in its policy objectives. The government has not argued that having some lighting at the Hospital Street lot, but not more lighting, is consistent with its policy objective of preserving the historical integrity of the structures and their environs at the National Historic Site. Nor has it argued that having an allegedly dimly lit parking lot with no warning signs is consistent with its stated objectives. We doubt it can reasonably make such arguments.^[6]

[758] Looking beyond the government's general preservation of historicity argument, the District Court stated that "[f]urther and more importantly, the government argues that the NPS' decision reflected the NPS' hope that it could discourage parking — a use of the Site inconsistent with the Site's historicity — by eliminating all indicia of parking in the lot." Cestanaro, Civ. No. 1995-102, slip op. at 11. But, as noted, the record shows the National Park Service had not eliminated all indicia of parking in the Hospital Street lot. Neither had the National Park Service taken any action to restore the property to grade or surface of the original nor had it any plan to do so.

In short, there is no evidence to support the government's contention, adopted by the District Court that "the NPS made no improvements to the Site, for fear that improvements would (1) detract from the historic scene; and (2) lead individuals to believe that the Hospital Street lot was a sanctioned parking area and so increase the number of individuals parking there, further undermining the Site's historic character." Id. at 16.^[7]

In its attempt to fashion a policy rationale for the National Park Service's actions, the District Court also relied on the Christiansted General Management Plan, which set forth a management strategy for the site, and which called on the Park Service to:

preserve the historic site to as closely as possible represent its appearance of the early to mid nineteenth century ... No physical alterations will be undertaken to provide for ... visitor safety, if it is determined that such actions will impair significant architectural features or structural systems.

Id. at 11-12.

The District Court accurately noted that the connection between the "above-described policy and the NPS' inaction in the instant matter is somewhat attenuated." Id. at 12. But it concluded that "the NPS' decision not to place improved lighting or signs at the Hospital Street lot can be characterized as part of an overall policy and so falls within the discretionary function exception." Id. We disagree.

As noted, the Supreme Court has made clear that the proper inquiry in analyzing the discretionary function exception is whether "the challenged acts of a Government [759] employee ... are of the nature and quality that Congress intended to shield from tort liability." Varig, 467 U.S. at 813, 104 S.Ct. 2755. In explaining Congress' intent, the Court emphasized that the core purpose of the exception was to "prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Id. at 814, 104 S.Ct. 2755. The exception is meant "`to protect the Government from liability that would seriously handicap efficient government operations.'" Id. (quoting United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963)).

In our view, plaintiff's suit does not put the District Court in the position of second guessing a National Park Service administrative decision that is "grounded in social, economic, and political policy." We are unable to find a rational nexus between the National Park Service's lighting or warning decisions (or non-decisions) and social, economic and political concerns. Nor will plaintiff's claim seriously impede the National Park Service's proper functions or operations. The National Park Service remains free to make decisions grounded in policy considerations without risking tort liability; but it cannot make decisions unrelated to policy and then seek shelter under the discretionary function exception. See Sami v. United States, 617 F.2d 755, 766-67 (D.C.Cir.1979) ("[T]he exception exempts the United States from liability only where the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency." (internal quotations omitted)).

In one of its early treatments of the FTCA, the Supreme Court articulated the Act's purpose in terms that underscore why the National Park Service cannot rely on the discretionary function exception here. The Court stated:

The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental affairs in circumstances like unto those in which a private person would be liable and not to leave just treatment to the caprice and legislative burden of individual private laws.

Indian Towing, 350 U.S. at 68-69, 76 S.Ct. 122. Would a private actor in the National Park Service's shoes be amenable to suit? We believe under the facts presented, the answer is yes. No challenged decision, or non-decision, taken here by the National Park Service was reasonably rooted in policy considerations. As a result, the discretionary function exception does not apply. Plaintiff may or may not prevail on the merits, but the FTCA does not bar her suit.^[8]

C.

We do not hold that once an agency makes a decision inconsistent with its policies that all subsequent decisions must fall outside the discretionary function exception. Relying on Cope v. Scott, 45 F.3d 445 (D.C.Cir.1995), plaintiff contends that by deciding to maintain a parking lot in [760] the middle of the historic site contrary to its stated objective of returning the area to its early 19th Century appearance, the National Park Service abrogated its policies and cannot rely on them to justify its subsequent decisions concerning the Hospital Street lot. But Cope does not stand for such a broad proposition.

In Cope, plaintiff was injured in an accident on Beach Drive which passes through Washington, D.C.'s Rock Creek Park. Plaintiff sustained injuries when a car crashed into his after losing traction on a curve in the rain. The National Park Service, which owns and operates Beach Drive, asserted a discretionary function exception defense saying that its decision not to place a "slippery when wet" warning sign before the curve was a discretionary policy decision. The Court of Appeals for the D.C. Circuit reversed the District Court's dismissal based on the discretionary function exception, holding the decision of whether to post the sign was not rooted in policy considerations. See Cope, 45 F.3d at 451-52.

The Cope Court stated that it was unconvinced by the National Park Service's aesthetics argument given that "twenty-three traffic control, warning, and informational signs already exist on the half-mile stretch bracketing the curve on which the accident occurred — a stretch of road that carries 20,000 vehicles daily." Id. at 452 (internal quotations omitted). Recognizing that other aesthetics-based failure to warn cases had reached the opposite result, the D.C. Circuit stated that those decisions were "easily distinguishable [because] ... the decisions were based on a reasonable desire to protect the experience of the park visitor." Id. We believe the essential holding in Cope to be that a decision (or non-decision) must be reasonably related to a policy consideration to fall under the discretionary function exception.^[9]

V.

For the reasons stated, we hold the discretionary function exception does not apply to the National Park Service's decisions concerning the Hospital Street lot. We will reverse the judgment of the District Court and remand for proceedings consistent with this opinion.

[1] The record also reflects the Virgin Islands Police Department and the National Park Service shared information on crimes occurring within the Site's boundaries. Ten days before Mr. Cestonaro's murder, the Virgin Islands Police Department responded to investigate a first degree robbery, attempted assault, carjacking and kidnaping that had taken place in the Hospital Street lot. Despite the information sharing, the National Park Service officials deposed here professed having had no knowledge of this December 18 incident.

But we need not reconcile these facts here. The National Park Service's knowledge, or lack thereof, of the dangers in the Hospital Street lot relates more directly to the underlying negligence claims than to whether the challenged actions here were protected by the discretionary function exception. See discussion infra.

[2] Because the Hospital Street lot falls within the boundaries of the National Historic Site, which was so designated in 1952, it is likely that any physical improvements to the parking lot during the subsequent four decades were the result of a government decision. The record, however, contains no information on this point — it does not reflect exactly when the lights were installed; who made the decision to install them; nor why they were installed. As noted, the record does establish that the National Park Service maintains the lights.

[3] Along with its motion to dismiss, the government also sought, in the alternative, judgment on the pleadings and summary judgment. Because the District Court found that it lacked subject matter jurisdiction, it did not reach the government's alternative arguments. See Cestonaro v. United States, Civ. No.1995-102, slip op. at 1 n. 1, (D.V.I. Sept. 11, 1998). We only address the discretionary function exception; we express no opinion with respect to the government's judgment on the pleadings and summary judgment motions.

[4] We are mindful that "[w]hen established government policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 324, 111 S.Ct. 1267. That presumption, however, can be rebutted. See id. at 324-25, 111 S.Ct. 1267 (noting that complaint can survive motion to dismiss if "the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime").

[5] "The United States has the burden of proving the applicability of the discretionary function exception." National Union Fire Ins. v. United States, 115 F.3d 1415, 1417 (9th Cir. 1997). See also 14 Wright & Miller, Federal Practice and Procedure Jurisdiction 3d. § 3658.1 at 639 (1998) ("[M]ost courts have concluded that the burden of proving the applicability of the discretionary-function exception falls upon the United States.").

[6] In past cases, the National Park Service has relied on 16 U.S.C. § 1 to argue the discretionary function exception protects its policy decisions made by balancing aesthetic against safety interests. See, e.g., Shansky v. United States, 164 F.3d 688 (1st Cir.1999); Chantal v. United States, 104 F.3d 207 (8th Cir.1997); Bowman v. United States, 820 F.2d 1393 (4th Cir.1987). In the present case, the National Park Service might have argued that its decision not to install further lighting and/or post warning signs regarding the dangers relative to the Hospital Street lot involved a similar balancing given the historical nature of the Christiansted National Historic Site. The National Park Service, however, neither raised this argument before us nor cited the cases reflecting this balancing formula. This alone gives us ground to reject such a balancing formula.

Accordingly, we see no tension between our decision and those reached in the cases cited. Under proper circumstances, the National Park Service may balance aesthetic and safety interests and avoid liability through the discretionary function exception. To properly invoke an aesthetic interest, there must be a reasonable relationship between that interest and the challenged action. See discussion infra Part IV.C. See also Shansky, 164 F.3d at 695 (recognizing there must be a "plausible nexus between the challenged conduct and the asserted justification"). The Shansky court, relying both on the National Park Service's lack of knowledge of any prior incidents at the site and its demonstrated efforts to restore the site in an historically accurate manner, found the requisite connection between policy and justification satisfied. 164 F.3d at 695-96. As noted, neither factor pertains here. It is clear that the requisite nexus between the challenged action and 16 U.S.C. § 1 is missing.

[7] As noted, the District Court understood the National Park Service to argue the discretionary function exception applied because it did not post signs so as to avoid unintentionally attracting additional parking, which in turn would be contrary to its policy of restoring the Site's historicity. The National Park Service has made similar claims in past cases involving the discretionary function exception. See Childers v. United States, 40 F.3d 973, 976 (9th Cir.1994). Although the National Park Service in Childers claimed its decision not to post warning signs on unmaintained winter trails in Yellowstone National Park was based, in part, on its cognizance "that posting warning signs would inadvertently attract visitors to unmaintained trails," the court decided the case on other grounds. Id. The National Park Service policy at issue in Childers provided: "`If roads and trails cannot be maintained as designed and built, they should either be closed or the public adequately warned.'" Id. (citation omitted). The Court of Appeals for the Ninth Circuit found the National Park Services decision to provide warnings "though park brochures, visitor center displays, bulletin board information, and personal contacts" rather than by posting signs on trails was protected by the discretionary function exception. Id. Here, there is no evidence the National Park Service warned or attempted to warn of the potential danger of parking in the Hospital Street lot through any means.

[8] In her appeal, Mrs. Cestonaro also raised whether the District Court abused its discretion in its treatment of her motion for reconsideration, which she claimed contained a request for leave to amend her complaint which was ignored by the District Court. In a footnote in her Motion to Reconsider, plaintiff stated:

In the event the Court feels that the allegation that the NPS was negligent in failing to prohibit parking in the Hospital Street lot should be pled more explicitly in the Complaint, Plaintiff requests the opportunity to file a Motion to Amend the Complaint to include such allegation.

In light of our conclusion that the conduct challenged in plaintiff's original complaint, as understood by the District Court, is not covered by the discretionary function exception, we need not address plaintiff's motion for reconsideration. Upon the reinstatement of her suit, plaintiff may request leave to amend her complaint. See Fed.R.Civ.P. 15(a). We express no opinion whether such a motion should be granted.

[9] Note that this is different than asking whether a policy-based decision was correct or wise because such analysis would run afoul of the statutory command that the exception applies "whether or not the discretion be abused." 28 U.S.C. § 2680(a).

[22 Cal.3d 511] [150 Cal.Rptr. 2] [585 P.2d 852] Morgan, Wenzel & McNicholas, Bruce A. Broillet and Darryl L. Dmytriw, Los Angeles, for plaintiffs and appellants.

Harold Q. Longnecker, Los Angeles, Ellis J. Horvitz, Encino, and Edward J. Horowitz, Los Angeles, for defendant and respondent.

John H. Larson, County Counsel, Roberta M. Fesler, Deputy County Counsel, Ronald J. Apperson, Los Angeles, and Ralph D. Stern as amici curiae for defendant and respondent.

TOBRINER, Justice.

In this case we must determine whether, under California law, a school district may ever be held liable when, as a result [22 Cal.3d 512] of school authorities' negligent supervision of students on school premises, a pupil leaves the school grounds during school hours and is subsequently injured by a motorist. Although the trial court held that school district incurs no liability under such circumstances as a matter of law, we have concluded that the trial court was in error and that, if plaintiffs can prove that the pupil's injury was proximately caused by the school district's negligent supervision, the district may be held liable for the resultant damages.

In the summer of 1974 plaintiff Michael Hoyem, a 10-year-old boy, attended summer school at Foster A. Begg School in defendant school district. On July 16 Michael [150 Cal.Rptr. 3] [585 P.2d 853] arrived at school to attend classes but before the end of scheduled classes he left the school premises. At a public intersection a motorcycle struck Michael and he was seriously injured. A few hours after after the accident plaintiff Mary Ann Hoyem, Michael's mother, saw him in the hospital and suffered emotional and physical injuries.

Thereafter, Michael and his mother, alleging that the accident and resulting injuries were proximately caused by the school district's negligent supervision, instituted the present action against the school district.^[1] In the third amended complaint Michael sought recovery for the injuries he sustained in the accident, and his mother sought to recover (1) moneys she had expended for Michael's medical care, (2) damages to compensate her for the loss of Michael's "comfort and society," and (3) damages for the physical and emotional injuries she suffered on viewing Michael in his injured state at the hospital. The trial court sustained defendant's demurrer to all causes of action and dismissed the action; plaintiffs now appeal from the resulting judgment.

As we explain, the trial court erred in dismissing the causes of action seeking to recover damages for Michael's injuries and medical expenses allegedly caused by the school district's negligence. The causes of action based upon Mary Ann's loss of Michael's "comfort and society" and her own injuries allegedly incurred when viewing Michael in the hospital are, however, precluded by recent decisions of this court and were properly dismissed by the trial court.

[22 Cal.3d 513] 1. A school district bears a duty to supervise students while on the school premises during the school day and the district may be held liable for a student's injuries which are proximately caused by the district's failure to exercise reasonable care under the circumstances.

Although a school district is not an insurer of its pupils' safety (Taylor v. Oakland Scavenger Co. (1938) 12 Cal.2d 310, 317, 83 P.2d 948), our cases have long established that a school district bears a legal duty to exercise reasonable care in supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care. (E. g., Taylor v. Oakland Scavenger Co., supra, 12 Cal.2d 310, 83 P.2d 948; Pirkle v. Oakdale Union etc. School Dist. (1953) 40 Cal.2d 207, 253 P.2d 1; Satariano v. Sleight (1942) 54 Cal.App.2d 278, 282-285, 129 P.2d 35. See generally Annot. (1971) 38 A.L.R.3d 830.)

We recently reaffirmed this rule in Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 379, 470 P.2d 360, 363, declaring that "California law has long imposed on school authorities a duty to 'supervise at all times the conduct of the children on school grounds and to enforce those rules and regulations necessary to their protection.' (Citations.) The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care 'which a person of ordinary prudence, charged with (comparable) duties, would exercise under the same circumstances.' (Citations.)"

In Dailey, two unsupervised high school students engaged in "slap-boxing" in the school gym during lunch hour, and as a result, one of the students fell, struck his head, and died shortly thereafter. "Slap-boxing" is a rough and forbidden game which, according to the testimony of other students, was never played when a teacher was nearby. In reversing a directed verdict in favor of defendant school district, this court held that the issues of whether or not the school acted negligently in failing to provide adequate supervision of the lunch hour recess and, if so, whether the student's injuries were proximately caused by such [150 Cal.Rptr. 4] [585 P.2d 854] negligence, fell within the province of the jury.

The pleadings in the instant case are virtually identical to those which our court found sufficient to state a cause of action in Dailey. In both cases the complaint alleged that the school district failed to exercise ordinary care in supervising a student While the student was on school [22 Cal.3d 514] premises, and that such negligence proximately caused the student's resulting injury. Under well established principles, such general allegations of negligence, proximate causation and resulting injury and damages suffice to state a cause of action (see 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, §§ 450, 465, pp. 2103, 2119-2120); the court therefore improperly sustained defendant's general demurrer. Although defendant presents several arguments in an attempt to distinguish Dailey and related authorities, none of the proposed distinctions withstands analysis.

Defendant district first contends that the duty to supervise pupils applied in Dailey and earlier cases does not include any responsibility for assuring that pupils remain on the school premises during the school day. As the Dailey court pointed out, however, the duty to supervise includes the duty "to enforce those rules and regulations necessary (for pupils') protection." (2 Cal.3d at p. 747, 87 Cal.Rptr. at p. 379, 470 P.2d at p. 363.) Title 5, California Administrative Code, section 303 provides: "A pupil may not leave the school premises at recess, or at any other time before the regular hour for closing school, except in case of emergency, or with the approval of the principal of the school." We have no doubt that this rule is at least in part for the pupils' protection, and that the school authorities therefore bore the duty to exercise ordinary care to enforce the rule.

Defendant argues, however, that no California case has as yet held a school district liable for an injury incurred off school premises. Viewing the situs of the injury as a limitation on the school district's duty to supervise, defendant contends that while a school district may be obligated to exercise reasonable care to prevent on-campus injuries, it bears no similar duty to supervise students so as to prevent off-campus accidents, unless the school has specifically undertaken to provide off-campus supervision.

In the first place, defendant's broad assertion that no California decision has held a school district liable for an off-school premises injury is simply inaccurate. In Satariano v. Sleight, supra, 54 Cal.App.2d 278, 129 P.2d 35, a high school athletic field was located across a public street from the school gymnasium, and a 17-year-old student, hit by an automobile as he was crossing the street to get to the athletic field, suffered serious injury. The student brought suit against the school district, claiming that the school authorities' negligent supervision proximately caused his injuries. The evidence at trial indicated that although school authorities were aware that students regularly ran across the street outside of the crosswalk [22 Cal.3d 515] and when a teacher happened to be present the teacher would warn students to correct their behavior, the school had taken no general steps to prevent such dangerous conduct, such as stationing a teacher by the street during appropriate times.

The trial court in Satariano took the view that the school authorities' duty of supervision "ceased once the child was on a public street" (54 Cal.App.2d at p. 284, 129 P.2d at p. 39) and consequently absolved the school district of all liability for the student's injuries. On appeal, however, the Court of Appeal reversed, holding that in light of the school authorities' knowledge that many students regularly crossed the public street outside of a crosswalk, the jury should have been permitted to determine whether "ordinary care for (the students') protection did not require of the school authorities something more than sporadic warnings to individuals and groups in those accidental instances when teachers happened to be present." (Pp. 284-285, 129 P.2d p. 39.) Thus, Satariano refutes defendant's claim that the off-premises location of an injury is always sufficient, in itself, to insulate school officials from liability.

[150 Cal.Rptr. 5] [585 P.2d 855] In addition to demonstrating that the off-campus situs of an injury does not ipso facto bar recovery from a school district, Satariano illustrates that, at least in some limited instances, school authorities may bear a responsibility for supervising students when they are not on school property. (See also Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 10-11, 31 Cal.Rptr. 847; Lehmuth v. Long Beach Unified Sch. Dist. (1960) 53 Cal.2d 544, 551-552, 2 Cal.Rptr. 279, 348 P.2d 887.) In the instant case, however, we have no occasion to probe the scope of school authorities' "off premises" supervisory duty, for in this case defendant's alleged negligence relates to the district's firmly established duty to exercise due care in supervising Michael While he was on school premises.

In this context, defendant's emphasis on the Situs of the injury is totally misplaced. Contrary to defendant's assertion, no California decision suggests that when a school district fails to properly supervise a student on school premises, the district can automatically escape liability simply because the student's ultimate injury occurs off school property. (Cf. Calandri v. Ione Unified School Dist. (1963) 219 Cal.App.2d 542, 549-550, 33 Cal.Rptr. 333 (school district liable for injury student sustained At home as a result of dangerous instrument made in shop class).) Thus, in reversing the trial court decision in this case we neither impose a new duty on school districts nor in any way extend the well-established rule [22 Cal.3d 516] reiterated in Dailey; we merely reaffirm that school districts must exercise reasonable care in supervising their pupils while the pupils are on school premises. A district may be held liable if its breach of that duty proximately causes a student's injury.

The recent case of Bryant v. United States (10th Cir. 1977) 565 F.2d 650 confirms our conclusion that defendant's potential liability under the facts of this case flows directly from a school district's familiar duty to exercise ordinary care in supervising students on school premises. In Bryant, three young students at a New Mexico boarding school left the school premises without permission and were subsequently trapped in a snowstorm; as a result, the youngsters suffered extreme frostbite, necessitating the amputation of each student's legs. The students subsequently sued the federal authorities who ran the school, alleging that the injuries were proximately caused by the school's negligent supervision, and the jury returned a substantial verdict in favor of the students.

On appeal, the Tenth Circuit Court of Appeals affirmed the judgment. The court pointed out that under the governing New Mexico law, as in California, although "school authorities do not have responsibility for protective supervision at all places and under all circumstances" (565 F.2d at p. 652), "School authorities (do) have the duty to exercise ordinary care in protecting and supervising students while they are on school grounds. (Citations)." (Emphasis added.) (Id.) Because the evidence in the case established that the school authorities had failed to provide adequate supervision while the students were playing outside of the school dormitories, permitting plaintiffs to run away from the school, the court concluded that the jury could properly conclude that the authorities had breached their duty to provide reasonable "on school ground" supervision and that the school's negligence in this regard was a proximate cause of the students' injuries. In light of the similarity between the applicable New Mexico and California law, the Bryant decision directly supports our conclusion that plaintiff's complaint states a cause of action against defendant district.

In support of its contention that the off-premises situs of plaintiff's injuries should absolve it of all responsibility, defendant relies on Education Code section 44808 (formerly § 13557.5) which provides, in relevant part: "(N) o school district . . . shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district, . . . has undertaken to provide transportation for such pupil to and from [150 Cal.Rptr. 6] [585 P.2d 856] the [22 Cal.3d 517] school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances. . . ." Although defendant contends that this statute cloaks the school with a blanket immunity for off-campus injuries unless the school undertakes to furnish off-campus supervision or sponsors an off-campus activity, neither the language nor the legislative history of the statute supports such an interpretation.

First, the language of the statute itself specifies that its limitation on liability does not apply to the allegations of the instant complaint. Although the initial portion of the statute provides that "no school district shall be responsible . . . for the conduct or safety of any pupil . . . at any time when such pupil is not on school property," the section goes on explicitly to withdraw this grant of immunity whenever the school district, inter alia, " has failed to exercise reasonable care under the circumstances."^[2] Plaintiffs' complaint alleges that the school district failed to exercise reasonable care. Assuming, as we must on appeal from a sustained demurrer, the truth of the allegations of the complaint (see, e. g., Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 165, 101 Cal.Rptr. 880, 496 P.2d 1248; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732), section 44808, by its own terms, does not bar liability in the present case.

Second, the decisional history preceding the enactment of section 44808 indicates that the Legislature intended to limit a school district's liability under very different circumstances than those presented here. Two Court of Appeal cases, Kerwin v. County of San Mateo (1959) 176 Cal.App.2d 304, 1 Cal.Rptr. 437, and Girard v. Monrovia City School District (1953) 121 Cal.App.2d 737, 264 P.2d 115, which preceded the enactment of the section and upon which defendant relies heavily, demonstrate that the Legislature was principally concerned with limiting a school district's liability for injuries to pupils either before or after school hours while children were either going to school or coming home after school.

[22 Cal.3d 518] In Kerwin, a six-year-old boy became ill at school. A school official telephoned the boy's home and, finding no one at home except the boy's eleven-year-old brother, asked the brother to come and take the six-year-old home. The school subsequently released the six-year-old to his brother, and on the boys' way home the Eleven-year-old, who did not attend the younger brother's school, incurred injury. In denying recovery to the injured plaintiff, the Court of Appeal observed in dictum that even with respect to its own pupils "(a) school district is under no duty to supervise, or provide for the protection of its pupils, On their way home, unless it has undertaken to provide transportation for them . . . ." (176 Cal.App.2d at p. 307, 1 Cal.Rptr. at p. 439.) (Emphasis added.) Thus, the language in Kerwin relied upon by defendant simply declared that a school district is not legally responsible for accidents en route once pupils have been released from school, or before they arrive at school. The Legislature, in borrowing from the Kerwin language for section 44808, apparently intended to limit a district's liability under similar circumstances.

In Girard, also relied on by defendant, the court denied recovery under circumstances analogous to Kerwin. In Girard a boy was killed in a traffic accident on his way home from school. The complaint alleged that defendant school district negligently enrolled the child in the wrong [150 Cal.Rptr. 7] [585 P.2d 857] school, causing him to cross heavily traveled streets on his way home from school. Like Kerwin, Girard held that a school district has no responsibility to see that children travel safely to and from school unless it undertakes to provide transportation. (See also Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 279-280, 40 Cal.Rptr. 812; Gilbert v. Sacramento Unified School Dist. (1968) 258 Cal.App.2d 505, 508-510, 65 Cal.Rptr. 913.) Thus neither case, nor section 44808 which followed them, in any way limits a school district's responsibility to supervise students during school hours on school premises, and these authorities provide no aid to defendant in the instant case.^[3]

Defendant strenuously argues that overwhelming policy considerations militate against the imposition of liability on a district in a case, such as this in which the injured pupil left the school voluntarily, "playing [22 Cal.3d 519] hooky." Holding a school district liable for such an injury to a truant would lead, defendant urges, to "truant-proof" schools, where, to avoid liability, school personnel would be required virtually to chain students to their desks to keep them from leaving. Defendant and amicus school districts spare no metaphor in portraying the fortress-like schools which would allegedly result from our holding that the instant plaintiffs have stated a cause of action against the instant defendant. The construction of these escape-proof schools would, it is stressed, be highly detrimental to education in this state.

The district's fears in this regard are, however, clearly unwarranted since, as already noted, the district is not liable for an injury sustained by a truant under all circumstances, but rather is legally responsible only for those injuries which proximately result from the district's failure to exercise "that degree of care 'which a person of ordinary prudence, charged with (comparable) duties, would exercise under the same circumstances.' " (Dailey, supra, 2 Cal.3d p. 747, 87 Cal.Rptr. p. 379, 470 P.2d p. 363.) At trial, plaintiffs face the burden of showing that the district's supervisory procedures fell below that degree of care which reasonably prudent persons would exercise, and the jury may well absolve the district of liability in this regard. We require ordinary care, not fortresses; schools must be reasonably supervised, not truant-proof.^[4]

Finally, defendant argues that while a duty to supervise may arise during the school year, when attendance is compulsory, no such duty should be imposed during voluntary summer session. Defendant cites no authority for discarding the duty to supervise in summer session, and we find the proposed distinction artificial. Although a student may not be forced to enroll in summer school, once enrolled he must attend classes.

Additionally, the measure of the trust that parents place in the school to supervise their children is surely not diminished during summer. A large number of working parents enroll their children in summer school because they cannot afford alternative adult supervision. Surely these parents may legitimately expect adequate supervision. The following language from Satariano v. Sleight, supra, 54 Cal.App.2d 278, 284, 129 P.2d 35, 39, is as relevant to summer session as to the regular school [150 Cal.Rptr. 8] [585 P.2d 858] year: "We entrust the safety of our children to our public school authorities during school [22 Cal.3d 520] hours. They are bound to exercise an amount of care for their safety during that period commensurate with the immaturity of their charges and the importance of their trust."

2. Whether or not defendant's negligence proximately caused plaintiff's injury is a question of fact for the jury.

Although defendant primarily argues that a school district bears no "duty" to prevent off-campus injuries, it also claims that as a matter of law negligent on-campus supervision Cannot be the proximate cause of an off-campus injury. Proximate cause, however, is generally a question of fact for the jury, and, as we explain, on the basis of the allegations in the instant case the trial court could not properly hold as a matter of law that defendant's alleged negligent supervision on the campus did not proximately cause plaintiff's off-campus injury. (See 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 621, p. 2903 and cases cited therein.)

Defendant initially contends that it should not be expected to foresee that students will take advantage of a lapse in supervision to leave the school premises, and therefore that any off-campus injury is unforeseeable as a matter of law.^[5] Since at least the days of Huck Finn and Tom Sawyer, however, adults have been well aware that children are often tempted to wander off from school, and a jury might well conclude that defendants could have reasonably foreseen that this temptation might be especially strong during summer session when a student's friends might not be in school. Indeed, the duty to supervise school children is imposed in large part in recognition of the fact that, without such supervision, students will not always conduct themselves in accordance with school rules or as safely as they ought to. (See, e. g., Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d at p. 751, 87 Cal.Rptr. 376, 470 P.2d 300; Satariano v. Sleight, supra, 54 Cal.App.2d at pp. 283-284, 129 P.2d 35.) Thus, we cannot say that Michael's departure from school was unforeseeable as a matter of law.^[6]

[22 Cal.3d 521] Defendant furthermore argues that the conduct of the motorcyclist who hit the plaintiff represents a "superseding cause" which cuts off any liability that the school district might bear for the accident. In Dailey, defendant school district pressed a similar argument, suggesting that the school's negligent supervision was not a proximate cause of the injury because a third party wrongfully hit the plaintiff. We rejected that argument, noting: "(t)he fact that another student's misconduct was the immediate precipitating cause of the injury does not compel a conclusion that negligent supervision was not the proximate cause of Michael's death. Neither the mere involvement of a third party nor that party's wrongful conduct is sufficient in itself to absolve the defendants of liability, once a negligent failure to provide adequate supervision is shown. (Citation.)" (Emphasis added; fn. omitted.) (2 Cal.3d at p. [150 Cal.Rptr. 9] 750, 87 Cal.Rptr. at p. 381, 470 P.2d at p. 365.)

[585 P.2d 859] As we explained in Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199, 60 Cal.Rptr. 499, 507, 430 P.2d 57, 65, "where (an) injury was brought about by a later cause of independent origin . . . (the question of proximate cause) revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved of liability towards the plaintiff; if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiff's injuries."

In the instant case, we certainly cannot say that the risk of a student's injury at the hands of a negligent motorist is, as a matter of law, not a foreseeable risk created by a school district's failure to exercise due care in supervising its pupils. (See, e. g., Taylor v. Oakland Scavenger Co., supra, 12 Cal.2d 310, 83 P.2d 948; Satariano v. Sleight, supra, 54 Cal.App.2d 278, 129 P.2d 35.) Thus, the subsequent negligence of the motorist does not necessarily relieve the district of all liability for the injury. Of course, under this court's recent decision in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, the school district is entitled to join the motorcyclist as a cross-defendant in the action in order to pursue a claim for comparative indemnity; thus, if the jury [22 Cal.3d 522] determines that the motorcyclist is principally responsible for the injuries, he will be the party who will bear primary responsibility for the lion's share of the damages.

In sum, the trial court's decision sustaining defendant's demurrer cannot be justified on the ground that defendant's alleged negligence was not a proximate cause of plaintiff's injuries as a matter of law. The proximate cause issue should properly have been submitted to the jury.

Accordingly, the trial court erred in dismissing plaintiffs' action seeking recovery for Michael's injuries.

3. Mary Ann's causes of action for loss of Michael's comfort and society and for her own injuries were properly dismissed.

Plaintiff May Ann Hoyem's cause of action for her expenditures on Michael's behalf was, like Michael's own cause of action, improperly dismissed. Her other causes of action, however, for loss of Michael's "comfort and society" and for her own injuries on viewing Michael in the hospital, are precluded by recent decisions of this court.

In Baxter v. Superior Court (1977) 19 Cal.3d 461, 463, 138 Cal.Rptr. 315, 316, 563 P.2d 871, 872, this court declined "to enlarge the parent's cause of action to permit recovery for the loss of affection and society" when a child is injured. Mary Ann's cause of action on this score cannot stand.

Mary Ann also urges that this court extend the cause of action we recognized in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, to include a plaintiff who suffers emotional and physical injury when seeing the primary victim of defendant's negligence hours after the accident. In Dillon this court set out the rule that "courts should allow recovery to a mother who suffers emotional trauma and physical injury From witnessing the infliction of death or injury to her child for which the tort-feasor is liable in negligence." Emphasis added.) (68 Cal.2d at p. 730, 69 Cal.Rptr. at p. 74, 441 P.2d at p. 914.)

The Court of Appeal in Deboe v. Horn (1971) 16 Cal.App.3d 221, 94 Cal.Rptr. 77 declined to extend the Dillon rule to include a wife who suffered emotional and physical injury when seeing her husband in the hospital hours after he had been injured in an automobile accident due to defendant's negligence. Recently, in Justus v. Atchison [150 Cal.Rptr. 10] (1977) 19 Cal.3d [22 Cal.3d 523] 564, 139 Cal.Rptr. 97, 565 P.2d 122, we approved the Deboe opinion [585 P.2d 860] and denied recovery to an expectant father who was present in the delivery room when the fetus of his unborn child died, but who did not know of the death until later informed by doctors. We held in Justus that "Dillon requires more than mere physical presence: . . . the shock must also result from a 'direct emotional impact' on the plaintiff caused by 'sensory and contemporaneous observance of the accident.' " (19 Cal.3d at p. 584, 139 Cal.Rptr. at p. 110, 565 P.2d at p. 135.) Mary Ann's Dillon cause of action, was therefore, properly dismissed.

4. Conclusion.

As explained above, California school districts have long borne a legal duty to exercise reasonable care in supervising students on school premises during school hours. In the present case, plaintiffs' complaint alleges both that defendant breached this duty of care and that such negligence proximately caused Michael's injuries. These allegations are sufficient to state a cause of action against the school district.

Contrary to defendant's assertions, our holding in no way expands the supervisory obligations of school districts and does not place a new duty upon school authorities to control the conduct of students when they are off school premises. As we have explained, defendant's liability in this case is posited not on an alleged failure to supervise Michael when he was off the school premises, but rather on an alleged failure to exercise due care In supervision on school premises. Defendant will be held liable for Michael's injuries only if the jury concludes that defendant's on-site supervision was negligent and that such negligence was a proximate cause of those injuries.

The judgment is affirmed insofar as it dismisses Mary Ann Hoyem's causes of action for loss of Michael's society and comfort and for personal injuries sustained as a result of viewing Michael's injuries after the accident. In all other respects, the judgment is reversed. Plaintiffs shall recover their costs on appeal.

BIRD, C. J., and MANUEL and NEWMAN, JJ., concur.

CLARK, Justice, concurring and dissenting.

Paying only lip service to the established rule a public school district is "not an insurer of its pupils' safety" (Ante, p. 3 of 150 Cal.Rptr., p. ---- of --- P.2d), the majority impose on districts insurmountable [22 Cal.3d 524] duties and financial burdens. We are told a district has an Absolute liability for whatever ill befalls a truant after escaping from school premises because security measures are too lax.^[1] Short of complete closure, the majority opinion forces a district to respond in one or both of two ways, either of which imposes impractical if not impossible financial responsibilities.

First, a district may insure truants against third party tortfeasors for injuries suffered while off school grounds. Even absent the great cost of this added responsibility, it is questionable whether school districts can survive financial burdens already thrust upon them by ever increasing personal injury awards and erosion of sovereign immunity concepts. The State Superintendent of Public Instruction, in a press [150 Cal.Rptr. 11] release on 5 April 1978, stated public schools face an insurance crisis which could bankrupt [585 P.2d 861] them if unchecked. He reported liability insurance premiums in the four preceding years have increased an average of 345 percent for elementary school districts, stating "Costs have gone up so much that some school districts can't afford to pay for the insurance they need to protect themselves. . . . And even if they have the money, coverage is hard to get because many insurance companies are not interested in insuring schools." (See, also Liability Insurance in California Public Schools (Dept. Pub. Ed. 1978); A Report of the Liability and Property Insurance Crisis in Los Angeles County Public Schools (Office of L.A.Co.Super. of Pub.Schs.1977).)

The report of the Department of Education shows total premiums paid by included school districts rose from $8,272,684 in 1974-1975 to $39,794,451 in 1977-1978, with only minimal expansion in total coverage. The data compiled and reported by the department did not, of course, reflect the further dramatic premium increases today's opinion will produce. In view of the tremendous financial impact resulting from adoption of Proposition 13 in the Primary Election of 1978, the majority [22 Cal.3d 525] decision will surely hasten the insolvency of some school districts as predicted by the State Superintendent of Public Instruction.

The alternative, itself imposing additional financial and administrative burdens, is to increase security on school campuses to reduce truancy. This can be accomplished by reducing campus size to a manageable enclosure and restricting students either by barriers or by security personnel sufficient in number to watch and police all points of egress essentially a concentration camp.^[2]

An even more serious problem confronting school districts would be in maintaining the quality of education now available on open campuses. In Bright v. Los Angeles Unified School District (1976) 18 Cal.3d 450, 134 Cal.Rptr. 639, 556 P.2d 1090, we dealt with the question of openness of expression on school campuses. Although we now deal with the question of openness of physical freedoms our views in Bright are nevertheless pertinent. We said there that "student communication . . . may cause trouble and lead to disturbance, but 'our history says that it is this sort of hazardous freedom this kind of openness that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.' " (Id., at p. 456, 134 Cal.Rptr. at p. 643, 556 P.2d at p. 1094, quoting from Tinker v. Des Moines School District (1968) 393 U.S. 503, 508-509, 89 S.Ct. 733, 21 L.Ed.2d 731. An enforced atmosphere of confinement and limitation on movement will also discourage off-campus and inter-campus innovative programs and even such programs which require freedom of movement to different facilities within a single campus.

There is little question the majority decision is grounded on a policy determination that, in their view, yet another element of society should be afforded an insured's protection against mishap.^[3] Such policy determination is generally for the Legislature either to make in the first instance or to redetermine after judicial intervention into an area properly a legislative matter. The author of today's majority opinion has [22 Cal.3d 526] addressed the issue of when the court should decline to extend liability. Approximately one short year ago he wrote as author of another majority opinion: " 'Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal [150 Cal.Rptr. 12] consequences of wrongs to a controllable degree.' ( P ) . . . '(N)ot every loss [585 P.2d 862] can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor's responsibility for damages under the general rule of tort liability (Civ.Code, § 1714), the courts must locate the line between liability and nonliability at some point, A decision which is essentially political.'" (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 446-447, 138 Cal.Rptr. 302, 306, 563 P.2d 858, 862; italics added.)

The restraints suggested in Borer are particularly applicable when public liability is sought to be extended, as in the instant case. In Peter W. v. San Francisco Unified School District (1976) 60 Cal.App.3d 814, 131 Cal.Rptr. 854, plaintiff sought to create a new area of school district liability for "educational malpractice." In concluding liability should Not be extended, the court stated: "(J)udicial recognition of such duty . . . is initially to be dictated or precluded by considerations of public policy. . . . '(I)n the case of a public agency defendant, the extent of its powers, the role imposed upon it by law and the limitations imposed upon it by budget; and finally, the moral imperatives which judges share with their fellow citizens such are the factors which play a role in the determination of duty. . . . ' (Raymond v. Paradise Unified School Dist., supra, 218 Cal.App.2d 1, 8-9, 31 Cal.Rptr. 847 . . . ) ( P ) In Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 . . . the Supreme Court used similar terminology in defining various public policy considerations as exceptional factors which might alone warrant NonLiability for negligence. . . . ( P ) . . . (T)he major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. . . . (Rowland v. Christian, supra, 69 Cal.2d 108 at pp. 112-113, 70 Cal.Rptr. 97, 443 P.2d 561. . . .)'' (Id.,At pp. 822-823, 131 Cal.Rptr. at pp. 859-860.)

Obviously, the factors mentioned by us in Rowland and relied on in Peter W. a case closely in point with the instant case should persuade us to exercise the restraint urged in Borer. Here the district could not [22 Cal.3d 527] foresee the particular harm to plaintiff; the certainty plaintiff would suffer harm as a truant was no greater than had he been properly dismissed from school on the day in question; there is only remote connection between the district's alleged negligence and the injury suffered; there is little if any moral blame in the district's conduct; the burden on the district is, as stated, insurmountable; the effect of imposing liability on the district will be negative and far-reaching; and the cost of insurance, even if available, will impose a burden the district may well not be able to overcome.

The judgment should be affirmed.

RICHARDSON, Justice, dissenting.

I respectfully dissent and, agreeing with the reasoning and conclusions of Justice Clark in his dissent, only wish to add the following.

As a policy matter I oppose the imposition of civil liability upon a school district for injuries sustained off the school premises by a truant school pupil who has voluntarily and knowingly left the school premises during school hours. In my view, the fastening of liability on a school under these circumstances goes too far. Just 10 years ago in Dillon v. Legg (1968) 68 Cal.2d 728, at page 734, 69 Cal.Rptr. 72, at page 76, 441 P.2d 912, at page 916, we repeated the wise admonition of Dean Prosser that whether a duty of care exists turns on " ' . . . whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. . . . "Duty" [150 Cal.Rptr. 13] is not sacrosanct in itself, but only an Expression of the sum total of those considerations [585 P.2d 863] of policy which lead the law to say that the particular plaintiff is entitled to protection.' (Prosser, Law of Torts, supra (3d ed. 1964), at pp. 332-333.)" (Italics added.)

These "considerations of policy" in the case before us should, among other things, include the fundamental function, purpose, and role of a school and its staff, the nature and probable degree of supervision required to prevent truancy, the physical variables of entrances and exits to school grounds, the financial costs of adequate supervision to prevent truancy, the relative moral culpability of pupil, parent, and school administration, the historical experience of schools in the supervision of pupils, truant and nontruant, the expense of adequate insurance to cover the extension of liability herein, and other factors. Weighing these different considerations, I conclude that for policy reasons we should not impose such a duty of care on a school district. A line should be drawn [22 Cal.3d 528] limiting a school's liability to injuries to a pupil which occur on school property, or when the pupil is transported to, or participating in, a school-sponsored or school-related activity, in the manner contemplated by Education Code section 44808 (formerly § 13557.5).

The instant case involved a truant who was injured at an intersection four blocks from the schoolyard by a third party motorcyclist. I cannot say that the next case may not involve a truant who without anyone's permission or knowledge deliberately slipped away from school unnoticed, hopped a freight train and was injured when he fell off a car four days later in Duluth, Minnesota.

We should recognize that some children's activities are not risk-proof. One of the continuing hazards, by reason of the very nature of a school's operations, is that a school child during school hours, purposely and surreptitiously may escape from the schoolyard and the school environment and run off on a lark of his own and thereby be injured. If this happens, the event is unfortunate perhaps tragic indeed, but I would not require that the liability protection of a school district must, like a shadow, follow the youngster as he wanders around town.

I believe this is what the Legislature had in mind in its enactment of Education Code section 44808 (formerly § 13557.5).

MOSK, J., concurs.

[*] Pursuant to Constitution, article VI, section 21.

[1] Plaintiffs have filed a separate action against the driver of the motorcycle and the issue of the driver's liability is not before us.

[2] That the "reasonable care" exception in the statute is not accidental is clear from the legislative history. The original bill, passed by the Assembly, was identical to the current statute but did not include the final phrase about reasonable care. That phrase was added by Senate amendment (4 Sen.J. (1972 Reg.Sess.) p. 6247) and then approved unanimously by the Assembly. (4 Assem.J. (1972 Reg.Sess.) p. 7049.) The intent of the Legislature is clear: when a school district fails to exercise reasonable care the immunity of this section evaporates.

[3] Defendant also relies on Castro v. Los Angeles Bd. of Education (1976) 54 Cal.App.3d 232, 126 Cal.Rptr. 537 which, in dicta interpreting the instant statute, states: "Students who participate in nonrequired trips or excursions . . . are effectively on-their-own; the voluntary nature of the event absolves the district of liability." (54 Cal.App.3d at p. 236, 126 Cal.Rptr. at p. 540.) Castro, however, is distinguishable from the instant case because it dealt not with an allegation that the school district failed to exercise reasonable care in supervising students on school premises, but with an accident occurring at a school-sponsored ROTC outing. The Castro court held the district liable because the activity was school-related.

[4] Moreover, if the jury finds that the truant student's negligence was a proximate cause of his injuries, defendant's liability for such injuries will, of course, be diminished on the basis of comparative negligence principles. (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.)

[5] Defendant does not contend that the trial court could conclude that its alleged negligence was not an actual or "but for" cause of the accident as a matter of law. Plaintiff alleges that if defendant had provided adequate supervision, Michael would never have left the school premises and would not have sustained his subsequent injuries. On the basis of this pleading, the issue of actual causation is clearly a question of fact for the jury.

[6] Although defendant argues that its negligent supervision should not be considered a proximate cause of the accident because the accident might easily have occurred at a time of day during which the district bore no duty of supervision, under traditional negligence principles such a speculative possibility cannot absolve the district of liability for the accident. Thus, in Dailey, for example, although the district could have similarly claimed that the slap-boxing incident might have occurred during nonschool hours, our opinion made clear that the district could be held liable so long as its negligent supervision was an actual ("but for") cause of the injury and the general type of injury was reasonably foreseeable. (See 2 Cal.3d at pp. 750-751 and fn. 7, 87 Cal.Rptr. 376, 470 P.2d 300.) The same principles apply here.

__________

[1] We are not told of the majority position in the case of students who, having permission to be off campus or having terminated their school day, are injured by third party tortfeasors while proceeding to their homes. Certainly the majority do not intend to afford the truant greater benefits than is afforded students conforming to established rules. Yet the Legislature has expressly denied protection to such students. (Ed.Code, § 44808, formerly § 13557.5.) The majority do not explain such conflict nor do they attempt to square today's decision with decisions holding a district is not liable for off-campus injuries suffered by a student while returning home from school (Girard v. Monrovia City School Dist. (1953) 121 Cal.App.2d 737, 264 P.2d 115; Angelis v. Foster (1938) 24 Cal.App.2d 541, 75 P.2d 650), while away from school with express permission (see Kerwin v. County of San Mateo (1959) 176 Cal.App.2d 304, 1 Cal.Rptr. 437), or even while on an errand for the teacher (see 38 A.L.R. 830, 844).

[2] There is actually little a school district can do to restrain a student who wishes to leave a campus. Even a habitual truant cannot be suspended or removed from school rolls. (Ed.Code, § 48900.) The majority thus propose to make a school district an insurer of the safety of such persons although the district lacks the power to control their movements.

[3] If a school district is negligent because a truant is able to leave campus, and such negligent conduct is the actual and proximate cause of injuries suffered when struck by a negligently operated motorcycle, is not the school district liable to a motorcycle driver injured when that truant negligently darts into the motorcycle's path?

[819 P.2d 590] Syllabus by the Court

1. When a third party asserts a negligent retention and supervision claim against an employer, liability results not because of the employer-employee relationship but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor. The employer is subject to liability only for such harm as is within that risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee that the employer had reason to believe would be likely to cause harm. However, it is not necessary that the precise nature of the injury alleged by the third-party plaintiff would have been foreseen by the employer.

2. Whether risk of harm is reasonably foreseeable is a question to be determined by the trier of fact. Only when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law.

3. Rules to be considered on appeal as to summary judgment and directed verdict are stated and applied.

4. The discretionary function exception to the Kansas Tort Claims Act, K.S.A. 75-6104(e), is discussed and applied, and it is held that, under the facts of this case, the defendant school district was not immune from liability for damages sustained by plaintiff's conservatee.

5. K.S.A.1990 Supp. 38-1522, which establishes a duty for school teachers and school administrators to report all suspicions of child abuse, does not provide a private right of action.

6. Intentional acts of [249 Kan. 349] a third party cannot be compared with the negligent acts of a defendant whose duty it is to protect the plaintiff from the intentional acts committed by the third party.

7. Under the facts of this case, the act of negligence was the failure of the defendant school district and the defendant employer of an intentional tortfeasor to prevent the tortfeasor from committing the intentional act. The negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent.

8. The $500,000 limit on liability under K.S.A. 75-6105 of the Kansas Tort Claims Act is not applicable where a contract of insurance provides coverage in excess of such limitation. K.S.A. 75-6111.

9. Ordinarily, the assessment of damages in a personal injury action is exclusively the province of the jury. If the evidence with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the successful party below, will support the verdict, the verdict should be affirmed.

10. In an action for personal injuries the trial court should instruct the jury only on those items of damages upon which there is some evidence to base an award.

11. Under the facts of this action for unliquidated damages, the use of an itemized verdict form negated the traditional requirement that a plaintiff must either [819 P.2d 591] consent to a reduced judgment or receive a new trial when a portion of the judgment has been set aside.

John E. Cowles, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, argued the cause and was on the briefs, for appellants.

Steven R. Smith, of Render, Kamas & Hammond, Wichita, argued the cause, and Albert L. Kamas, of the same firm, was on the brief, for appellee.

Michelle V. Hostetler, Wichita, was on the brief, for amicus curiae Kansas Child Abuse Prevention Council.

Donald W. Vasos, of Vasos, Kugler & Dickerson, Kansas City, was on the brief, for amicus curiae Kansas Trial Lawyers Ass'n.

[249 Kan. 350] Bruce Keplinger, of Payne & Jones, Chartered, of Overland Park, was on the brief, for amicus curiae Kansas Ass'n of Defense Counsel.

Cynthia Lutz Kelly and Kerry M. Gasper, Topeka, were on the brief, for amicus curiae Kansas Ass'n of School Boards.

SIX, Justice:

This is a tort action arising out of the alleged sexual molestation of H.R. by her school bus driver, H. Ardon Davidson. H.R. is a six-year-old girl afflicted with Down's syndrome.

The case presents issues involving: (1) the sufficiency of the evidence to prove that the school district and Davidson's employer knew or should have known that an undue risk of harm would exist because of Davidson's employment; (2) school district immunity and the discretionary function exception under K.S.A. 75-6104(e) of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.; (3) existence of a private right of action under the mandatory child abuse reporting statute, K.S.A.1990 Supp. 38-1522; (4) apportionment of fault of negligent tortfeasors with the fault of an intentional tortfeasor; (5) the application of the KTCA K.S.A. 75-6105 $500,000 maximum liability provision; and (6) the amount of the damage verdict.

Our jurisdiction is under K.S.A. 20-3017 (transfer from the Court of Appeals to this court by motion).

The action is being prosecuted in the name of Kansas State Bank & Trust Company (Kansas State Bank), as conservator and next friend of H.R., a minor.

The Trial Court Rulings

Plaintiff filed suit against Davidson for intentional battery and against Unified School District No. 259 (U.S.D.) and Specialized Transportation Services, Inc., (S.T.S.) on theories of respondeat superior, negligent hiring, and negligent retention and supervision of Davidson.

U.S.D. cross-claimed against S.T.S. asserting, in part, that S.T.S. had agreed to indemnify U.S.D. for any claims arising out of or in connection with the U.S.D.-S.T.S. transportation contract. Judgment was entered for U.S.D. against S.T.S. on the indemnification agreement cross-claim.

U.S.D. and S.T.S. were granted summary judgment on the respondeat superior and negligent hiring claims. The trial court [249 Kan. 351] held that the intentional criminal act of Davidson was outside the scope of his employment and the uncontroverted facts show that Davidson was otherwise a competent and qualified person suitable for employment as a school bus driver. Summary judgment for U.S.D. was denied as to negligent retention and supervision of Davidson (genuine issues of material fact existed). The trial court further ruled U.S.D. was not immune from liability under the Kansas Tort Claims Act (KTCA) because the actions alleged by plaintiff to be wrongful were not discretionary functions.

After the plaintiff rested its case, U.S.D. and S.T.S. moved for a directed verdict, arguing that neither U.S.D. nor S.T.S. knew or should have known that Davidson had a propensity to sexually molest children. U.S.D. again argued that it should be granted immunity under the discretionary function provision of the KTCA.

The trial court denied the motion, finding that there was sufficient evidence to send [819 P.2d 592] the case to the jury and that the jury should determine whether it was foreseeable that Davidson would commit a battery on one of the students he transported to and from school.

The jury returned a verdict for $1,800,000. The verdict was assessed against Davidson, the intentional tortfeasor. Fault was apportioned under K.S.A.1990 Supp. 60-258a between U.S.D. (70%) and S.T.S. (30%). The trial court ruled that liability as between Davidson and the negligent tortfeasors would be joint and several. Judgment was entered for the plaintiff against U.S.D. for $1,260,000 and against S.T.S. for $540,000. U.S.D. prevailed on its cross-claim for indemnification against S.T.S. No appeal was taken on the cross-claim.

U.S.D. and S.T.S. appeal the judgments in favor of plaintiff. Davidson has not appealed. We affirm in part, reverse in part, and remand.

Facts

H.R.'s parents were determined to maximize her potential. H.R. attended Starkey Developmental Center (Starkey) from June 1984 until September 1985 when she was enrolled at Bryant Elementary School (Bryant). In September 1984, Starkey prepared [249 Kan. 352] H.R.'s social history report. The report observed that H.R. had occasional urination accidents. The report also stated: "One problem behavior that the [parents] have with [H.R.] is her dislike of seat belts. [H.R.] can release them in a second. Mrs. [R., the mother,] puts masking tape on the release button to avoid this problem. She requests that this be done on the van." Starkey records also indicated incidents of H.R. taking her clothes off.

H.R. entered Bryant at the age of five. She was placed in the trainable mentally handicapped level one class (TMH-1). A TMH-1 class is designed for students between five and eight years old with IQ's between 45 and 60.

H.R. was transported to and from school in a nine-passenger van operated by S.T.S. S.T.S. provided this transportation for U.S.D.'s special education children under a contract with U.S.D. S.T.S. had a "very good" record in performing its transportation duties and was considered superior to its predecessor.

Davidson was H.R.'s van driver from the fall of 1985 until December 1986. Davidson began driving for S.T.S. in 1984. S.T.S. requires its drivers to attend 24 hours of training, consisting of 10 hours of first aid, 8 hours of defensive driving, 2 hours behind the wheel (to go over the routes), and 4 hours of training in dealing with special students. The manager of S.T.S. testified that Davidson complained, as did all of the S.T.S. drivers, about behavior problems of the special education students. Davidson was instructed to fill out "school bus incident reports," turn them in, and speak with the principal.

H.R.'s mother testified of an encounter she had with Davidson in November 1985. Davidson was sometimes a few minutes early or late picking H.R. up. Mrs. R. asked Davidson to park 5 or 10 feet forward so that she could see the van from her kitchen window. Davidson became angry, waved his hands, yelled, and was "out of control." He asked her to close the van door. Mrs. R. refused until he settled down. Davidson started to drive off, and Mrs. R. had to close the door as he was driving away.

Mrs. R. called Jerry Burns, the Bryant principal, to report the incident. Mrs. R. was concerned about the children because Davidson was "out of control." Burns said he would see if he could switch Davidson to another route. Burns later told Mrs. R. the switch was not feasible.

[249 Kan. 353] Mrs. R. testified that the day after the van door incident, Davidson insisted that H.R. sit in the front passenger seat next to him. Following the door incident, Mrs. R. noticed a change in H.R.'s behavior. H.R. became depressed, began wetting the bed, and became mean. Mrs. R. characterized this behavior as "acting out."

Mrs. R.'s babysitter was also having a problem with Davidson (horn honking, rude, and in a hurry) and asked that Mrs. R. call the school. Mrs. R. called Burns; Burns said he would handle it. Mrs. R. [819 P.2d 593] asked Burns if she could call the bus company. Burns said it was school policy to go through the school.

H.R.'s behavior gradually worsened in the spring of 1986. However, when H.R. attended summer school and was driven there by a different bus driver, her behavior improved. The bed wetting stopped and she was well-behaved at school.

In the fall of 1986, Davidson was again H.R.'s van driver. In October 1986, Mrs. R. attended an Individual Educational Program (IEP) meeting with H.R.'s teacher, Kim Brown. According to Mrs. R., the teacher indicated H.R. was overly affectionate and displayed inappropriate behavior such as hugging the driver. After the IEP meeting, school personnel called Mrs. R. and told her that H.R. was drinking toilet water, licking the toilet and the bathroom floors, and plugging the toilets up, which flooded the floor.

Mrs. R. knew something was wrong. She kept calling the school and telling school personnel something was wrong. She talked about H.R.'s behavior problems with Betsy Carrell, another of H.R.'s teachers. She told Carrell about the argument with Davidson and that she was afraid Davidson was verbally taking it out on H.R. According to Mrs. R., Carrell was concerned and said she would keep an eye on Davidson. Carrell commented that Davidson seemed emotionally disturbed.

Mrs. R. testified that on December 10, 1986, she was called at work by someone from the school and told to go to the babysitter's house to meet the bus because the babysitter was not there. When she arrived at the babysitter's house, the babysitter was there and claimed to have been there all along.

[249 Kan. 354] Mrs. R. told investigators of the Exploited and Missing Child Unit (EMCU) that school personnel had called her on that day and told her that H.R. had been uncontrollable on the bus.

At trial, Mrs. R. testified that on the night of December 10, 1986, she sat down to have a talk with H.R. to see what the problem was. H.R. was upset. Mrs. R. stated, in her interview with EMCU investigators, that she asked H.R. if H.R. was going to be able to behave on the school bus. H.R. responded that she did not like the bus driver. She said he touches her "dinky" and pokes her "bum." H.R. uses the terms "dinky" to refer to her genital area and "bum" to refer to her buttocks.

Mrs. R. was in shock. She wrote down both the questions she had asked H.R. and H.R.'s responses. H.R. removed her clothes and began pushing on her genital area to show Mrs. R. what the bus driver had done.

The next day, December 11, 1986, Mrs. R. accompanied H.R. to school, saw Burns, and requested a meeting with Burns, the teacher, the school counselor, the school psychologist, and someone from the bus company. She stated that she did not tell Burns what the meeting was about.

Paul Pritchard, the U.S.D. director of transportation, testified that Burns called him the morning of December 11, 1986, and told him that Mrs. R. had felt that there was a possibility H.R. was being sexually molested by Davidson. Pritchard contacted the manager of S.T.S. and requested that Davidson be taken off the route until the matter was investigated.

A meeting was set up for that afternoon. Mr. and Mrs. R., Burns, Pritchard, Kim Brown (H.R.'s teacher), and Barbara White, Security Supervisor for U.S.D., attended the meeting. Mrs. R. repeated what H.R. had told her. Mrs. R. testified that Burns said he knew what the meeting was going to be about. According to Mrs. R., Burns said, in hindsight, he should have thought something was wrong when Mrs. R. had complained about Davidson and when he had seen H.R. sitting on Davidson's lap. According to Mrs. R., Brown stated at the meeting that it frustrated her that Davidson insisted H.R. sit in the front seat.

Mrs. R. stated: "I never in my wildest dreams would ever have dreamt that something so horrible was going on, but I knew that there was something that this man was--that something was upsetting [249 Kan. 355] my daughter about this man." Mrs. R. testified [819 P.2d 594] if she had known these things (H.R. sitting on Davidson's lap and Davidson insisting that H.R. sit up front), she would have been able to piece the problem together. Mrs. R. had testified earlier that she knew prior to the meeting that Davidson required H.R. to sit in the front seat.

Brown testified about H.R.'s behavioral problems. In addition to the behavior observed by Mrs. R., Brown related that H.R. pinched and hit other children and took her clothes off in the bathroom. Brown also noticed H.R. masturbating from time to time. Brown recalled that she told Mrs. R. about the masturbation in the fall of 1986 before the report of molestation. According to Mrs. R., she was not told that H.R. was masturbating until the 1987 spring I.E.P. meeting. Brown observed that other children in her class masturbated. She did wonder, concerning H.R., if something was going on. Brown knew that Mrs. R. was divorced and wondered if Mrs. R. was dating. Brown talked about H.R. with Mrs. R. They discussed the fact that there had been a recent divorce and there were changes going on in the home. Brown did not suspect abuse.

Brown was frustrated that Davidson insisted that H.R. be the last one to enter the bus because Davidson was having trouble with H.R. while he waited for all the children to be loaded. She felt that loading was his responsibility, not hers. Brown observed that H.R. never indicated a reluctance to get on the bus. Brown had no indication that Davidson might have a propensity to sexually molest one of his student passengers.

Following the December 11 afternoon meeting, Burns reported the allegations of H.R.'s sexual molestation to the Kansas Department of Social Rehabilitation Services. On December 18, 1986, the case was assigned to Detective Pamela Horn of the Wichita Police Department and her social work partner, Dan Crask, both of the EMCU. Horn and Crask investigated the incident. Their report was admitted into evidence. H.R. told Horn and Crask that Davidson had "poked" her. H.R. also told them that Davidson poked other students on H.R.'s bus.

Horn and Crask interviewed Tara and Rosie, also students on H.R.'s bus. Tara stated that the bus driver was a "good man." [249 Kan. 356] The interviews were not productive. Other students and their parents, were not interviewed.

Horn testified that she checked in the Kansas towns where Davidson had lived. He had never been convicted of, arrested for, or reported as a suspect in any crime. Horn found no information that Davidson had ever been involved in any sort of sexual molestation.

A pediatrician examined H.R. on January 2, 1987. H.R. told the doctor that the bus driver had "poked" her with a finger, a knife, and a marble. The poking occurred from behind while she was on the bus driver's lap. The results of H.R.'s genital exam were consistent with a blunt, penetrating trauma. The doctor testified concerning a number of signs indicative of sexual abuse.

Davidson denied the allegations. He recalled that he had problems with H.R. from the first day. H.R. did not want to stay in her seat belt. She bothered the other children. Davidson required H.R. to sit in the front seat because he could not handle H.R. in the back of the van. Davidson admitted allowing the students, other than the "bigger kids," to sit on his lap.

Davidson denied that he had sexually molested anyone. In response, plaintiff presented two witnesses who testified Davidson had molested one of them at the age of 11 in the presence of the other, who was then 7 years old.

According to Davidson, he reported H.R.'s behavioral problems. He wrote up discipline slips (school bus incident reports) until the bus supervisor, William T. Benjamin, told him not to. Davidson stated Benjamin said that Burns did not like the slips to be written up. Davidson complained to Nelda Treadwell, manager of S.T.S., quite a bit and was told to write up slips until something was done at the school. He stated, "That's why I was writing so many." According to Treadwell, Davidson [819 P.2d 595] should not have stopped but should have continued to turn them in. Even though the slips Davidson wrote up were not sent out, he wrote up more than any other driver.

Davidson testified that he reported the trouble he was having with the children to Treadwell, the dispatchers, Benjamin, and to Brown throughout the three semesters. Burns would hardly talk to the S.T.S. drivers, but Davidson did talk with Burns a time or two. Each time Burns "told him off" and hollered at him, [249 Kan. 357] saying that S.T.S. did not have any good drivers and that Burns was going to call Treadwell. Davidson responded,

"I says here's the radio. I got a little loud talking to him because he was just a hollering. I said here's the radio, she's there, call her, I'll talk to her on the phone. He never once ever called Treadwell to discuss the problems at all and he knew."

Nothing was done to help Davidson's problems.

Benjamin testified at trial. No one asked him about the failure to follow the discipline slip procedure. Benjamin explained that it is not uncommon for the affectionate TMH children to sit on the laps of their bus drivers while waiting for the bell. He observed that TMH children also commonly sit on the laps of teachers.

Burns also testified at trial, but was not asked if he knew slips were not being turned in. Burns recalled that Davidson had difficulty with the children and submitted school bus incident reports on numerous occasions. According to Burns, the school's copies of the incident reports concerning H.R. are no longer in existence because the school's file is purged at the end of each year.

The school bus incident reports are five-copy forms. A copy of the form is distributed to the parent, principal, bus contractor, driver, and district transportation department. Mrs. R. became aware of the incident reports after "all this happened" (after H.R. had explained her experiences with the bus driver). Mrs. R. received a report from a bus driver in March of 1988. Thurman Mitchell, a former Field Supervisor of Student Transportation Services, testified at trial that if he did not receive a copy of the report or did not receive a communication from parent or principal, he would have no way of knowing that a problem existed. A problem with Davidson was not brought to Mitchell's attention. Mitchell stated that had the circumstances concerning H.R. been brought to his attention, he would have requested a conference with the driver, the parents, and the school administration to resolve it.

H.R.'s teacher in the fall of 1987 believed H.R. was one of her brightest students. The teacher observed no evidence of academic regression and stated that H.R. had one of the highest progress rates of her students.

[249 Kan. 358] Foreseeability of Propensity to Sexually Molest--Summary Judgment--Directed Verdict

U.S.D. and S.T.S. appeal the denial of their motions for summary judgment and directed verdict on the issue of negligent retention and supervision of Davidson. They argue that they cannot be held liable for Davidson's intentional criminal act of sexual molestation unless they knew or should have known of Davidson's particular propensity to sexually molest. They reason that no evidence was presented which would allow the jury to find that either U.S.D. or S.T.S. knew or should have known of such a propensity. The trial court erred, they contend, in denying their motions for summary judgment and for a directed verdict and in refusing to specifically instruct on their knowledge of Davidson's propensity to sexually molest.

Amicus curiae Kansas Association of School Boards (KASB) endorses the U.S.D.-S.T.S. argument. In addition, KASB asserts that if we find the evidence in this case sufficient to make sexual molestation foreseeable, school districts will be forced to incur the expense of hiring school bus monitors.

Plaintiff asserts: (1) U.S.D. and S.T.S. may be liable if any harm to H.R. was foreseeable; (2) the precise injury sustained [819 P.2d 596] need not be foreseeable; (3) the issue of foreseeability is a question of fact for the jury; (4) the jury was properly instructed; and (5) the verdict is supported by the evidence. The plaintiff also contends that, even if the standard of foreseeability asserted by U.S.D. and S.T.S. is the proper standard, there is evidence that the sexual abuse of H.R. was foreseeable.

A party seeking summary judgment bears a heavy burden. We have repeatedly stated the rules controlling summary judgment. A recent recitation is found in Hammig v. Ford, 246 Kan. 70, 72-73, 785 P.2d 977 (1990).

When the denial of summary judgment is challenged on appeal, this court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).

In ruling on a motion for a directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn [249 Kan. 359] from the evidence in favor of the party against whom the ruling is sought. Where the evidence is such that reasonable minds could reach different conclusions, the motion must be denied and the matter submitted to the jury. On appeal, this court applies the same standard as the trial court. Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 (1987).

U.S.D., S.T.S., and the plaintiff rely on Hollinger v. Stormont Hosp. & Training School for Nurses, 2 Kan.App.2d 302, 578 P.2d 1121, rev. denied 225 Kan. 844 (1978). In Hollinger, plaintiff was injured when an employee of the defendant hospital attempted to play a prank on her. The employee's employment records indicated that his work was unsatisfactory. The hospital knew that the employee had a tendency to talk with others rather than complete his work; that he was careless in failing to return his equipment to storage areas; and that on one occasion a visitor to the hospital had fallen in an area where the employee was buffing the floor without displaying appropriate warning signs. Hollinger sued the hospital, relying on respondeat superior and negligent hiring, supervision, and retention. The trial court sustained the hospital's motion for summary judgment as to the issue of respondeat superior. Hollinger appealed from a verdict in favor of the hospital on the negligence issue, arguing that the negligent retention instruction was improper.

The Court of Appeals, in approving the trial court's negligent retention instruction, reviewed Kansas negligent retention case law. Following its review, the Hollinger court stated:

"The gist of instruction No. 3 is that there must be some causal relationship between the dangerous propensity or quality of the employee, of which the employer has or should have knowledge, and the injuries suffered by the third person; the employer must, by virtue of knowledge of his employee's particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of the continued employment of that employee; and the harm which results must be within the risk created by the known propensity for the employer to be liable." 2 Kan.App.2d at 307, 578 P.2d 1121.

The only other Kansas case on negligent hiring or retention is Plains Resources, Inc. v. Gable, 235 Kan. 580, 682 P.2d 653 (1984). In Gable, Higgins, an employee of defendant Empire Drilling Company (Empire), intentionally sabotaged one of plaintiff [249 Kan. 360] Plains Resources, Inc.'s (Plains) wells. The trial court found that Empire knew, or had reason to know, of Higgins' propensities and was liable under the theory of negligent retention of Higgins. The finding was based on Higgins' failure to maintain the equipment, his attitude, his comments toward Plains' personnel, and his statements of past criminal escapades. Higgins had informed Empire of his intended sabotage. We affirmed the trial court.

In the case at bar, the trial court gave the following negligent retention instruction:

"NO. 9

"All persons entrusted with children have a special responsibility to supervise their charges.

[819 P.2d 597] "An employer may be negligent when it has reason to know that an employee, because of his qualities, is likely to harm others. If the dangerous quality of the employee causes harm, the employer may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefor.

"Such an employer is not liable merely because the employee is incompetent or careless. If liability results, it is because, under the circumstances, the employer has not taken the care which a reasonable and prudent man would take in retaining the employee for the work at hand. What precautions must be taken depend upon the situation. One can normally assume that another who offers to perform simple work is competent and is not dangerous to others.

"Liability results under this rule not because of the employer-employee relationship of the parties, but only if the employer had reason to believe that an undue risk of harm would exist because of the employment. The employer is subject to liability only for such harm as is within the risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee which the employer had reason to suppose would be likely to cause harm. However, it is not necessary that the precise nature of the injury alleged by plaintiffs would have been foreseen by the employer.

"School authorities are required by law to exercise reasonable care and supervision for the safety of the children under their control.

"A school is required to act when a child, while in its charge, is threatened by a third party, and it must make reasonable efforts to avoid injury to the child.

"Teachers, school administrators, and school employees are required to report promptly any suspicion of sexual abuse to the department of social and rehabilitation services. The failure to do so is a violation of Kansas law and is negligence."

[249 Kan. 361] U.S.D. and S.T.S. objected to instruction No. 9. U.S.D. and S.T.S. submitted and requested the following instruction:

"If you find that plaintiff has met her burden of proof in establishing that defendant Specialized Transportation Services, Inc. was negligent, you must then decide whether such negligence was the cause of plaintiff's claimed injury. There must be some causal relationship between the claimed dangerous propensity or quality of defendant Davidson, of which his employer, Specialized Transportation Services, Inc. had or should have had knowledge, and the injuries suffered by plaintiff; Specialized Transportation Services, Inc. must, by virtue of knowledge of defendant Davidson's particular quality or propensity, have had reason to believe that an undue risk of harm existed to others as a result of the continued employment of defendant Davidson; and the harm which [is] claimed by plaintiff must be within the risk created by a known propensity in order for Specialized Transportation Services, Inc. to be liable. That is, plaintiff must prove that Specialized Transportation Services, Inc. knew or should have known that defendant Davidson had a propensity which created a risk that he would sexually molest [H.R.]."

U.S.D. and S.T.S. contend that their requested instruction was modeled after the language in Hollinger, 2 Kan.App.2d at 307, 578 P.2d 1121.

Instruction No. 9 given by the trial court in the instant case followed instruction No. 3 in Hollinger, which was approved by the Court of Appeals. Hollinger, 2 Kan.App.2d at 305-06, 308, 578 P.2d 1121.

We have stated the rules regarding appellate review of jury instructions in Bechard v. Concrete Mix & Construction, Inc., 218 Kan. 597, 600-01, 545 P.2d 334 (1976).

The trial court in the case at bar did not rule on the issue of the scope of foreseeability until after the close of evidence when the U.S.D.-S.T.S. motion for a directed verdict was denied. At that time, the trial court ruled that there was sufficient [819 P.2d 598] evidence to submit the case to the jury to determine whether it was foreseeable that Davidson would commit a battery on one of the students. The trial court apparently rejected the U.S.D.-S.T.S. contention that they would only be liable if they knew or should have known of Davidson's particular propensity to sexually molest.

In closing argument, U.S.D. and S.T.S. explained their interpretation of instruction No. 9 to the jury. U.S.D. and S.T.S. argued that before they could be found liable for H.R.'s injuries they had to have foreseen that Davidson had a propensity for sexual molestation and, thus, that children were at risk.

[249 Kan. 362] U.S.D. and S.T.S. rely on cases from other jurisdictions which they claim denied employer liability for sexual misconduct of an employee where there was no evidence that the employer knew of previous episodes of sexual misconduct: St. Paul Fire & Marine Ins. Co. v. Knight, 297 Ark. 555, 764 S.W.2d 601 (1989); Alma W. v. Oakland Unified School Dist., 123 Cal.App.3d 133, 176 Cal.Rptr. 287 (1981); Kane v. Hartford Accident & Indemnity Co., 98 Cal.App.3d 350, 159 Cal.Rptr. 446 (1979), Boykin v. District of Columbia, 484 A.2d 560 (D.C.1984); and Bozarth v. Harper Creek Bd. of Ed., 94 Mich.App. 351, 288 N.W.2d 424 (1979). We have reviewed these cases and found that they involve procedural, statutory, or factual distinctions that diminish their precedential value.

The trial court's analysis of the foreseeability issue in the case at bar was correct. The jury was instructed on battery. Thus, if Davidson's battery of H.R. was foreseeable, the employer, S.T.S., may be liable. When a third party asserts a negligent retention and supervision claim against an employer, liability results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor. The employer is subject to liability only for such harm as is within that risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee that the employer had reason to believe would be likely to cause harm. However, it is not necessary that the precise nature of the injury alleged by the third-party plaintiff would have been foreseen by the employer. Therefore, instruction No. 9 as it relates to the employee-employer relationship was proper. (The last paragraph of instruction No. 9 relates to U.S.D.'s duty to report child abuse and is discussed later in this opinion.)

Whether risk of harm is reasonably foreseeable is a question to be determined by the trier of fact. Only when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law. Robbins v. Alberto-Culver Co., 210 Kan. 147, Syl. p 5, 499 P.2d 1080 (1972).

U.S.D. and S.T.S. assert that there was no information whatsoever that Davidson had mistreated any of his student passengers. [249 Kan. 363] There was evidence that he was rude and temperamental to parents and teachers. U.S.D. and S.T.S. contend that the evidence is insufficient to establish foreseeability to commit a battery.

Plaintiff asserts that there was sufficient evidence to establish foreseeability. Plaintiff argues that Kim Brown, H.R.'s teacher, testified that she believed H.R.'s behavioral problems were a result of exposure to sexual conduct. Brown questioned Mrs. R. about this. Mrs. R. reported Davidson's behavior, which established that children on the bus were in a sphere of risk. Mrs. R. testified that Davidson called the children names and that he was "out of control."

According to Mrs. R., Brown stated that she thought Davidson was "emotionally disturbed." Principal Burns told Mrs. R. that he knew what the December 11, 1986, meeting was going to be about before Mrs. R. told him. Additionally, Burns told Pritchard that there was a possibility Davidson had molested H.R. before Mrs. R. told Burns about H.R.'s allegations. It may be inferred that Burns was able to foresee the harm before Mrs. R. told him.

[819 P.2d 599] This is a close case. We are not requiring clairvoyance in employers; however, viewing the evidence and all inferences in favor of plaintiff, the foreseeability of the risk of harm was a jury question. The trial court did not err in denying the U.S.D.-S.T.S. motions for summary judgment and directed verdict on this issue.

The Kansas Tort Claims Act--Discretionary Function

U.S.D. asserts that it should have been granted immunity under K.S.A. 75-6104(e), the "discretionary function" exception to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. (KTCA). U.S.D. argues that the day-to-day supervision and retention of Davidson as a school bus driver was based on individual judgment and the exercise of discretion unrelated to regulatory mandates of the Secretary of Transportation.

Plaintiff contends that the discretionary function exception was intended to protect "formulation of policy." Plaintiff asserts that U.S.D. established a supervisory scheme over the contracted transportation services through the school bus incident report procedure and that U.S.D. personnel circumvented this reporting [249 Kan. 364] procedure. Plaintiff reasons that the failure to follow established policy was a ministerial act not entitled to immunity under the discretionary function exception to the KTCA.

Amicus curiae KASB joins in U.S.D.'s argument that supervision and retention of employees is a discretionary function entitled to immunity under K.S.A. 75-6104(e).

The KTCA is an open-ended act making governmental liability the rule and immunity the exception. Nichols v. U.S.D. No. 400, 246 Kan. 93, 94, 785 P.2d 986 (1990).

K.S.A. 75-6103(a) provides:

"Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act of omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state."

In K.S.A. 75-6102(c), the term "governmental entity" is defined to include a school district. Employee does not include an independent contractor under contract with the governmental entity. K.S.A. 75-6102(d). Therefore, S.T.S. is not subject to the KTCA.

K.S.A. 75-6104 states in part:

"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:

....

"(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved." (Emphasis added.)

The burden is on the governmental entity to establish immunity under one of the exceptions in K.S.A. 75-6104. Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984).

We have considered the discretionary function exception in several cases. The discretionary function exception may be the most important exception to liability in the KTCA. (Prior to the 1987 amendment to K.S.A. 75-6104[d] [Ensley 1984], which added the phrase "and regardless of the level of discretion involved" in what is now K.S.A. 75-6104[e], the discretionary function exception was designated as subsection [d]. The 1987 amendment is not applicable to the instant case.)

[249 Kan. 365] In Robertson v. City of Topeka, 231 Kan. 358, 361-62, 644 P.2d 458 (1982), we rejected the "planning level-operational level test" and held that the determining factor was the nature and the quality of the discretion exercised rather than the status of the employee. The "nature and quality" test was set out in Downs v. United States, 522 F.2d 990 (6th Cir.1975), i.e., whether the act is of "the nature and quality" [819 P.2d 600] which Congress intended to put beyond judicial review. 522 F.2d at 997.

In Downs, an FBI agent's negligent handling of an airplane hijacking situation caused the deaths of plaintiffs' decedents. The agent's negligence consisted of his failure to follow specific procedures governing hijacking situations set forth in an FBI handbook. Downs held that the agent's acts were not of "the nature and quality" necessary for a discretionary function. The court reasoned that the mere exercise of some judgment cannot be the test for a discretionary function because "[j]udgment is exercised in almost every human endeavor." 522 F.2d at 995. Rather, a discretionary function must involve some element of policy formulation. The relevance of the FBI handbook was that the FBI had already made the policy determination about the proper procedures in hijacking situations, and thus the agent was not making policy in responding to this particular hijacking situation.

The more a judgment involves the making of policy the more it is of a "nature and quality" to be recognized as inappropriate for judicial review. Robertson held that police officers were exercising a discretionary function when they refused to remove a drunken trespasser from the owner's property. 231 Kan. at 362, 644 P.2d 458.

In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), Cansler, a police officer, sued the State for injuries resulting from the escape of dangerous prisoners from the penitentiary. No notice of the escape was given to law enforcement officers in neighboring communities. We reasoned that the duties to confine and notify are imposed by law and are ministerial. Thus, the State's failure to do so was not discretionary and it was not entitled to immunity.

The wife and children of James Fudge brought a wrongful death and survival action against an intoxicated driver and a municipality in Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986). Fudge was killed when his van collided with the intoxicated driver's car. It was alleged that prior to the collision, city [249 Kan. 366] police officers had encountered the intoxicated driver in a parking lot and negligently failed to prevent him from driving. The jury found the City 18% at fault. The City appealed, arguing in part that it was immune under the discretionary function exception of the KTCA. The police department had a standard operating procedure manual which detailed mandatory procedures for handling a variety of police situations. The police were also subject to a general order which provided that individuals who are incapacitated by alcohol and likely to inflict physical injury to themselves or others will be taken into protective custody. We held that the City had adopted a specific mandatory set of guidelines for police to use in handling intoxicated persons that left no discretion. The City was not immune under the discretionary function exception to the KTCA. 239 Kan. at 372-75, 720 P.2d 1093.

It is clear that failure to follow mandatory guidelines is not subject to immunity under the discretionary function exception to the KTCA. Fudge, 239 Kan. at 375, 720 P.2d 1093; Jackson, 235 Kan. at 289-90, 680 P.2d 877.

"Simply stated, our more recent cases hold that the discretionary function exception is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow." Dougan v. Rossville Drainage Dist., 243 Kan. 315, 322, 757 P.2d 272 (1988).

U.S.D. reasons that all the ministerial acts in K.A.R. 36-13-32, with respect to the employment of Davidson, were fulfilled. We agree. Plaintiff does not discuss K.A.R. 36-13-20 et seq.

K.A.R. 36-13-32 relates specifically to school bus driver qualifications. Review of K.A.R. 36-13-32 indicates that Davidson was a qualified bus driver. However, the negligent hiring claim was disposed of by the trial court's ruling prior to trial and is not in issue.

The U.S.D.-S.T.S. contract addressed pupil discipline:

[819 P.2d 601] "Pupil Discipline. The Operator and its drivers shall maintain careful supervision over all passengers for their safety in riding, loading, or unloading from all vehicles. Drivers shall make prompt written reports to the Principal or principal's designee of the names and manner of conduct of any pupils who are undisciplined or conduct themselves in such a manner as to cause serious disturbance or otherwise create a hazard to the safety and convenience of other passengers, themselves, or the operator of the vehicle. Drivers shall not discipline pupils." (Emphasis added.)

[249 Kan. 367] Plaintiff asserts that U.S.D. failed to follow the school bus incident report procedure. The report form is entitled, "School Bus Incident Report to Parents." The initial language states:

"Dear Parents:

"The purpose of this report is to inform you of an incident which occurred on the bus and involved your son/daughter. This incident may have jeopardized the safety and well-being of all the pupils riding the bus. You are urged to appreciate the actions taken by the bus driver and the school personnel in their attempt to resolve the problem. You are further urged to cooperate in our efforts to help your child understand the necessity for good conduct while getting to and from school."

Plaintiff argues that U.S.D. failed to follow its bus incident reporting policy. Davidson testified that he was told not to fill out so many reports. Treadwell testified that when Davidson reported he had been told not to fill out so many reports she advised him to fill the reports out anyway. The record supports plaintiff's contention that U.S.D. failed to follow the established reporting procedure.

U.S.D. procedures called for Mitchell to receive a copy of the disciplinary slip. If he noticed five or six slips in a given period of time he might investigate. Mitchell would advise drivers not to listen to school principals or to bus supervisors if they told the driver not to fill out the slips. He testified that if a driver could not handle the student on a continuing basis, the driver was switched off the route. Mitchell would have switched a driver if the problems had been continuing for over three semesters. Mitchell would have attempted to hold a conference with the driver, the parents, and the school administration to resolve the problem.

Dr. Melhorn, the pediatrician who examined H.R., testified that H.R. told her the molestation occurred more than once. According to plaintiff's expert Dr. Milner, a psychologist, the molestation occurred over a period of nine months to a year. Helen Swan, a social worker in the area of child abuse, expressed the opinion, based on her evaluation, that the sexual abuse of H.R. continued for approximately a year.

One copy of the bus incident report was to go to the parent. H.R. finally told her mother of the molestation when her mother asked H.R. why H.R. would not behave on the bus. The jury [249 Kan. 368] could have reasoned that H.R. would have told Mrs. R. sooner if U.S.D. had followed its bus incident reporting procedure by forwarding the parents' copy of Davidson's incident reports involving H.R. to her mother.

The testimony indicates that had the school bus incident reporting procedure been followed, some type of remedial action may have been taken.

The development of the bus incident reporting scheme was a discretionary act involving policy formulation. What is important is that U.S.D.'s personnel failed to follow the required reporting procedure. The policy determination to implement the reporting procedures had already been made. U.S.D.'s personnel were not making policy when they decided not to follow the required reporting procedure. Under the facts in the case at bar, it was for the jury to determine whether U.S.D. would have been alerted to the danger if the reports had been made and distributed as required.

U.S.D. cites cases from other jurisdictions which hold that hiring, supervising, and retaining school employees are discretionary functions. Doe "A" v. Special Sch. Dist. of St. Louis County, 637 F.Supp. 1138 (E.D.Mo.1986); Rosacrans v. Kingon, [819 P.2d 602] 154 Mich.App. 381, 397 N.W.2d 317 (1986), lv. to appeal denied 428 Mich. 862, 400 N.W.2d 594 (1987); Willoughby v. Lehrbass, 150 Mich.App. 319, 388 N.W.2d 688 (1986); and Kimpton v. New Lisbon School Dist., 138 Wis.2d 226, 405 N.W.2d 740 (Ct.App.1987).

Each case is distinguishable from the case at bar. None of the U.S.D.-S.T.S. authorities are controlled by legislative enactments similar to the KTCA "open ended" concept of liability. In addition, none of the cited cases involve the failure of a school district to follow established procedures.

U.S.D. relies on our recent decision in Hackler v. U.S.D. No. 500, 245 Kan. 295, 777 P.2d 839 (1989). Hackler involved a personal injury claim by a minor for injuries sustained when crossing the street from his home. The student had been let off at a school bus stop. The defendant school district advanced the KTCA discretionary function exception of K.S.A. 75-6104(e) as a defense. We affirmed the trial court's reasoning that the district had not breach any duty owing to Hackler. We did not determine the discretionary function issue.

[249 Kan. 369] The trial court, in the case at bar, was correct in ruling that U.S.D. is not entitled to immunity under the K.S.A. 75-6104(e) discretionary function exception to the KTCA.

The Mandatory Child Abuse Reporting Statute

The trial court gave the following instruction (the last paragraph of instruction No. 9) over U.S.D.'s objection: "Teachers, school administrators, and school employees are required to report promptly any suspicion of sexual abuse to the department of social and rehabilitation services. The failure to do so is a violation of Kansas law and is negligence."

U.S.D. challenges the propriety of giving this instruction, reasoning the instruction was contrary to: (1) the pretrial order; (2) the uncontroverted evidence that sexual abuse was not suspected; (3) the discretionary function exception to the KTCA; and (4) the reporting statute, K.S.A.1990 Supp. 38-1522, which grants no private right of action. (Plaintiff's claim under the child abuse reporting statute is against U.S.D. only.)

Plaintiff counters with two arguments. First, plaintiff explains that there is no specific finding the jury relied on this instruction to find U.S.D. negligent. Plaintiff suggests there was ample evidence of the breach of other duties which would explain the verdict. Second, plaintiff contends K.S.A.1990 Supp. 38-1522 creates a private civil cause of action. K.S.A.1990 Supp. 38-1522 establishes a duty for school teachers and administrators to report all suspicions of child abuse. Plaintiff reasons the reporting duty benefits children as a specific segment of the public intended to be protected by the statute and argues the criminal penalty provided in K.S.A.1990 Supp. 38-1522(f) is ineffective because of problems proving a willful and knowing violation. Plaintiff asserts that Brown was sufficiently suspicious of sexual abuse to question H.R.'s mother about sexual activity in the home. Thus, according to plaintiff, there was evidence of unreported suspicion. An examination of the record reflects that Brown knew Mrs. R. was divorced and wondered if Mrs. R. was dating. Brown spoke with Mrs. R. about her recent divorce and about changes going on in the home. Brown testified she did not suspect abuse.

Plaintiff does not address the U.S.D.-S.T.S. argument that the instruction was beyond the pretrial order.

[249 Kan. 370] Amicus curiae Kansas Child Abuse Prevention Council (KCAPC) joins in plaintiff's argument asserting that K.S.A.1990 Supp. 38-1522 does grant a private cause of action. KCAPC contends that the statute provides protection for the benefit of a class, or individuals of a class, i.e., abused children.

K.S.A.1990 Supp. 38-1522 provides in part:

"(a) When any of the following persons has reason to suspect that a child has been injured as a result of physical, [819 P.2d 603] mental or emotional abuse or neglect or sexual abuse, the person shall report the matter promptly as provided in subsection (c) or (e): ... teachers, school administrators or other employees of a school which the child is attending.... The report may be made orally and shall be followed by a written report if requested....

....

"(f) Willful and knowing failure to make a report required by this section is a class B misdemeanor."

The omitted portions of subsection (a) describe other persons who are required to report suspected abuse. These persons may be categorized generally as licensed professionals. Subsection (b) states that any other person may report suspected abuse.

K.S.A. 38-1526 grants immunity from liability for persons who make such reports without malice.

U.S.D. first contends that the discretionary function exception of the KTCA protects school employees who exercise judgment and discretion in evaluating behaviors of children to attempt to identify a possible extrinsic source of behavior problems. For this reason, sanctions should only be imposed if the failure to report is "willful and knowing."

In the case at bar, the trial court rejected the argument, ruling that reporting suspected child abuse is a ministerial act, not a discretionary function, under the KTCA.

U.S.D. also contends that K.S.A.1990 Supp. 38-1522 does not provide a private right of action. We agree and, consequently, need not address the discretionary function issue in the context of reporting suspected child abuse.

The relevant portion of instruction No. 9 indicated that violation of K.S.A.1990 Supp. 38-1522 is negligence per se. However, violation of a statute alone does not establish negligence per se. The plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the legislature. [249 Kan. 371] Statutes enacted to protect the public, therefore, do not create a duty to individuals injured as a result of a statutory violation. Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 125, 804 P.2d 978 (1991).

Generally, the test of whether an individual right of action exists for violation of a statute is whether the legislature intended to give such a right. In the absence of express provisions, the legislative intent to grant or withhold such a right is determined primarily from the language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. Greenlee v. Board of Clay County Comm'rs, 241 Kan. 802, 804, 740 P.2d 606 (1987).

Michigan's Child Protection Law, Mich.Comp.Laws § 722.621 et seq. (1979), requires persons who have reasonable cause to suspect child abuse to report to authorities. The statutes specifically provide that failure to do so may result in civil liability. Mich.Comp.Laws § 722.633 (1979). Rosacrans v. Kingon, 154 Mich.App. at 387-88, 397 N.W.2d 317.

The following cases have held that no private cause of action exists for violation of mandatory child abuse reporting statutes: Thelma D. v. Board of Educ. of City of St. Louis, 669 F.Supp. 947 (E.D.Mo.1987) (following Doe "A" v. Special Sch. Dist. of St. Louis County, 637 F.Supp. 1138); Fischer v. Metcalf, 543 So.2d 785 (Fla.Dist.App.1989) (en banc ); and Borne v. N.W. Allen County School Corp., 532 N.E.2d 1196 (Ind.App.1989). See Annot., 73 A.L.R.4th 782, § 11[b].

Our research has indicated only one jurisdiction which has held that a mandatory child abuse reporting statute impliedly grants a private right of action. Landeros v. Flood, 17 Cal.3d 399, 131 Cal.Rptr. 69, 551 P.2d 389 (1976). See Annot., 73 A.L.R.4th 782, § 11[a].

In Landeros, 17 Cal.3d 399, 131 Cal.Rptr. 69, 551 P.2d 389, the minor plaintiff, who had been abused by her mother and her mother's common-law husband, sued a doctor for failure to report suspected child [819 P.2d 604] abuse. The doctor had treated the minor plaintiff in an emergency room (comminuted spiral fracture of the right tibia and fibula, bruises over entire back, superficial abrasions on other parts of the body, and nondepressed linear fracture of skull--all symptomatic of the [249 Kan. 372] medical condition known as the battered child syndrome). The California Supreme Court held that a private cause of action exists for intentional violation of the reporting statute. The court stated: "If plaintiff wishes to satisfy that requirement [violation of statute], it will be necessary for her to persuade the trier of fact that defendant Flood (the treating doctor) actually observed her injuries and formed the opinion they were intentionally inflicted on her." 17 Cal.3d at 415, 131 Cal.Rptr. 69, 551 P.2d 389.

U.S.D. submits that no private cause of action was intended by the legislature and that we should not create one. Legislative creation, rather than judicial creation, is a persuasive policy argument.

K.S.A. 38-1521 states:

"It is the policy of this state to provide for the protection of children who have been subject to physical, mental or emotional abuse or neglect or sexual abuse by encouraging the reporting of suspected child abuse and neglect, insuring the thorough and prompt investigation of these reports and providing preventive and rehabilitative services when appropriate to abused or neglected children and their families so that, if possible, the families can remain together without further threat to the children."

The purpose of the reporting statute is to provide for the protection of children who have been abused by encouraging the reporting of suspected child abuse and by insuring the thorough and prompt investigation of such reports. There is no express indication of legislative intent to impose any liability for failure to report. The decision to report suspected abuse should be based on something more than suspicion.

The Indiana Court of Appeals in Borne, a case involving sexual abuse of a special education elementary school girl by classmates during a school field trip, considered the reporting issue. In holding that no private cause of action existed for failure to report, the Indiana court stated:

"When the provisions of the act are considered as a whole, there is no apparent intent to authorize a civil action for failure of an individual to make the oral report that may be the means of initiating the central procedures contemplated by the act. Furthermore, such an action is not authorized at common law and its maintenance would raise substantial questions of causation since the failure would not in the direct sense be a proximate cause of the injury to the child. It would, we believe, misdirect judicial time and attention from the very real problems of children in need of services in [249 Kan. 373] favor of pursuing collateral individuals, who are presumably capable of responding in money damages, on the ground that they knowingly failed to make an oral report. We concluded that was not within the legislative purpose of the act." 532 N.E.2d at 1203.

If the legislature had intended to grant a private right of action in K.S.A. 38-1522 it would have specifically done so. The statute was revised in 1983, 1985, 1986, 1987, and 1988. The legislature has not utilized the amendment opportunities to add a private cause of action. No private cause of action exists under K.S.A.1990 Supp. 38-1522. The child abuse reporting portion of instruction No. 9 should not have been given.

Did the giving of the instruction result in prejudicial error? Under the facts of this case, we think not.

The objectionable portion of instruction No. 9 related only to U.S.D. The judgment entered against U.S.D. is to be paid by S.T.S. because U.S.D. prevailed on its cross-claim for indemnification against S.T.S. If the case were remanded for retrial any alteration in the percentages of negligence (70% U.S.D.--30% S.T.S.) would not affect the total of 100% to be assessed between the two defendants. S.T.S., under the indemnification agreement cross-claim judgment, would be responsible for payment [819 P.2d 605] of the amount awarded against U.S.D. upon retrial.

Comparison of Fault

The jury returned the verdict form, which provides in part:

"1. Did H. Ardon Davidson commit a battery upon [H.R.]?
     Yes                   X               No
             --------------                  --------------
     (Number of jurors in agreement                               10          )
                                                             ------------
"2. If you answer Question # 1, 'yes,' do you find that such battery occurred
  at least in part due to the acts or omissions of Specialized Transportation
  Services, Inc., and/or Unified School District 259?
     "Yes                  X         No
             --------------                  --------------
     "(Number of jurors in agreement                              11          )
                                                             ------------
"3. If you answer question # 2 'yes,' then considering the fault of Specialized
  Transportation Services, Inc., and Unified School District 259 at one hundred
  percent, what percentage of the fault is attributable to each of them?
     Specialized Transportation Services, Inc.  (0% to 100%)       30%
                                                             ------------
     Unified School District 259 (0% to 100%)                     70%
                                                             ------------
                             Total                               100%
                                                             ------------
     "(Number of jurors in agreement                            11     )"
                                                             ------------
     (Emphasis added.)

[249 Kan. 374] Judgment was entered against Davidson for $1,800,000, the total amount of the jury verdict. Judgment was entered against S.T.S. for $540,000 (30% of the total verdict) and against U.S.D. for $1,260,000 (70% of the total verdict).

U.S.D. and S.T.S. argue the trial court erred in failing to instruct the jury to compare their fault (negligence) with Davidson's fault (intentional). U.S.D. and S.T.S. assert that the trial court's refusal to instruct as requested is inconsistent with the principle that negligent tortfeasors shall not be liable for more than their fair share of the loss. See Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). U.S.D. and S.T.S. also contend that comparison of intentional acts and negligent acts is an issue of first impression in Kansas. Amicus curiae Kansas Association of Defense Counsel (KADC) supports the U.S.D.-S.T.S. argument.

Plaintiff disagrees with the assertion that the comparative fault issue is one of first impression. Plaintiff reasons that we have refused to compare the fault of negligent tortfeasors with that of intentional tortfeasors, citing Gould v. Taco Bell, 239 Kan. 564, 722 P.2d 511 (1986), and M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, 675 P.2d 864 (1984). Plaintiff's analysis is correct.

Plaintiff also asserts that allowing U.S.D. and S.T.S. to compare their fault with Davidson would allow an intentional tortfeasor to reduce his/her share of damages. Plaintiff misconstrues the U.S.D.-S.T.S. argument. U.S.D. and S.T.S. are not arguing that Davidson's fault should be reduced under comparative negligence.

Amicus curiae Kansas Trial Lawyers Association (KTLA) reasons that M. Bruenger and Gould control and should be upheld. KTLA suggests that it would be unfair to allow the intentional act of one defendant to be compared with the negligent act of a defendant whose duty it is to protect the plaintiff from the act committed by the intentional tortfeasor.

In M. Bruenger, the plaintiff's truck was stolen due to the negligence of a bailee, defendant Dodge City Truck Stop. The trial court allowed the jury to compare the negligence of the bailee with the fault of the thief. We reversed and held the trial court erred in allowing the comparison. We ruled that a bailee [249 Kan. 375] is required to exercise reasonable care to prevent the theft. The harm is complete when the theft occurs. 234 Kan. at 687, 675 P.2d 864.

In Gould, a customer of Taco Bell was injured by another patron, and Taco Bell's manager negligently delayed rendering assistance to him. The trial court denied Taco Bell's motion to join the intentional tortfeasor for fault comparison purposes. The trial court in Gould reasoned that intentional acts of a third party cannot be compared with the negligent acts of a defendant whose duty it is to protect the plaintiff from the intentional acts committed [819 P.2d 606] by the third party. We agreed. Taco Bell attempted to distinguish M. Bruenger, asserting that M. Bruenger is limited to a bailment situation. We disagreed. Justice Herd, speaking for the court, stated:

"[W]e are not comparing apples and oranges. We look to the nature of the duty owed in each instance. A bailee owes a duty of reasonable and ordinary care to prevent the theft of bailed property. The premises owner owes a duty to use reasonable and ordinary care for the safety of invitees. The duty is the same in both cases. Accordingly, our holding in M. Bruenger is applicable to the present case and the trial court did not err in denying appellant's motion to join Karen Brown [the intentional actor] as an additional party to the action." 239 Kan. at 571, 722 P.2d 511.

U.S.D., S.T.S., and amicus curiae KADC rely on two law review articles. Westerbeke, Survey of Kansas Law: Torts, 33 Kan.L.Rev. 1 (1984); Westerbeke and Robinson, Survey of Kansas Tort Law, 37 Kan.L.Rev. 1005 (1989).

In 33 Kan.L.Rev. 1, Professor Westerbeke agreed with the Court of Appeals' refusal to provide a proportionate fault reduction of the intentional tortfeasors' liability in Lynn v. Taylor, 7 Kan.App.2d 369, 642 P.2d 131 (1982). However, he stated that the imposition of joint and several liability on the negligent tortfeasor is unsound. Westerbeke proposed a "hybrid" approach, stating:

"A third, and arguably preferable, choice involves a hybrid approach in which the intentional tortfeasors are jointly and severally liable for the total amount of damages, but the negligent tortfeasor is liable only for that portion of the total damages representing his proportionate fault." 33 Kan.L.Rev. at 33.

M. Bruenger and Gould have been criticized by use of the following hypothetical situation:

[249 Kan. 376] "Assume that a visibly intoxicated third person in the restaurant negligently stumbles into and knocks down one guest, then intentionally pushes down another guest. In each case the restaurant breached its duty in the same manner--by failing to remove the intoxicated person from the premises before he harmed a guest. The results, however, vary. The restaurant is liable for only a proportionate fault share of the damages suffered by the first guest, but is jointly and severally liable for all damages suffered by the second guest." 37 Kan.L.Rev. at 1049.

No judicial authority in support of the hybrid approach has been cited by U.S.D., S.T.S., or amicus curiae KDAC, or in the articles relied on by the parties. We acknowledge the contradiction in the "restaurant guest" example.

We have considered the "hybrid approach" but elect to follow the precedential path marked by M. Bruenger and Gould.

The asserted U.S.D.-S.T.S. act of negligence in the case at bar was the failure to prevent Davidson from committing the intentional act of battery. We note that the verdict form required linkage between the intentional act of Davidson and U.S.D.-S.T.S. before consideration of any percentage of fault attributable to U.S.D.-S.T.S. Negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent.

Application of the $500,000 K.S.A. 75-6105

Maximum Liability Provision

U.S.D. and S.T.S. entered into a "Pupil Transportation Services Agreement." Under this agreement, U.S.D. required S.T.S. to obtain insurance with the following liability limits:

"A. Minimum liability coverage: Bodily injury liability in an amount not less than $500,000 for each person; in an amount not less than $1,000,000 for each occurrence; and in an amount not less than $500,000 for property damage for each student.

"B. Excess liability insurance coverage with minimum limits of $1,000,000 per occurrence."

The agreement also provided:

[819 P.2d 607] "The District, its employees, agents, and members of the Board of Education, shall be named as additional insureds on the Operator's aforementioned insurance policies.

....

"The purchase of insurance by the Operator shall not constitute a waiver of exemption from liability of the District under the Kansas Tort Claims [249 Kan. 377] Act, K.S.A. § 75-6101 et seq. The Operator or its Employees are not and shall not be considered agents or employees of the District. The Operator is and shall be considered an independent contractor."

The agreement also included a hold harmless indemnification clause which required S.T.S. to indemnify U.S.D. for any loss arising from operations connected with the agreement. S.T.S. purchased the required insurance naming both U.S.D. and the City of Wichita as additional insureds. No additional premium was charged for adding U.S.D., its employees, agents, and board members. The policy issued to S.T.S. by Insurance Company of North America did not limit the amount of coverage extended to U.S.D. to $500,000. No distinction as to coverage was made between S.T.S. as an insured and U.S.D. and its employees, agents, and board members as additional insureds. U.S.D. purchased its own liability policy from a different carrier with a limit of $500,000.

K.S.A. 75-6105(a) states: "Subject to the provisions of K.S.A. 75-6111 and amendments thereto, the liability for claims within the scope of this act shall not exceed $500,000 for any number of claims arising out of a single occurrence or accident."

K.S.A. 75-6111 provides in part:

"With regard to claims pursuant to the Kansas tort claims act, insurers of governmental entities may avail themselves of any defense that would be available to a governmental entity defending itself in an action within the scope of this act, except that the limitation on liability provided by subsection (a) of K.S.A. 75-6105 and amendments thereto shall not be applicable where the contract of insurance provides for coverage in excess of such limitation in which case the limitation on liability shall be fixed at the amount for which insurance coverage has been purchased...." (Emphasis added.)

At the hearing to formalize the journal entry, Insurance Company of North America (the S.T.S. carrier) and Pacific Employers Insurance Company (the U.S.D. carrier), appeared as intervenors. Counsel for the intervenors carried the U.S.D.-S.T.S. argument that the judgment against U.S.D. should be limited in the amount of $500,000. The movants (U.S.D., S.T.S., and the two insurance companies) acknowledged K.S.A. 75-6111 but argued that the statute required that U.S.D. actually purchase the insurance with public funds. In the case at bar, the movants contend U.S.D. only purchased $500,000 in coverage (the Pacific Employers policy) [249 Kan. 378] while S.T.S. purchased the $2,000,000 policy (Insurance Company of North America). The movants also contend that the provision in the U.S.D.-S.T.S. agreement, which provided that purchase of insurance by S.T.S. shall not constitute a waiver of exemption from liability under the KTCA, is significant. The movants argued that the indemnity agreement was not intended to waive the liability limit.

The intervening insurance companies are not before us on appeal.

The trial court ruled there was insurance in excess of $500,000 and the limitation was waived. The journal entry on the cross-claim entered judgment for U.S.D. against S.T.S. for $1,260,000 (70% of the total judgment of $1,800,000).

U.S.D.-S.T.S. assert that the requirement in the agreement that S.T.S. purchase insurance naming U.S.D. as an additional insured was to secure U.S.D.'s general right to indemnity also granted under the agreement. U.S.D.-S.T.S. contend that under K.S.A. 75-6111(a) the $500,000 liability limit is waived only if U.S.D. purchases insurance with coverage exceeding $500,000.

U.S.D. advances the policy argument that if the action taken in the case at bar is construed as a "purchase of insurance" constituting a waiver of the K.S.A. 75-6105(a) maximum liability provision, [819 P.2d 608] government entities will insist that their contractors limit liability coverage to $500,000. U.S.D. reasons that public policy and citizen interests are promoted by insisting that private contactors insure themselves according to the risk without fear that the government entity will waive the liability limit.

Amicus curiae KASB joins in U.S.D.'s policy arguments. We acknowledge the U.S.D.-amicus policy concerns; however, in our view, the expressed apprehension is more imagined than real.

The U.S.D.-S.T.S. arguments are not persuasive. First, we note the language of the agreement relied on by U.S.D. and S.T.S. states that the purchase of insurance by S.T.S. shall not constitute a waiver by U.S.D. of its liability exemptions under the KTCA. The KTCA liability exemptions are set out in K.S.A. 75-6104 (see paragraphs [a] legislative function, [b] judicial function, [c] law enforcement, [e] discretionary function, and others enumerated in the statute). The K.S.A. 75-6105 $500,000 limit on liability and the reference in K.S.A. 75-6111 to a contract of [249 Kan. 379] insurance in excess of the $500,000 limit do not refer to KTCA liability exemptions but to monetary limits on liability exposure. The U.S.D.-S.T.S. reliance on the language of the agreement to support their $500,000 limit argument is misplaced.

Second, U.S.D. and S.T.S. overlook the statutory language of K.S.A. 75-6111, which states, "[A] governmental entity may obtain insurance...." (Emphasis added.) In the case at bar U.S.D. obtained insurance by contractual requirement. One of the S.T.S. obligations was the purchase of insurance to cover U.S.D. as an additional insured. The U.S.D.-S.T.S. emphasis on the word "purchase" is not compelling. U.S.D. prudently sought to cover any liability exposure it might have arising from the S.T.S. transportation agreement. U.S.D. contracted for a hold harmless indemnification from S.T.S. and for insurance coverage on the S.T.S. policy as an additional insured. S.T.S. complied with the terms of the agreement. U.S.D. received what it contracted for.

The $2,000,000 limit on U.S.D. liability as an additional insured applies only to claims arising under the S.T.S. transportation agreement. The public policy apprehension voiced by U.S.D. and amicus KASB is dispelled by insuring the district for $500,000, as an additional insured, and thus, limiting the district to the K.S.A. 75-6105 $500,000 liability.

The trial court did not err in refusing to limit the judgment against U.S.D. to $500,000.

The Damage Verdict

The trial court gave the following instruction concerning damages:

"NO. 12

"If you find for [H.R.], you will then determine the amount of her recovery. You should allow the amount of money as will reasonably compensate her for her injuries and losses resulting from the occurrence in question, including any of the following shown by the evidence.

"1. Pain, suffering, disabilities and any accompanying mental anguish suffered by [H.R.] to date and those she is reasonably expected to experience in the future;

"2. The reasonably necessary increased cost of supervised living expenses, reduced to present value; and

"3. Loss of income which is reasonably certain to be lost in the future, reduced to present value.

[249 Kan. 380] "In arriving at the amount of your verdict, you should consider [H.R.'s] age; condition of health, before and after; and the nature, extent, and duration of the injuries. For such items as pain, suffering, disability, and mental anguish, there is no unit value and no mathematical formula the court can give you. You should award such sum as will fairly and adequately compensate her, the amount to be awarded resting within your sound discretion.

"The total amount of your verdict may not exceed $5,000,000.00, the amount of plaintiff's claim."

The jury returned a special verdict form:[819 P.2d 609] "4. If the answer to either of the above is 'yes', what are [H.R.'s] damages in each of the following categories?

(A)  Pain and suffering                                            $200,000
                                                                   --------
(B)  Pain and suffering reasonably expected to be sustained in     $100,000
       the future
                                                                   --------
(C)  Disability to date                                            $100,000
                                                                   --------
(D)  Disability reasonably expected to be sustained in the future  $100,000
                                                                   --------
(E)  Mental anguish to date                                        $200,000
                                                                   --------
(F)  Mental anguish in the future                                  $100,000
                                                                   --------
(G)  Increased cost of housing in the future                       $700,000
                                                                   --------
(H)  Future wage loss                                              $300,000
                                                                   --------
"(Number of jurors in agreement                                    11        )"
                                                                   --------

U.S.D. and S.T.S. assert: (1) The evidence supporting the $200,000 award for pain and suffering was insufficient; (2) there was no evidence to support an award for future pain and suffering, disability to date, future disability, mental anguish to date, and future mental anguish; and (3) the $700,000 award for increased housing costs in the future and the $300,000 future wage loss award were based on speculation.

Plaintiff asserts that a prima facie case on these damage elements was presented to the jury.

Plaintiff's counsel initially told the jury that plaintiff was not seeking damages for pain and suffering and mental distress; however, counsel later informed the jury that plaintiff did suffer these items of damages. The trial court so instructed, and the jury awarded damages on these items. Counsel's earlier remarks do not bar recovery.

In an action for personal injuries, the trial court should instruct the jury only on those items of damages upon which there is [249 Kan. 381] some evidence to base an award. Bridges v. Bentley, 244 Kan. 434, 441, 769 P.2d 635 (1989).

Ordinarily, the assessment of damages in a personal injury action is exclusively the province of the jury. Germann v. Blatchford, 246 Kan. 532, 537, 792 P.2d 1059 (1990).

When a verdict is attacked on the ground that it is contrary to the evidence, this court does not reweigh the evidence. If the evidence with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the successful party below, will support the verdict, we should affirm. Tice v. Ebeling, 238 Kan. 704, 708, 715 P.2d 397 (1986).

A review of the special verdict form and the record indicates that there is evidence to support the elements of damage on the special verdict form, with the exception of the category of future pain and suffering.

(A) Pain and Suffering

H.R. told Detective Pamela Horn and Social Worker Dan Crask of EMCU that she cried when Davidson "poked" her. Plaintiff's expert, Social Worker Helen Swan, testified that H.R. said she cried when Davidson "poked" her. Swan said that this was her way of saying the event was painful. Both Swan and Dr. Milner were of the opinion that the abuse occurred over an extended period of time--nine months to a year.

Although the evidence was minimal and the award generous, the record supports this element of damage.

(B) Future Pain and Suffering

There is no evidence in the record to support this element of damage. The only evidence of future suffering relates to future mental anguish, a separate element of damages.

(C) Disability to Date and (D) Future Disability

Dr. Milner testified that H.R. was progressing until kindergarten, then her improvement stopped. H.R. is now regressing intellectually. The early years for those affected by Down's syndrome are [819 P.2d 610] very important for development. If H.R. does not "catch up" with her prior rate of development, which does not appear likely at this point, H.R. will have to be in a structured [249 Kan. 382] environment of some sort. Dr. Milner also testified that H.R. is suffering from post-traumatic stress syndrome and the symptoms are continuing to occur. Dr. Milner believed that H.R. will not recover from this trauma for a considerable length of time.

(E) Mental Anguish to Date and (F) Mental Anguish in the Future

Dr. Milner testified that H.R. talked, with a lot of anxiety, about the bus driver. H.R. spontaneously began to masturbate in front of Dr. Milner at the mention of the bus driver. Children do not normally masturbate in public unless there is anxiety about something they are talking about. Depression and anxiety were apparent in H.R. earlier, but are not so much a problem now.

According to Swan, H.R. showed a lot of embarrassment, guilt, anger, and anxiety. Swan observed that H.R. showed signs of long-term damage. Because H.R. was (1) penetrated rather than just fondled, (2) threatened and told not to tell, and (3) abused for approximately a year, Swan testified that H.R. "comes up" on the severe side of trauma. H.R. still has extensive emotional damage and still suffers from the trauma.

(G) Increased Cost of Housing in the Future

Dr. Milner's opinion was that H.R. might have been a candidate for independent living when she reached adulthood before this trauma occurred. Dr. Milner reasoned that, if H.R. does not progress and if the sexualized and aggressive behavior continues, H.R. will have to be in a restrictive environment of some sort. The worst-case scenario is a hospital setting.

Michael Strouse, Executive Director of Community Living Opportunities Inc., which provides services to mentally retarded people, testified for plaintiff regarding the cost of supervised living. Strouse stated that the cost of a semi-independent group home would be $30-$60 per day. The cost of 24 hour supervision which may be required for a Down's syndrome individual exhibiting excessive aggressiveness and excessive masturbation, would be $150 to $225 per day.

An economist, John Morris, appeared for plaintiff. Morris calculated the present value of the increased cost of care of H.R. from age 18 to her life expectancy of age 50. He used a figure [249 Kan. 383] of $100 per day as increased cost of care and estimated the present value at $1.2 million.

(H) Future Wage Loss

Dr. Milner acknowledged that H.R. would not be able to work in a sheltered workshop if she could not control her aggressive and sexualized behavior. Dr. Milner did not know whether this behavior could be controlled, but all attempts so far have not worked.

Morris calculated the present value of estimated loss of earnings at $200,000 to $300,000. He based this estimate on a 40-hour work week using two levels of minimum wage, $3.35 per hour and $4.55 per hour, and on a life expectancy of age 50.

The awarded elements of damages and amounts are supported by the evidence with the exception of future pain and suffering ($100,000).

Evidence of mental suffering generally should not be considered to support an award of future pain and suffering (which should be limited to physical pain and suffering) when the verdict form also provides a category for mental anguish. See Leiker v. Gafford, 245 Kan. 325, 342, 778 P.2d 823 (1989).

It appears the trial court submitted the K.S.A. 1990 Supp. 60-249a itemized verdict form to the jury. The jury is to be instructed only on the items of damages upon which there is evidence to base an award. K.S.A. 1990 Supp. 60-249a(c). There is no evidence of future pain and suffering (special verdict form, item [B]. The verdict is reduced by $100,000. See [819 P.2d 611] Williams v. Withington, 88 Kan. 809, 816, 129 Pac. 1148 (1913).

We have held, in an action for unliquidated damages, that a plaintiff must either consent to a reduced verdict or receive a new trial. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 276, 553 P.2d 254 (1976). Under the facts of this case, the use of the itemized verdict form negates our traditional requirement of plaintiff's consent to a reduced verdict.

Davidson did not appeal. Plaintiff's judgment against Davidson is not affected by the instant appeal.

We remand to the trial court to enter judgments:

(1) For plaintiff against S.T.S. and U.S.D. in the amount of $1,700,000.

[249 Kan. 384] (A) For plaintiff against S.T.S. in the amount of $510,000.

(B) For plaintiff against U.S.D. in the amount of $1,190,000.

(2) For U.S.D. against S.T.S. on the U.S.D. cross-claim in the amount of $1,190,000.

Affirmed in part, reversed in part, and remanded.

HOLMES, C.J., not participating.

LOCKETT, Justice, concurring and dissenting:

I respectfully dissent from the majority's determination that K.S.A. 1990 Supp. 38-1522 does not provide a private right of action.

I must again dissent from the majority's departure from our prior decisions and the common law by determining the legislature did not intend to grant a private right of action when enacting K.S.A. 1990 Supp. 38-1522. See Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985), for prior dissent. The majority bases its decision in part on Greenlee v. Board of Clay County Comm'rs, 241 Kan. 802, 740 P.2d 606 (1987), and the fact that the legislature did not expressly authorize a private right of action when that statute was enacted or revised in 1983, 1986, 1987, and 1988.

First, the majority misapplies Greenlee to the facts of this case. In Greenlee, a former county highway employee brought an action against the board of county commissioners for wrongful termination. Greenlee claimed he was terminated because the commissioners' reckless or intentional violation of the cash basis law resulted in loss of his job. In Greenlee, we noted the test of whether a person injured by the alleged violation of the cash basis law may recover from a wrongdoer in a private action in tort is whether the legislature intended to afford such a right when enacting the cash basis law. We observed that the purpose of the cash basis law is to prevent a deficit in the funds at the end of the fiscal year. We determined that the legislative purpose of the cash basis law was to protect the public from government overspending and was not intended to provide government employees with job security.

Here, there is no doubt that the legislature, by enacting 38-1522, intended to protect children. The rationale of Greenlee, therefore, does not apply.

[249 Kan. 385] The majority's determination that the legislature did not intend to authorize a private right of action when K.S.A. 1990 Supp. 38-1522 was enacted or revised in 1983, 1986, 1987, and 1988 is flawed. It reasons that, if the legislature intended a private right of action when enacting a statute that creates a duty, the legislature would have so stated. This reasoning departs from our prior common-law rule regarding a breach of a statutory duty.

It has long been the law of Kansas that negligence exists where there is a breach of a duty and there is a causal connection between the breach of the duty and the injury received. Rush, Adm'x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 135, 12 Pac. 582 (1887). The first requisite in establishing negligence is to show the existence of the duty which it is alleged has not been performed. A duty may be general and owing to everybody, or it may be particular and owing to a single person only by reason of that person's peculiar position. In order to justify a recovery, it is not sufficient to [819 P.2d 612] show that the defendant has neglected some duty or obligation existing at common law or imposed by statute, but that the defendant has neglected a duty or obligation which it owes to the party who claims damages for the neglect. Express Co. v. Everest, 72 Kan. 517, 522-23, 83 Pac. 817 (1906).

In Kendrick v. Atchison, T. & S.F. Rld. Co., 182 Kan. 249, 320 P.2d 1061 (1958), the plaintiff claimed that the railroad's train failed to sound its whistle at the crossing as required by law. The Kendrick court discussed the distinction between negligence and negligence per se. The court observed that "negligence per se" usually consists of the violation of a specific requirement of law or ordinance. It noted that the distinction between "negligence" and "negligence per se" is the means and method of ascertainment, in that negligence must be found by the jury from the evidence, while negligence per se results from violation of the specific requirement of law or ordinance, and the only fact for determination by the jury is the commission or omission of the specific act inhibited or required. The court recognized that we follow the rule that while a breach of duty imposed by law or ordinance is negligence per se, liability in damages cannot be predicated on a violation of law or ordinance unless the breach is the proximate cause of the injury or damages or substantially [249 Kan. 386] contributes to them. Kendrick at 260, 320 P.2d 1061. See Clark v. Mo. Pac. Rly. Co., 35 Kan. 350, 11 Pac. 134 (1886).

We have long recognized a duty may be general and owing to everybody, or it may be particular and owing to an individual by reason of that person's position. The majority of our tort law is premised on uniform traffic laws or other statutes that restrict or require certain conduct or acts. In Gabel v. Hanby, 165 Kan. 116, 193 P.2d 239 (1948), we held that the operator of a vehicle upon a public highway may assume that others driving the highway will observe the law. We noted that mere violations of the statutes regulating traffic on the highways, such as excessive speed, insufficient signals, and other matters of similar nature, are not sufficient to make a driver of an automobile liable for negligence in an action for damages growing out of a collision, unless it appears that such violations contributed to the accident and were the legal cause of the injuries sustained.

Certain of the uniform traffic laws have been amended, others repealed, and new traffic laws enacted during every legislature since the uniform laws were first enacted. We still recognize that negligence exists where there is a breach of a traffic law and a causal connection between the breach of the duty and the injury received, even though the legislature has always prescribed the penalty but has never expressly incorporated a private right of action into the law.

It is important to note that when the legislature has intended not to grant a private right of action when enacting a statute to protect the public, it has specifically stated its intent. For example, when the legislature enacted the child passenger safety statutes, K.S.A. 8-1343 et seq., in 1981 it required children of certain ages to be placed in safety restraining systems. K.S.A. 8-1344. In 1984, the legislature made it unlawful for any driver to violate K.S.A. 8-1344 and provided a fine of $10 for each violation. L.1984, ch. 38, § 2. The legislature amended K.S.A. 8-1345 in 1989 to state that evidence of failure to secure a child in a child passenger safety restraining system under the provisions of K.S.A. 8-1344 shall not be admissible in any action for the purpose of determining any aspect of comparative negligence or mitigation of damages. L.1989, ch. 40, § 2.

[249 Kan. 387] In Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), when determining whether comparative negligence applied, this court noted there was a private right of action for personal injuries where liability was premised upon violation of a statute prohibiting sale of explosives to minors. The plaintiff's cause of action was predicated upon K.S.A. 21-4209, which prohibited anyone from knowingly selling, giving, or otherwise transferring any explosive or detonation substance to a person under 18 years of age. The Arredondo [819 P.2d 613] court recognized that a breach of duty, negligence per se, results from a finding that the statute was violated. It observed that liability follows a breach of a statutory duty if the violation is the proximate cause of the injury. The court recognized in the usual negligence per se case plaintiff's contributory negligence had been a defense. It noted that courts have found legislative intent to remove contributory negligence as a defense when the statute violated is one of two exceptional types: (1) the statute expressly removes the defense, as in the Federal Employers' Liability Act; and (2) such intent is found in the statute's character, its social purpose, and the background of the social problem and hazard to which it is directed, such as the child labor laws. The court concluded that comparative negligence applied when determining the percentage of fault of the parties. Justice Herd dissented, stating the statute operated to protect a class of persons traditionally protected under the law, namely, minors, even from their own inexperience, lack of judgment, and tendency toward negligence, and comparative negligence should not apply. 227 Kan. at 850, 610 P.2d 1107.

The rationale of the Arredondo court that a breach of K.S.A. 21-4209 provided a private right of action should be applied to K.S.A.1990 Supp. 38-1522. The purpose of each statute is to protect children. Each statute provides a criminal penalty. When enacting K.S.A. 1990 Supp. 38-1522, our legislature intended to authorize a private right of action, or it would have stated otherwise.

Review Denied Oct. 20, 1994.

[32 Cal.Rptr.2d 645] [27 Cal.App.4th 133] Manatt, Phelps & Phillips, Robert E. Hinerfeld and Ronald B. Turovsky, Los Angeles, for defendants and appellants.

Voorhies & Kramer, Gutierrez & Gutierrez and Jean Ballantine, Los Angeles, for plaintiff and respondent.

CROSKEY, Associate Justice.

The County of Los Angeles ("the County") and Zsa Zsa Maxwell, a Children's Services Worker ("CSW") in the County's Department of Children's Services ("DCS"), appeal from the judgment of the Superior Court after a jury verdict. The jury awarded the seven-year-old plaintiff, Jimmee Scott, $1,191,692 in economic damages and $1,040,000 in general non-economic damages, for a total of $2,231,692, for serious injuries she suffered as a result of the defendants' negligence in supervising her foster care. Jimmee had been placed in the home of her grandmother, Dorothy Bullock, under DCS supervision.^[1]

The central issues raised by the appeal concern (1) the impact of requirements imposed upon local governments by regulations in the state Department of Social Services ("DSS") Manual of Policies and Procedures ("DSS Manual"), (2) the extent to which shortfalls in local governments' budgets may or may not excuse performance of mandatory [32 Cal.Rptr.2d 646] duties imposed by such regulations, and (3) the manner of apportioning fault where one or more [27 Cal.App.4th 134] defendants are sued for negligence, and the defendants' negligence consisted of failing to protect the plaintiff from the intentional acts of another defendant or a third party.

The DSS regulations at issue establish requirements for the supervision by county social service agencies of children placed in foster care under the agencies' supervision. In particular, when the events giving rise to this case took place, regulation 30-342 required monthly visits to be made to the home where each child is placed, subject to specific exceptions which are set forth in the regulation.^[2]

Regulation 30-342, its successor regulation 31-320, and other regulations applicable to this case are regulations duly promulgated by the DSS pursuant to section 16501 of the Welfare & Institutions Code and impose mandatory duties upon local agencies.^[3] We therefore hold that public entities are liable under section 815.6 of the Government Code for injuries to children in foster [27 Cal.App.4th 135] care which occur as a result of any violation of those duties;^[4] such public entities and their employees are not immune under Government Code sections 815.2 and 820.2 [32 Cal.Rptr.2d 647] for violations of those duties.^[5] We also hold that functions performed by a county welfare agency pursuant to Welfare & Institutions Code section 16500 and following are separate and distinct from those quasi-prosecutorial functions in connection with proceedings under Welfare & Institutions Code section 300, which are commonly delegated to county welfare departments pursuant to Welfare & Institutions Code section 272.^[6] Thus, a county and its employees are not immune under Government Code sections 815.2 and 821.6 for negligence in the performance of such functions.^[7] Nor do shortfalls in government budgets excuse the performance of mandatory duties imposed by the regulations.

[27 Cal.App.4th 136] On the issue of apportionment of damages between one or more negligent defendants and a nonparty intentional tortfeasor, we hold that: (1) the jury's apportionment of damages was not supported by substantial evidence, and (2) the jury should have been instructed, pursuant to Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1, 2 Cal.Rptr.2d 14, that a defendant may be found liable for noneconomic damages only in proportion to the total fault of all persons whose acts were a legal cause of the plaintiff's injuries, whether or not all such persons have appeared in the action, and whether their acts were intentional or negligent.

The jury found that Maxwell negligently failed to comply with regulation 30-342, and as a proximate result of Maxwell's negligence, for which the County is liable, Jimmee remained in an abusive and dangerous home where she ultimately was severely injured. The jury apportioned 1 percent of the fault to Bullock, and 99 percent to Maxwell and the County. Although we reject the defendants' claims of immunity, we do find the jury was not properly instructed on the apportionment of fault and that the court misapplied the collateral source rule. We therefore reverse the judgment and remand the matter for a redetermination of those issues.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Jimmee Scott was just under four years of age on June 28, 1988, the day on which her grandmother, Dorothy Bullock, immersed her legs in scalding water, inflicting deep burns that will leave Jimmee disabled and disfigured for life, and for which Bullock has been imprisoned for child abuse and corporal injury to a child.

Jimmee was in Bullock's care by order of the juvenile court and under the supervision of the DCS after she was abandoned by her mother, Latitia Bullock, approximately a year and a half before the date of her injuries.

On February 23, 1987, Jimmee's aunt, Debra Bullock, telephoned DCS, because Latitia had left Jimmee and Jimmee's five-year-old sister, Rickitia Canady, with her. Debra did not know where Latitia had gone, and she [32 Cal.Rptr.2d 648] could not care for the children herself. The children's fathers, Jim Scott and Tyrone Canady respectively, were incarcerated, as was Latitia. The girls' case was placed into the County's "Emergency Response" program, "triaged," and assigned to CSW Donald Walker, one of the original defendants in this action, for response within three days.^[8]

The next day, February 24, 1987, the County received a call from Bullock, saying Rickitia and Jimmee were now with her. On February 25, within the [27 Cal.App.4th 137] assigned three-day response time, Walker met with Bullock and the girls in Bullock's home. Given the choice of whether to have Jimmee and Rickitia declared dependent children of the juvenile court, Bullock said she wished the Court to take jurisdiction of the girls.

Subsequently, Walker located the girls' mother, Latitia, in jail. Latitia expressed concern about the children's placement with Bullock, stating Bullock was only interested in obtaining money for the minors. Still, she agreed the children could be placed with Bullock until she was released from jail.

On March 2, 1987, a hearing was held on the issue of whether Jimmee and Rickitia should be detained or released to Bullock or another relative. At the conclusion of the hearing, the case was transferred from the Emergency Response Program to Family Reunification. At a further hearing on March 9, the court signed a detention release order placing the children with Bullock under DCS supervision.

Walker, who continued to supervise Jimmee's placement, visited Jimmee and Rickitia on a monthly basis on March 26, April 28, May 20, and June 10, 1987. For two weeks, beginning May 26, Walker was on vacation. During his absence, Jimmee's aunt, Carla Heywood, telephoned DCS and advised a supervisor that she believed Bullock was using excessive discipline with the children, including leaving Jimmee on the toilet for three hours at a time and refusing to give her breakfast until 4 in the afternoon. This call was registered in the childrens' case log, and Heywood was assured that the matter would be investigated. Also recorded in the log was a complaint from Latitia that Bullock was mistreating the children.

Walker made an unannounced visit to Bullock's home on June 10, at which time he inquired about Bullock's discipline of the children. Bullock denied she used undue punishment. Nevertheless, Walker referred Bullock and the children to Dr. Clara Johnson for counseling and memorialized the referral in the case log.

After June 10, 1987, Jimmee's case was transferred to Maxwell. Maxwell testified at trial that she did not review the file and did not become aware of Heywood's allegations of excessive discipline.

[27 Cal.App.4th 138] Dr. Johnson, to whom Walker referred Bullock and the children for counselling, was never made aware by DCS of the reason for the referral. Instead, Dr. Johnson was told by Bullock that the girls were referred for counselling because Jimmee was "acting out sexually" and needed to be evaluated for signs of sexual molestation. After interviewing the girls, Johnson found no indication of sexual abuse, and having no basis for investigating any other problems, determined the children were in a stable placement and in no danger. She so advised Maxwell on approximately August 18, 1987.

Maxwell's case log did not indicate any visits with Jimmee and Rickitia in Bullock's home before December 24, 1987, although she prepared a report for a judicial review of the children's status on November 24, 1987. Thereafter, Maxwell's entries in the log indicate face-to-face visits on January 13, February 22 and April 10. However, a handwriting expert testified that those entries appeared [32 Cal.Rptr.2d 649] to have been made after June of 1988. Maxwell herself admitted she made the entries "possibly [in] June" of 1988.

Maxwell testified she did not visit Jimmee monthly, as required by the regulation 30-342 of the DSS Manual, because she had determined the placement was stable and did not require such intense supervision. However, under regulation 30-342, she was not authorized to make this determination without written authorization from her supervisor. No written authorization for a reduced schedule of face-to-face contacts appears in the service log.

In May of 1988, DCS received telephone calls from Carla Heywood expressing concern about Bullock's treatment of the children. In that same month DCS also received a call on a child abuse hotline from a neighbor, Louber Cole, who reported seeing Jimmee with two black eyes. Maxwell did not visit the children to investigate these calls, but instead merely telephoned Bullock, who assured her the children were in good condition and all was well. Maxwell did not mention the allegations of abuse by Heywood and Cole in her report to the juvenile court, filed May 24, 1988. After the hearing in which that report was received, Jimmee and Rickitia were placed in long-term foster care in Bullock's custody.

A month later, on June 25, 1988, Bullock immersed Jimmee's legs in scalding water and held her in that position for approximately 30 seconds as estimated by Jimmee's treating physician, causing burns which went through the skin, the fat under the skin, and the muscle, causing damage to the bone. Bullock did not take Jimmee for treatment until three days later, on June 28, 1988, by which time Jimmee was near death from severe infections caused by her burns.

[27 Cal.App.4th 139] In a criminal action, Bullock was convicted of two counts of child abuse and one count of inflicting corporal injury upon a child. In this action, in addition to receiving general instructions on negligence, legal cause and damages, the jury was instructed on the County's mandatory duties under Welfare & Institutions Code section 16501 and DSS regulation 30-342, including the duty to have monthly face-to-face contact with each child in foster care and monthly contact with each foster care provider. So instructed, and based upon all of the above evidence, the jury found the County and Maxwell, but not Dr. Johnson, liable for negligently failing to protect Jimmee from the severe abuse and injuries she received at the hands of Bullock. In a special verdict, the jury found that 1 percent of the negligence which was a legal cause of Jimmee's injuries was attributable to Bullock, 75 percent was attributable to the County, and 24 percent was attributable to Maxwell. This timely appeal followed.

CONTENTIONS ON APPEAL

The defendants contend that: (1) the County and Maxwell are immune from liability for Jimmee's injuries under Government Code sections 815.2, subdivision (b), 820.2, and 821.6; (2) the court improperly took judicial notice that state DSS regulations impose mandatory duties upon the County; (3) the court erroneously precluded defendants from presenting evidence of severe budgetary constraints which prevented the County from employing sufficient caseworkers, thereby preventing the defendants from proving they exercised "reasonable diligence," within the meaning of Government Code section 815.6 to discharge mandatory duties to Jimmee; (4) the jury's apportionment of fault was not supported by substantial evidence; (5) the jury was misled by the special verdict as to the proper manner of apportioning fault; (6) the court erroneously excluded evidence of collateral source payments of Jimmee's medical expenses; and (7) the rate of post-judgment interest assessable against the County and Maxwell is seven percent (7%).

DISCUSSION

1. The County Is Liable to Jimmee Under Government Code Section 815.6, And the Defendants Are Not Immune From Liability Under Sections 815.2, 820.2 or 821.6.

Government Code section 815.6 provides that if a public entity has a mandatory duty imposed by an enactment that is designed to [32 Cal.Rptr.2d 650] prevent a particular kind of injury, the entity is liable for an injury of that kind that is proximately caused by its failure to discharge the duty, unless the entity establishes that it exercised reasonable diligence to discharge the duty. (See [27 Cal.App.4th 140] fn. 4, ante.) Jimmee contends that (1) DCS had a mandatory duty imposed by DSS regulation 30-342 to have face-to-face contact with Jimmee, her sister and Bullock at Bullock's home on a monthly basis; (2) the regulation was designed to prevent injury to children in foster care; (3) DCS failed to discharge its duty under the regulation; and, as a result, (4) DCS allowed Jimmee to remain in an abusive and dangerous situation in Bullock's home, where Jimmee ultimately suffered disabling and disfiguring injuries.

DCS and Maxwell contend they are immune from liability under Government Code sections 815.2, 820.2, and 821.6. Section 815.2 immunizes a public entity from liability arising from the acts of its employee where the employee is immune from liability; section 820.2 immunizes a public employee from liability for acts or omissions resulting from the exercise of the discretion vested in the public employee; and section 821.6 immunizes a public employee from liability for the institution or prosecution of judicial or administrative proceedings within the scope of his or her employment. (See fns. 5 and 7, ante.) We discuss each of these statutory provisions.

a. Government Code, Section 815.2.

Under Government Code section 815.2, subdivision (a), the County is liable for acts and omissions of its employees under the doctrine of respondeat superior to the same extent as a private employer. Under subdivision (b), the County is immune from liability if, and only if, Maxwell is immune. The sole bases under which it is claimed Maxwell is immune are the immunities for discretionary acts of government officials (Gov.Code, § 820.2) and prosecutorial immunity (Gov.Code, § 821.6). As the following discussion demonstrates, neither claim of immunity has any merit.

b. Government Code, Section 820.2.

Section 820.2 of the Government Code provides that a public employee is not liable for an injury which results from the employee's act or omission in the performance of a discretionary function. (§ 820.2; Thompson v. County of Alameda (1980) 27 Cal.3d 741, 748, 167 Cal.Rptr. 70, 614 P.2d 728; Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887, 896, 20 Cal.Rptr.2d 418; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 882-883, 271 Cal.Rptr. 513.) However, the act protects only acts and omissions occurring in "the exercise of the discretion vested in" the employee. (§ 820.2; McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261, 74 Cal.Rptr. 389, 449 P.2d 453; Wallace v. City of Los Angeles (1993) 12 Cal.App.4th 1385, 1403-1404, 16 Cal.Rptr.2d 113.)

In the landmark case construing this phrase, Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, the Supreme Court [27 Cal.App.4th 141] held that the mere existence of discretionary choice in the act to be performed does not bring the act within the reach of section 820.2, as virtually all acts a governmental employee is called upon to perform involve some degree of choice. (69 Cal.2d at pp. 788-790, 73 Cal.Rptr. 240, 447 P.2d 352.) Rather, the high court held, immunity should attach only to those decisions which involve "basic policy" choices which constitute an exercise of discretion by a coordinate branch of government and therefore should " 'remain beyond the range of judicial inquiry.' " (Id. at p. 793, 73 Cal.Rptr. 240, 447 P.2d 352, quoting 3 Davis, Administrative Law Treatise (1958) § 25.11, p. 484.)

The court thereafter noted, in McCorkle v. City of Los Angeles, supra, 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453, that claims of immunity by public employees had "frequently required judicial determination of the category into which the particular act falls: i.e., whether it was ministerial because it amounted 'only to obedience to orders, or the performance of a duty in which the officer is left no choice of his own,' or 'discretionary because it required 'personal deliberation, decision and judgment.' [Citation]." (70 Cal.2d at pp. 260-261, 74 Cal.Rptr. 389, 449 P.2d 453.)

[32 Cal.Rptr.2d 651] Actions which have been found to be within the discretion of a public employee, and therefore immune under section 820.2, have included the decision to initiate dependency proceedings in behalf of a minor (Alicia T. v. County of Los Angeles, supra, 222 Cal.App.3d at p. 882-883, 271 Cal.Rptr. 513).^[9] Actions which have been found "ministerial" and thus not immune have included negligence, essentially of the same kind as is alleged here, in the supervision of a minor in foster care. (Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1057, 84 Cal.Rptr. 27.)^[10] Actions that are manifestly ministerial, because they amount only to obedience to orders which leave the officer no choice, plainly include actions governed by specific statutory or regulatory directives. Such actions have been found nondiscretionary, and thus not immunized, because they entail the fulfillment of enacted requirements. (Ramos v. County of Madera (1971) 4 Cal.3d 685, 694, 94 Cal.Rptr. 421, [27 Cal.App.4th 142] 484 P.2d 93; Wheeler v. County of San Bernardino (1978) 76 Cal.App.3d 841, 849, 143 Cal.Rptr. 295).^[11]

In this case, regulation 30-342 required a social worker to "monitor the ... physical and emotional condition" of a child in foster care and "take necessary action to safeguard the child's growth and development while in placement." Specifically, the regulation required a social worker, in the monitoring and safeguarding of a child, to have monthly face-to-face contact with the child and the foster parent, except in specified circumstances. Under regulation 30-342 and its successor regulation 31-320, such regular periodic contacts are required unless the placement has been determined to be stable, the child is placed with a relative, or there exist other facts, inapplicable here, and written second-level supervisory approval for less frequent visits has been obtained. (For the text of this regulation, see fn. 2, ante.) The regulation 30-342 requirements, including the requirement of monthly face-to-face contact, plainly constituted mandatory requirements which left Maxwell no choice on the issue of the frequency of visits to Jimmee.

Although Jimmee was placed with a relative, Maxwell had no reliable basis for her conclusion that the placement was stable. Further, there was no evidence that a supervising social worker had given written approval for a reduced schedule of visits. Thus, her failure to visit Jimmee on a monthly basis was not an omission resulting from an exercise of discretion vested in Maxwell under the regulation; consequently, it was not an immune activity under section 820.2.

We concluded in Alicia T. v. County of Los Angeles, supra, 222 Cal.App.3d 869, 271 Cal.Rptr. 513, that a social worker's decision to institute dependency proceedings must be discretionary because of the urgent necessity of "the continuing exercise of ... discretion in favor of the protection of minor children." (222 Cal.App.3d at p. 883, 271 Cal.Rptr. 513.) The same consideration compels us to determine in this case that individual county social workers do not have discretion regarding compliance with regulations requiring monthly home visits to children in foster care. The standards set by regulation 30-342 establish [32 Cal.Rptr.2d 652] minimum schedules for home visits. If those standards are deemed discretionary, the effect can only be to decrease, not increase, the protection afforded to children. Maxwell had no discretion to visit Jimmee less frequently than monthly.

[27 Cal.App.4th 143] c. Government Code, Section 821.6.

We also reject the contention that Maxwell's challenged acts and omissions were immune under Government Code section 821.6. Social workers indeed have immunity under that section for their conduct in the initiation and prosecution of proceedings under sections 300 through 396 of the Welfare and Institutions Code. (Ronald S. v. County of San Diego, supra, 16 Cal.App.4th 887, 899, 20 Cal.Rptr.2d 418; Alicia T. v. County of Los Angeles, supra, 222 Cal.App.3d at p. 883, 271 Cal.Rptr. 513; Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283, 260 Cal.Rptr. 645.) However, the negligence with which the defendants are charged in this case did not occur in the performance of their prosecutorial, or quasi-prosecutorial functions.^[12]

The responsibilities of public welfare agencies respecting children are set forth in two separate divisions of the Welfare & Institutions Code. Division 2 of the Code, in particular Chapter 2 of part 1 of that division (The Juvenile Court Law, §§ 200 et seq.), provides for court jurisdiction over minors who are abused or neglected by their parents or guardians (Welf. & Inst.Code, §§ 300 et seq.), habitually disobedient or truant minors (Welf. & Inst. §§ 601 et seq.), and minors who commit crimes (Welf. & Inst.Code, §§ 602 et seq.). Section 272 in that chapter authorizes a County Board of Supervisors to delegate to the county welfare department all or part of the duties of the probation officer concerning abused or neglected children who are made dependents of the juvenile court. Only those functions performed by child welfare workers under section 272 may reasonably be included among the prosecutorial and quasi-prosecutorial functions which are entitled to immunity under Government Code section 821.6.

The actual delivery of public social services, such as foster care, to abused, neglected or exploited children is governed by Division 9 of the Welfare & Institutions Code, respecting Public Social Services, in particular Part 4 of that Division, respecting Services for the Care of Children. (§ 1001, subd. (c); § 16501.) The delivery of such services is a county function, which is subject to the regulations of the State Department of Social Services and of the State Department of Health Services respecting all services for which state and federal funds are provided. (Welf. & Inst.Code, § 10800.)^[13]

The acts and omissions complained of in this case occurred in the delivery of "public social services" as defined in Welfare & Institutions Code, [27 Cal.App.4th 144] section 10051 and governed by Division 9, sections 10000 through 18989.3, of that Code. In particular, they occurred in the delivery of "child welfare services," as defined in Welfare & Institutions Code, section 16501 and governed by Part 4, sections 16000 through 16583, of Division 9. These functions are separate and distinct from those quasi-prosecutorial functions which are entitled to section 821.6 immunity.

Where there is negligence, as there manifestly was in this case, liability for resulting harm is the rule, and immunity is the exception. (Ramos v. County of Madera, supra, 4 Cal.3d at p. 692, 94 Cal.Rptr. 421, 484 P.2d 93; Johnson v. State of California, supra, 69 Cal.2d at p. 798, 73 Cal.Rptr. 240, 447 P.2d 352; Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 219, 11 Cal.Rptr. 89, 359 P.2d 457.) Accordingly, particular immunities have been strictly construed to [32 Cal.Rptr.2d 653] apply only to the functions which the statute or common law rule creating each immunity was intended to protect; immunities have not been applied to other activities, whether or not the person claiming immunity sometimes, or even ordinarily, fulfills the protected functions. (See, e.g., Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719-720, 117 Cal.Rptr. 241, 527 P.2d 865; James W. v. Superior Court (1993) 17 Cal.App.4th 246, 255-257, 21 Cal.Rptr.2d 169.)

This limitation upon immunities is manifestly just. An immunity is, after all, a license to harm. Thus, it should not extend beyond those functions which are so necessary to the public good that the public benefit from the free exercise of discretion in such functions plainly outweighs the private harm that may flow from misfeasance.

CSW's must be entitled to prosecutorial immunity for instituting and processing proceedings under Welfare & Institutions Code section 300, because the urgent need for the protection provided by such proceedings outweighs the harm which may flow from an erroneous decision to initiate them. (Alicia T., supra, 222 Cal.App.3d at p. 883, 271 Cal.Rptr. 513.) The same balance of interests does not affect the separate and distinct functions of supervising the foster care of children who are the subject of dependency proceedings. Thus, there is no policy reason for extending prosecutorial immunity to these nonprosecutorial functions and there is no immunity.

2. The Court Properly Took Judicial Notice of Regulations in the DSS Manual.

The County next contends the court improperly took judicial notice of DSS regulation 30-342, portions of which were read to the jury in special instruction 7. We disagree.

[27 Cal.App.4th 145] Section 451 of the Evidence Code requires judicial notice to be taken of matters made a subject of judicial notice by Government Code section 11343.6. That statute requires judicial notice to be taken of the contents of regulations that are adopted by state agencies and filed with the Secretary of State.

Welfare & Institutions Code section 16501 requires the state DSS to establish regulations for the supervision of the care received by children in foster care. The regulations formerly found in Division 30 of the State DSS Manual, including regulation 30-342, were regulations established by the DSS pursuant to section 16501. Those regulations, as are their successor regulations in Division 31, were duly adopted pursuant to the Administrative Procedures Act (Gov.Code, §§ 11340 et seq.) and filed with the Secretary of State. (See Cal.Code of Regs., Title 22, Div. 2, Part 1, "Department of Social Services--Manuals of Policies and Procedures.") The regulations thus have the force of law and are matters subject to mandatory judicial notice. (Evid.Code, § 451; Gov.Code, § 11343.6; People v. Haugh (1963) 216 Cal.App.2d 603, 606, 31 Cal.Rptr. 74 [construing former Gov.Code § 11383, which provided the same as section 11343.6 in relevant part].)

Jimmee's expert, Albert A. Colon, a former chief of Family and Children's Services for the state DSS, testified in a hearing under Evidence Code section 402 that the version of regulation 30-342 which Jimmee submitted to be read to the jury was duly adopted and filed in 1985 and was in effect in 1987 and 1988. Colon's testimony provided a sufficient basis for judicial notice of the regulation. (People v. Haugh, supra, 216 Cal.App.2d at p. 606, 31 Cal.Rptr. 74.)

3. The Court Did Not Improperly Exclude Evidence of Reasonable Efforts By the County to Discharge Its Mandatory Duties.

The County next contends it was erroneously precluded from presenting evidence of its extreme budgetary limitations, which it contends prevented its employees from fully and literally complying with regulatory requirements. Under Government Code section 815.6, a government agency is liable for failure to fulfill mandatory duties if resulting injuries are of a kind which the enactment imposing the duty was designed to prevent. However, there is no such liability if the public entity establishes it exercised reasonable diligence to discharge the duty. (See fn. 4, ante.) The County contends it [32 Cal.Rptr.2d 654] could have established that it exercised "reasonable diligence" to fulfill its duties to Jimmee if the court had allowed it to show its diligence in supervising Jimmee's placement was reasonable, given existing budgetary constraints.

The County's contention lacks merit for two reasons. First, the record does not support the County's claim that it was precluded from presenting [27 Cal.App.4th 146] evidence of its financial constraints.^[14] The defendants have not demonstrated that any specific evidence of financial constraints, or their effect on DCS, was ever excluded.

Secondly, and more importantly, even assuming arguendo that specific evidence of financial constraints had been offered and excluded, such exclusion would have been proper, as the evidence would have been irrelevant. Financial limitations of governments have never been, and cannot be, deemed an excuse for a public employee's failure to comply with mandatory duties imposed by law. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 217, 211 Cal.Rptr. 398, 695 P.2d 695; Mooney v. Pickett (1971) 4 Cal.3d 669, 680, 94 Cal.Rptr. 279, 483 P.2d 1231; Wallace v. City of Los Angeles, supra, 12 Cal.App.4th at p. 1402, 16 Cal.Rptr.2d 113.)

It is indeed true that Welfare & Institutions Code section 10001, subdivision (a), makes the provision of public social services subject to "the limits of public resources." However, sound public policy precludes delegating to individual public employees the determination of the manner in which limited resources are to be utilized, particularly where specific statutes or regulations state specific requirements. (Ramos v. County of Madera, supra, 4 Cal.3d 685, 693, 94 Cal.Rptr. 421, 484 P.2d 93.)

Policies for the supervision of children in foster care are established at the state level by the state DSS. (Welf. & Inst.Code, § 16501.) The DSS Manual, including regulation 30-342, establishes requirements for the frequency of home visits to such children. Local governments and their employees have the merely ministerial duty of carrying out these requirements. If the requirements cannot be fulfilled with funding available to a local agency, the agency must address its concerns to those with the authority to set policy, not to the courts by way of excusing violations of mandatory requirements.^[15]

[27 Cal.App.4th 147] 4. Apportionment of Fault

Defendants next contend that, if they are not immune from liability for Jimmee's injuries, they are at least not liable to the extent stated in the jury's verdict, which sets the County's liability at seventy-five percent, Maxwell's at twenty-four percent, and that of the apparently judgment proof Bullock at only 1 percent. The defendants contend the jury's apportionment of fault was the result of passion and prejudice and was not supported by the evidence. The defendants also [32 Cal.Rptr.2d 655] contend the jurors were confused by the special verdict form as to the manner in which fault should be apportioned among the County, Maxwell and Bullock, and therefore were unable to make a proper apportionment. We believe both contentions have merit.

a. Sufficiency of the Evidence.

We review a jury's apportionment of fault under the substantial evidence standard and will disturb the finding only if unsupported by the evidence. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925, 101 Cal.Rptr. 568, 496 P.2d 480; Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1484, 255 Cal.Rptr. 755; Bradfield v. Trans World Airlines, Inc. (1979) 88 Cal.App.3d 681, 687, 152 Cal.Rptr. 172.) While the evidence was plainly sufficient to support the jury's finding that the defendants' negligence was a substantial contributing cause of Jimmee's injury, we fully agree with the defendants' contention that an allocation of only 1 percent of the fault to Bullock was improper as a matter of law.

Division 1 of this Court has recently reached a similar result in Pamela B. v. Hayden (1994) 25 Cal.App.4th 785, 31 Cal.Rptr.2d 147 [94 Daily Journal D.A.R. 7879]. In that case, the plaintiff was assaulted and raped in the garage of her apartment building. A jury found the landlord's failure to provide adequate security in the garage was a legal cause of the plaintiff's injury, awarded the plaintiff $1.2 million in damages, and attributed 95% of the fault for her injury to the landlord, while attributing only 4% to the rapist and 1% to his aider and abettor. Announcing the result in that case, Justice Vogel pronounced the apportionment of fault "blatantly unfair, inequitable and unsupported...." (25 Cal.App.4th at p. 805, 31 Cal.Rptr.2d 147 [94 Daily Journal D.A.R. at p. 7886].) The result here is similarly unsupported and unsupportable.

[27 Cal.App.4th 148] We would agree that the defendants here are more culpable than the landlord in Pamela B. and it would not be unreasonable to find their share of responsibility for Jimmee's damages greater than that which might ultimately be imposed on Pamela B.'s landlord. That landlord, after all, was guilty at worst of a passive omission (25 Cal.App.4th at p. 803-05, 31 Cal.Rptr.2d 147 [Daily Journal D.A.R. 7885], while the defendants here, acting with the authority and power of the state, delivered Jimmee into Bullock's hands, kept her there by force of law, and yet ignored other laws which were intended for Jimmee's protection and which required them to act.

In addition, the landlord in Pamela B. had only the general duty imposed upon a possessor of land to exercise ordinary care in the management of his property. (Civ.Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 118-119, 70 Cal.Rptr. 97, 443 P.2d 561.) By contrast, Maxwell's primary duty, when acting within the scope of her employment, was the protection of children in foster care.^[16] She thus had a duty to the plaintiff that was greater than the general duty of ordinary care. (Cf. Rosh, supra, 94 Daily Journal D.A.R. at p. 10017.)

The relatively active role of the defendants in causing Jimmee's harm, together with their heightened duty to prevent it, is a circumstance which suggests these defendants may reasonably be found more culpable than an ordinary citizen who fails to protect another from criminal acts, and hence may reasonably be assigned a greater proportion of the blame for Jimmee's harm. Still, the evidence cannot be stretched to support an apportionment of 99 per cent of the fault to the negligent defendants and only 1 per cent to the person who filled a tub with scalding water, lifted Jimmee into it and held her there until her flesh was burned to the bone. No reasonable jury could conclude [32 Cal.Rptr.2d 656] Bullock's fault was as trifling as the jury's allocation would suggest.

b. Instructional Error.

It was reasonably likely that the language in the special verdict form misled the jury as to the proper manner of apportioning fault. The special verdict form posed four questions: (1) whether any of the defendants [27 Cal.App.4th 149] in the action was negligent; (2) if any defendant was negligent, whether such negligence was a legal cause of Jimmee's injuries; (3) the amount of Jimmee's economic, noneconomic and total damages; (4) the percent of negligence of each defendant and of Bullock.^[17]

Apparently confused by the last question, the jury asked the court for clarification about "the addition of Dorothy Bullock as 'other person' in Question 4 item (d) ... in general and as it pertains to negligence as a legal cause." When the jury's query was read, the defendants asked that Bullock's name be added to Questions 1 and 2. However, the court declined to do so.

We cannot fault the court for so ruling, as such addition would have done little to clarify how fault was to be apportioned in Question 4. It is the language of Question 4 itself that was misleading as to the proper manner of assessing proportional liability in a case where one or more defendants are negligent and another defendant, or an unnamed third party, intentionally caused the plaintiff's injuries.

Section 1431.2 of the Civil Code provides that in an action for personal injury based upon principles of comparative fault, the liability of each defendant for noneconomic damages shall be several, not joint, and each defendant shall be liable "only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault...." (Emphasis added.) Shortly after modifying the common law principle of equitable indemnity in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, to include principles of comparative fault (20 Cal.3d at p. 598, 146 Cal.Rptr. 182, 578 P.2d 899), the Supreme Court held that such principles apply between a negligent defendant and one whose liability derives from principles of strict liability. (Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 328, 146 Cal.Rptr. 550, 579 P.2d 441.) The Nest-Kart court concluded that "... juries are fully competent to apply comparative fault principles between negligent and strictly liable defendants." (Id. at p. 331, 146 Cal.Rptr. 550, 579 P.2d 441.)

A recent appellate court decision, Weidenfeller v. Star & Garter, supra, 1 Cal.App.4th 1, 2 Cal.Rptr.2d 14, applied the reasoning of Nest-Kart, supra, to a case in which the jury had apportioned liability between a negligent defendant and a third [27 Cal.App.4th 150] party who intentionally assaulted the plaintiff. The Weidenfeller court held that an action in which one tortfeasor acted negligently and another acted intentionally is "an action based upon principles of comparative fault," and therefore section 1431.2 applies to such an action. (1 Cal.App.4th at pp. 6-7, 2 Cal.Rptr.2d 14.)^[18]

[32 Cal.Rptr.2d 657] The total liability in Weidenfeller was divided between the negligent and intentional actors, even though only the former was named as a defendant. Such a division of liability between sued and unsued persons has since been ratified by the Supreme Court. In DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 7 Cal.Rptr.2d 238, the high court construed section 1431.2 to mean a defendant is liable only for a proportionate share of noneconomic damages as compared with all fault, and not merely as compared with the fault of the defendants present in the lawsuit. (2 Cal.4th at pp. 603-604, 7 Cal.Rptr.2d 238, 828 P.2d 140.)

Here, the jury was correctly instructed to apportion liability for Jimmee's injuries among Maxwell, the County and Bullock, even though Bullock did not appear. (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at pp. 603-604, 7 Cal.Rptr.2d 238, 828 P.2d 140; Weidenfeller v. Star & Garter, supra, 1 Cal.App.4th at pp. 4-5, 2 Cal.Rptr.2d 14.) However, the special verdict form asked the jury only to determine the percentage of negligence by each named person, which was a legal cause of Jimmee's injuries. Inasmuch as Bullock's act in burning Jimmee was entirely and obviously intentional, and only her subsequent failure to seek immediate medical treatment could conceivably be considered merely negligent, the jurors might reasonably have found only 1 percent of the negligence which caused the tragic chain of events was Bullock's, even if they believed her share of the fault, within the meaning of section 1431.2, was greater.

The special verdict in this case substantially followed the language of the standard special verdict in BAJI 16.00, designed for use in actions for negligence.^[19] However, under principles established in DaFonte v. Up-Right, Inc., supra, 2 Cal.4th 593, 7 Cal.Rptr.2d 238, 828 P.2d 140, Safeway Stores, Inc. v. Nest-Kart, supra, 21 Cal.3d [27 Cal.App.4th 151] 322, 146 Cal.Rptr. 550, 579 P.2d 441, and Weidenfeller v. Star & Garter, supra, 1 Cal.App.4th 1, 2 Cal.Rptr.2d 14, a more appropriate form of special verdict would be one which follows the language of the standard special verdict in BAJI 16.12.^[20]

The Use Note following BAJI number 16.12 indicates it is designed only for use in cases involving defective products liability with comparative fault and claims of comparative implied indemnity. Such use follows the rule of Safeway Stores, Inc. v. Nest-Kart, supra, 21 Cal.3d 322, 146 Cal.Rptr. 550, 579 P.2d 441. However, we are in accord with the court in Weidenfeller v. Star & Garter, supra, 1 Cal.App.4th 1, 2 Cal.Rptr.2d 14, and believe that precisely the same principles apply in cases involving liability based upon commission of an intentional tort with comparative fault and claims of comparative implied indemnity. It follows that in all cases in which a negligent actor and one or more others jointly caused the plaintiff's injury, the jury should be instructed that, assuming 100% represents the total causes of the plaintiff's [32 Cal.Rptr.2d 658] injury, liability must be apportioned to each actor who caused the harm in direct proportion to such actor's respective fault, whether each acted intentionally or negligently or was strictly liable (Safeway Stores, Inc. v. Nest-Kart, supra, 21 Cal.3d at p. 328, 146 Cal.Rptr. 550, 579 P.2d 441; Weidenfeller v. Star & Garter, supra, 1 Cal.App.4th at pp. 7-8, 2 Cal.Rptr.2d 14), and whether or not each actor is a defendant in the lawsuit (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at p. 602, 7 Cal.Rptr.2d 238, 828 P.2d 140). Obviously, only theories of liability actually supported by the evidence should be mentioned in the instruction.

c. Prejudice of the Misleading Verdict Form.

In our view, the confusing language used in the verdict form, which obviously is in the nature of a jury instruction, was prejudicial to the [27 Cal.App.4th 152] County. " 'Article VI, section 13 of the California Constitution provides that error in instructing the jury shall be grounds for reversal only when the reviewing court, "after an examination of the entire cause, including the evidence," concludes that the error "has resulted in a miscarriage of justice." The test of reversible error has been stated in terms of the likelihood that the improper instruction misled the jury. [Citation.]' [Citations.] Thus, if a review of the entire record demonstrates that the improper instruction was so likely to have misled the jury as to become a factor in the verdict, it is prejudicial and a ground for reversal. [Citation.] 'To put it another way, "[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction prejudice appears and this court 'should not speculate upon the basis of the verdict' " [Citations.]' [p] 'The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all of the circumstances of the case, including the evidence and the other instructions given. No precise formula can be drawn.' [Citations.]" (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 335, 5 Cal.Rptr.2d 594.)

Among the factors which are considered in assessing the prejudice of an erroneous or misleading jury instruction are (1) the degree of conflict in the evidence on critical issues, (2) whether the jury requested a rereading or clarification of the erroneous instruction, (3) the effect of other instructions in remedying the error and (4) the closeness of the jury's verdict. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876, 148 Cal.Rptr. 355, 582 P.2d 946; Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 123-124, 273 Cal.Rptr. 457.)

Here, as we have observed, evidence respecting the apportionment of fault was not merely in conflict. It strongly supported a much larger apportionment to Bullock than appeared in the verdict.

As we have also observed, the jury requested clarification of Question 4, respecting the addition of Bullock "in general," and also "... as it pertains to negligence as a legal cause." The import of the second part of the query is not clear. However, it is reasonably likely the question arose because the evidence showed that Bullock acted intentionally and only the defendants acted negligently, but the special verdict only asked the jury to determine the proportion of negligence that was attributable to each actor.

The jurors' confusion was not remedied either by the court's supplemental instruction in response to their query or by other instructions. In response to [27 Cal.App.4th 153] the jury's query, the court restated the instruction, using the word "fault," rather than "negligence," in explaining what was to be apportioned among the named persons.^[21] However, [32 Cal.Rptr.2d 659] the court did not explain that fault is a broader concept than negligence, and the jury might reasonably have understood the court to be using the terms as if they were equivalent.

The court also directed the jury to review the other instructions previously given which related to their concerns. However, the other instructions relating to the issue of fault all referred to negligence, and only negligence, as a legal cause of damage. Thus, reference to those instructions could only have further misled the jury.

Finally, the jury's verdict was close on the issue affected by the erroneous instruction. On the question of whether each defendant was negligent, the jury voted eleven to one that the County and Maxwell were negligent. However, on the issues of causation and apportionment of liability, the vote was only nine to three in favor of the verdict as returned.

In sum, the evidence established that Bullock acted intentionally, and the defendants acted negligently. Under this state of the evidence, the special verdict, which only asked the jury to determine the proportion of negligence attributable to each actor, allowed a greater apportionment of fault to the defendants than might reasonably have been found by a properly instructed jury. The judgment thus must be reversed and remanded for a new trial on the apportionment of damages.

[27 Cal.App.4th 154] 5. Application of the Collateral Source Rule.

The defendants also contend they should have been allowed to present evidence that Jimmee's medical expenses have been paid by entities that are not wholly independent of the County and that other such expenses have been, and will continue to be, paid by a private charity. The entities which the County contends have either paid Jimmee's medical expenses or provided medical care free of charge are County Foster Care insurance, AFDC, Medi-Cal, and the Shriner's Hospital.

Evidence of any payments that were made from insurance purchased by the County to cover its foster care program should have been admitted. Under the collateral source rule, one who suffers injury through the wrongful act of another is not precluded from proceeding against the wrongdoer for compensation, nor is the amount of compensation reduced, by receipt by the victim of payments from a source independent of the wrongdoer (Anheuser-Busch, Inc. v. Starley (1946) 28 Cal.2d 347, 349, 170 P.2d 448), and the defendant in such an action cannot introduce evidence of any such payments (Helfend v. Southern Calif. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6-13, 84 Cal.Rptr. 173, 465 P.2d 61). However, the rule does not apply if the victim has been reimbursed before trial by a cash payment from the defendant personally or from the defendant's insurance carrier. (Blake v. E. Thompson Petroleum Repair Co. (1985) 170 Cal.App.3d 823, 832, 216 Cal.Rptr. 568; Turner v. Mannon (1965) 236 Cal.App.2d 134, 140, 45 Cal.Rptr. 831; Dodds v. Bucknum (1963) 214 Cal.App.2d 206, 212-213, 29 Cal.Rptr. 393.) The County was thus entitled to offset any recovery by Jimmee with payments made to her by insurance carried by the County and was entitled to introduce evidence of such payments.

The trial court properly excluded from evidence payments by AFDC and Medi-Cal and medical services provided by the Shriner's Hospital. Under Government Code section 985, in a lawsuit against a public entity for personal injury, the entity may [32 Cal.Rptr.2d 660] not introduce evidence of payments to the plaintiff from Medi-Cal, AFDC, private medical programs and similar sources. (Gov.Code, § 985, subds. (a), (b), (f).) However, after the return of a verdict which includes damages for which such payments have been made or are obligated to be made, the entity may bring a noticed motion to have the judgment reduced by the amounts paid before trial. (Gov.Code, sec. 985, subd. (b).) Such motion must be noticed within the time allowed by section 659 of the Civil Procedure Code. (Ibid.)

Upon the filing of a timely and proper motion by a public entity, a trial court must, on such terms as may be just, order reimbursement from the [27 Cal.App.4th 155] judgment to the provider of any payments made by Medi-Cal, AFDC and other nonfederal publicly funded sources of benefits with statutory lien rights. (Gov.Code, sec. 985, subd. (f)(1).) If the plaintiff has received payments from private medical programs or similar sources, the court may, after considering the totality of the circumstances, and upon such terms as may be just, determine what portion of those payments shall be reimbursed to the provider, used to reduce the verdict, or accrue to the benefit of the plaintiff. (Gov.Code, sec. 985, subd. (f)(2).)

Upon retrial of this matter, the County shall be entitled to introduce evidence of payments made to Jimmee by insurance maintained by the County. The County may also make a post-trial motion for reduction of the judgment as provided in section 985.

6. The Rate of Interest to be Applied to the Entire Judgment is Seven Percent.

Finally, the defendants would appear to be correct in contending that the rate of interest applicable to all defendants' share of the judgment is seven percent (7%). As the plaintiff has expressly conceded, Government Code section 970.1, subdivision (b), limits the rate of interest on the County's share of the judgment to seven percent. (San Francisco Unified School Dist. v. San Francisco Classroom Teachers Assn. (1990) 222 Cal.App.3d 146, 151-152, 272 Cal.Rptr. 38.) The intent of the Legislature in enacting section 970.1, subdivision (b), was to provide that execution and other remedies under the Code of Civil Procedure for enforcement of money judgments do not apply to enforcement of money judgments against local public entities. (Id. at p. 151, 272 Cal.Rptr. 38.) It would be inconsistent with that intent to allow interest at more than seven percent (7%) on judgments against parties entitled to be indemnified by a local public entity. Under Government Code section 825, Maxwell is entitled to be indemnified by the County for her share of the judgment. To prevent the County from being liable for interest on a judgment in excess of that allowed by section 970.1, subdivision (b), interest on Maxwell's share of the judgment should also be limited to seven percent.

DISPOSITION

The judgment is reversed with respect to (1) the apportionment of damages among the County, Maxwell and Bullock and (2) the amount of damages to the extent that they would be impacted by evidence of payments made from insurance maintained by the County. The case is remanded for a redetermination of those issues. The judgment is otherwise affirmed. Upon [27 Cal.App.4th 156] remand, the court will conduct further proceedings in accordance with the views expressed herein. The parties shall bear their own costs on appeal.

KLEIN, P.J., and KITCHING, J., concur.

[1] Jimmee's complaint originally named as defendants the County, Maxwell, Bullock, Donald Walker, the CSW who supervised Jimmee's placements before her case was transferred to Maxwell, and Doe defendants. The complaint was later amended to name Clara L. Johnson, Ph.D. and her clinic, the Family Counselling Center of Inglewood. Bullock did not appear in the action, and her default was entered. Walker was dismissed from the action on the third day of trial. When we use the collective term "defendants," we refer only to the County and Maxwell.

[2] These regulations were originally set out in Division 30 of the DSS Manual. They have since been renumbered to Division 31. At all times relevant to this case, regulation 30-342 provided in pertinent part as follows:

".1 The social worker, ... shall be present at the time of placement unless the child is placed out of state.

".2 The social worker shall monitor the child's physical and emotional condition, and shall take necessary action to safeguard the child's growth and development while in placement.

".3 For each child in placement the social worker shall:

".31 Have face-to-face contact at least monthly.

".311 The social worker shall be permitted to have less frequent face-to-face contact, up to a minimum of once each quarter, only if all of the following criteria are met:

"(a) The child has no severe physical or emotional problems caused or aggravated by the placement.

"(b) The placement is stable.

"(c) The case record documents the existence of at least one of the following circumstances:

"(1) The child is placed with a relative ...

"(d) Written second-level supervisory approval has been obtained....

".6 For the foster care provider(s), the social worker shall:

".61 Have contact at least monthly...." (California-SDSS-Manual-SS, Manual Letter No. 85-74, effective December 1, 1985; California-SDSS-Manual-SS, Manual Letter No. SS-88-03, effective May 28, 1988.)

Current regulation number 31-320 substantially includes the above provisions. (California-DSS-Manual-CWS, Manual Letter No. CWS-93-01, issued July 1, 1993.)

[3] In 1987, Welfare & Institutions Code section 16501 provided in pertinent part as follows: "

As used in this chapter, 'child welfare services' means public social services which are directed toward the accomplishment of the following purposes: (a) protecting and promoting the welfare of all children, including handicapped, homeless, dependent, or neglected children; (b) preventing or remedying, or assisting in the solution of problems which may result in, the neglect, abuse, exploitation, or delinquency of children; (c) preventing the unnecessary separation of children from their families by identifying family problems, assisting families in resolving their problems, and preventing breakup of the family where the prevention of child removal is desirable and possible; (d) restoring to their families children who have been removed, by the provision of services to the child and the families; (e) identifying children to be placed in suitable adoptive homes, in cases where restoration to the biological family is not possible or appropriate; and (f) assuring adequate care of children away from their homes, in cases where the child cannot be returned home or cannot be placed for adoption. Child welfare services may include, but are not limited to: case management, counseling, emergency shelter care, emergency in-home caretakers, temporary in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, and transportation.

"The county shall provide child welfare services as needed pursuant to an approved service plan and in accordance with regulations promulgated by the department...." (Stats.1982, ch. 978, § 35.)

The version of section 16501 in effect in 1988 substantially included the above provisions (Stats.1987, ch. 1353 § 4, operative Feb. 1, 1988), as does the current version.

[4] Government Code section 815.6 provides as follows: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." (Emphasis added.)

[5] Government Code section 815.2 provides as follows:

"(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

"(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."

Government Code section 820.2 provides as follows: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."

[6] Welfare & Institutions Code section 300 provides that children found to be abused, neglected, abandoned or otherwise in need of the care and protection which should be, but is not, being provided by their parents, may be made dependent children of the juvenile court under specified conditions. Welfare & Institutions Code section 272 provides that a county board of supervisors may delegate to a county welfare department all or part of the duties assigned to the probation officer under section 300 and sections which follow.

[7] Government Code section 821.6 provides as follows: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause."

[8] In 1987, Regulations 30-130 and 30-132 of the DSS Manual required a county welfare agency to respond (1) immediately, (2) within three days, or (3) within ten days to any requests or referrals for service which alleged that a child was endangered by abuse, neglect or exploitation. Immediate response was required if a law enforcement agency requested emergency response, or if any request or referral indicated the child was in imminent danger of physical pain, injury, disability, severe emotional harm or death. Response within ten days was required to requests or referrals alleging "general neglect," and response within three days was required for requests or referrals falling between those two extremes in level of urgency. (California-DSS-Manual-SS, Manual Letter No. 85-74, effective December 1, 1985, Regulations 30-130, 3-132.)

[9] Other examples include (1) the decision to release a juvenile offender to the custody of his mother and the determination of the degree of supervision to exercise over the custodian (Thompson v. County of Alameda, supra, 27 Cal.3d at p. 749, 167 Cal.Rptr. 70, 614 P.2d 728), and (2) the selection of an adoptive placement for a minor (Ronald S. v. County of San Diego, supra, 16 Cal.App.4th at pp. 896-897, 20 Cal.Rptr.2d 418).

[10] Other cases have condemned the (1) failure to warn a potential foster parent of dangerous propensities of a minor placed in her care (Johnson v. State of California, supra, 69 Cal.2d at p. 797, 73 Cal.Rptr. 240, 447 P.2d 352), (2) negligent procedures in the investigation of an automobile accident (McCorkle v. City of Los Angeles, supra, 70 Cal.2d at p. 261, 74 Cal.Rptr. 389, 449 P.2d 453) and (3) failure of a police officer to warn a prosecution witness of potential danger from the defendant's associates (Wallace v. City of Los Angeles, supra, 12 Cal.App.4th at pp. 1403-1404, 16 Cal.Rptr.2d 113; Carpenter v. City of Los Angeles (1991) 230 Cal.App.3d 923, 935, 281 Cal.Rptr. 500).

[11] Examples of such actions are the determination of whether an applicant for Aid to Families with Dependent Children (AFDC) meets applicable eligibility standards (Ramos v. County of Madera, supra, 4 Cal.3d at p. 694, 94 Cal.Rptr. 421, 484 P.2d 93) and the recording of a survey by a county surveyor (Wheeler v. County of San Bernardino, supra, 76 Cal.App.3d at p. 849, 143 Cal.Rptr. 295).

[12] We held in Alicia T., supra, that section 821.6 immunizes social workers from liability for their conduct in the performance of quasi-prosecutorial functions relating to proceedings under Welfare & Institutions Code section 300. (222 Cal.App.3d at p. 883, 271 Cal.Rptr. 513.) We do not retreat from that holding. However, the same immunity does not extend to other functions of social workers.

[13] State grants-in-aid are provided to counties under Welfare & Institutions Code section 10001 for the purpose of supporting, maintaining and protecting abused and neglected children, as well as other persons in need of such assistance, "within the limits of public resources." (Welf. & Inst.Code, § 10001.)

[14] At the hearing on Jimmee's motion in limine to exclude evidence of budgetary constraints, the court ruled that: (1) Maxwell and other individual county employees would be allowed to testify as to what each was able to accomplish in the time and with the resources available to him or her during the time when Jimmee was placed with Bullock; (2) however, before any party would be allowed to adduce testimony that, as a general matter, failures by DCS to fulfill its mandatory duties were owing to financial constraints, such party would be required to approach the bench and make an offer of proof as to the relevancy of such testimony.

[15] Moreover, any impartial review of the record demonstrates beyond doubt that this case is about the negligence of the County and its employees, not a shortfall in County resources. In this regard, we cannot help observing that Maxwell's belief that Jimmee's placement was "stable," and therefore visits were not needed, should have been exploded by the receipt of a child abuse "hotline" call, reporting that a child in Bullock's care had two black eyes. Regulation 30-132 would seem to have required a personal response to such a call within three days, or ten at the longest. Maxwell testified that she believed the report was made by Latitia and was fabricated. However, the presence or absence of black eyes could readily have been verified and certainly should have been. It is both preposterous and unacceptable to suggest that Maxwell's failure to check on the abuse allegation through a personal visit was caused by the County's budget problems.

[16] In this respect, the circumstances of this case resemble those in another recent case, Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 32 Cal.Rptr.2d 136 [94 Daily Journal D.A.R. 10014]. In Rosh, the Court of Appeal declined to disturb a jury's apportionment of 25% of the liability for the plaintiff's injury to an assailant who deliberately shot him and 75% to his employer's private security company, which failed to protect him. The court's holding was based in part upon the circumstance that the security company was in the business of providing protection from criminal activity at the plaintiff's workplace. (94 Daily Journal D.A.R. at p. 10017.)

[17] Question 4 on the special verdict form posed the following query:

"Assuming that 100% represents the total negligence which was the legal cause of the plaintiff's damages, what percentage of this 100% is due to the negligence of the following:

Answer: To Defendant County of Los Angeles ____

Defendant Zsa Zsa Maxwell ____

Defendant Clara Johnson, Ph.D. ____

Other person Dorothy Bullock ____"

[18] Weidenfeller was followed by an opinion of the Ninth Circuit in Martin v. United States (9th Cir.1993) 984 F.2d 1033. While on an outing with other children in a government operated day care center, Jennifer Martin was abducted, owing to serious negligence by the center's director, and was raped. She sued and recovered economic and noneconomic damages, which the District Court refused to apportion between the government and the kidnapper, who apparently never was caught. (984 F.2d at 1034-1035.) The United States appealed, arguing California Civil Code section 1431.2 limited its share of the noneconomic damages. (Ibid.) The court agreed, citing Weidenfeller, and reversed for an apportionment of damages. (Id. at pp. 1038-1040.)

[19] BAJI 16.00 reads in pertinent part as follows:

"Question No. 6: Assuming that 100% of the total negligence which was the cause of the plaintiff's [injury] [damage], what percentage of this 100% is due to the contributory negligence of the plaintiff and what percentage of this 100% is due to the negligence of the defendant[s] [and all other persons]?

         "Answer:      To           ____________________  __________  %
                       plaintiff
                     "[To           ____________________  __________  %]
                       plaintiff
                     "To defendant  ____________________  __________  %
                     "[To           ____________________  __________  %]
                       defendant
                     "[Other        ____________________  __________  %]
                       person
                                         (identify)
                      ...                  "TOTAL         __________  % ..."

Language in the standard special verdict form which refers to the contributory negligence of the plaintiff was obviously unsupported by the evidence in this case and was deleted.

[20] BAJI 16.12 provides: "Assuming that 100% represents the total causes of the plaintiff's [injury] [damage], what percentage of this 100% is attributable to the comparative fault of the plaintiff and what percentage of this 100% is attributable to the defendant[s] [and all other persons]?" (Emphasis added.)

[21] When the jury submitted a question about the special verdict form the trial judge summoned the jurors and the following exchange took place:

"THE COURT: You sent a note to the Court through the court liaison and I will read it for the record here. [p] It says, 'Could you please address the addition of Dorothy Bullock as "other person" in Question 4, item D ..., in general, and as it pertains to negligence as a legal cause?' [p] Now, I am reluctant to get into any kind of rambling discourse of the law. As you can see, the instructions that you have received are rather specific and they are specific because we want to have as correct a statement of the law as possible. [p] Let me answer your question this way and then ask you if that doesn't answer your question. After you go back into the jury room you can be a little bit more specific in your question. [p] Then we can focus a little more specifically on the answer. [p] Question No. 4, the special verdict form, requires the jury to apportion fault among the parties and any other person whose fault has been contributed as a legal cause to the plaintiff's injuries. [p] You are assessing or apportioning that fault between the parties who are listed there and you assess a percentage of fault to each person or entity listed anywhere from 0 percent, if you don't feel they are at fault at all, to 100 percent if you feel they are totally at fault. But the answer has to end up as 100 percent. [p] I would also encourage you to reread those instructions or parts--you have them in the jury room--that deal with your concerns. [p] You may have somebody just read them out loud so everybody can hear what it is rather than just one person reading them."

[934 S.W.2d 749] Robert F. Stein, Houston, for Appellants.

Rayborn C. Johnson, Jr., The Woodland, for Appellees.

Before MIRABAL and WILSON^[1], JJ.

OPINION

MIRABAL, Justice.

Plaintiffs/appellants, Edwin Leon Henry and his wife, Roanna Salas Henry, appeal from a summary judgment granted in favor of defendants/appellees, Houston Lighting & Power Company (HL & P) and North Houston Pole Line Corporation (NHPL). We reverse.

The uncontroverted summary judgment evidence shows the following: On July 26, 1990, NHPL, a contractor of HL & P, severed an underground gas line while drilling a hole for a utility pole. NHPL reported the incident to Entex, and plaintiff, Edwin Leon Henry, in his capacity as an employee of Entex, responded to the call. While Henry was working in a hole attempting to repair the gas line, one of his fellow employees shouted "fire" because the area was engulfed in smoke. Henry looked up and saw smoke. In his attempt to escape, Henry jumped out of the hole, and as he rushed through the cloud of smoke, he stumbled and ran into a utility pole, badly injuring his left shoulder.

A few minutes later, an Entex foreman came from a nearby backyard and told Henry that the smoke was caused by a mosquito fogger that was pumping fog into a manhole across the fence from where Henry was working. The gas escaping from the main gas line never ignited.

The crew operating the mosquito fogger was not at the scene prior to the arrival of the Entex crew. The NHPL crew was at the scene when the Entex crew arrived, but they left the scene before Henry's accident occurred.

Plaintiffs filed suit, alleging that defendants were negligent in creating the danger of the ruptured gas pipeline, and that their negligence was the proximate cause of Henry's injuries. The petition specifically alleged the following:

The acts and/or omissions of these Defendants amounting to negligence are as follows:

[934 S.W.2d 750] 1. In negligently rupturing the gas pipeline in question, thereby putting the Plaintiff, Edwin Leon Henry, in jeopardy;

2. In failing to adequately and timely notify Entex of the full extent of the drilling of holes for utility poles in the utility easement, to allow for the identification of the location of the natural gas pipeline in issue in advance of drilling;

3. Having discovered that the location of the underground natural gas pipeline was not marked, in failing to wait to drill holes into the utility easement until the true location of such pipeline was identified;

4. In locating the hole to be drilled in a location that had not been checked out for the location of a natural gas pipeline;

5. In ordering the hole to be drilled without taking usual precautions to prevent drilling into a natural gas pipeline;

6. In ordering the hole to be drilled, representing the area to be free of a natural gas pipeline when, in fact, no investigation or an inadequate investigation was made as to the true location of the pipeline[.]

Defendants moved for summary judgment on the following three grounds: (1) as a matter of law, neither NHPL's nor HL & P's action was a proximate cause of plaintiff Edwin Leon Henry's accident or injury; (2) as a matter of law, a new and independent, intervening cause proximately caused his accident and injury; (3) any claims plaintiff Roanna Salas Henry has against NHPL or HL & P are derivative of the claims of plaintiff Edwin Leon Henry, and since he has no legal claim against NHPL and HL & P, she has no legal claim against them, either.

In a single point of error, plaintiffs assert the trial court erred in granting the motion for summary judgment.

A defendant is entitled to summary judgment if it disproves an essential element of the plaintiff's cause of action as a matter of law. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex.1995); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). In reviewing a summary judgment, this court considers the evidence in the light most favorable to the non-movant and resolves any doubt in the non-movant's favor. Doe, 907 S.W.2d at 477; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex.1985).

The elements of a negligence cause of action are a legal duty, a breach of that duty, and damages proximately caused by the breach of duty. Doe, 907 S.W.2d at 477; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Defendants argued in their motion for summary judgment that neither NHPL nor HL & P proximately caused appellant's accident or injury.

The components of proximate cause are cause in fact and foreseeability. Doe, 907 S.W.2d at 477; Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). The test for cause in fact is whether the negligent "act or omission was a substantial factor in bringing about injury," without which the harm would not have occurred. Doe, 907 S.W.2d at 477 (quoting Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex.1995)) (emphasis added ); Lear Siegler, 819 S.W.2d at 472. Cause in fact is not shown if the defendant's negligence did no more than furnish a condition which made the injury possible. Doe, 907 S.W.2d at 477; Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995); see Bell v. Campbell, 434 S.W.2d 117, 120 (Tex.1968). "The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of resulting injuries ... [and] justify the conclusion that such injury was the natural and probable result thereof." Doe, 907 S.W.2d at 477 (quoting Boyd v. Fuel Distribs., Inc., 795 S.W.2d 266, 272 (Tex.App.--Austin 1990, writ denied)). Even if the injury would not have happened but for the defendant's conduct, the connection between the defendant and the plaintiff's injuries simply may be too attenuated to constitute legal cause. Id.; see Allbritton, 898 S.W.2d at 775; Lear Siegler, 819 S.W.2d at 472.

In their response to the motion for summary judgment, plaintiffs relied on deposition testimony, interrogatory answers, and admissions that showed the following:

-When a gas main is severed, an extremely dangerous condition is instantly created by virtue of the escape of natural gas from [934 S.W.2d 751] the severed gas main. When natural gas escapes from a severed gas main, it can ignite or explode very, very easily simply by being exposed to a spark.

-Whenever someone is working in and around escaping natural gas, it is prudent to assume that the presence of smoke is an indication of fire.

-The NHPL foreman testified that when the gas main was severed and natural gas was escaping, NHPL "got our trucks out of there and went down the road a little ways" because of the danger of fire and danger of an explosion. The foreman stated it is good common sense to get away from the gas as fast as you can. He could see the natural gas was blowing about two feet into the air out of the severed gas line.

-The need to escape quickly from a severed gas main is so clear that Entex employees are taught to formulate escape routes in advance.

-Mr. Henry testified that he had been trained to always find the safest escape route before he would enter a hole to repair a gas leak. Before he entered the ditch in the present case, he had determined the safest escape route in the event of an emergency. When he heard "Fire!," he had gas in his clothes and everywhere, and he immediately thought to "just get the hell away from there," and he traveled the safe route he had pre-planned.

Defendants rely, in part, on Lear Siegler. In that case, Mr. Perez, while working for the Texas Highway Department, drove a truck pulling a flashing arrow sign behind a sweeping operation on a state highway. Lear Siegler, 819 S.W.2d at 471. The function of the sign, which was manufactured by Lear Siegler, was to warn traffic of the highway maintenance. Id. Perez had stopped his vehicle on the traveled portion of the road in order to repair the flashing arrow sign, which had malfunctioned. Id. The driver of a van, who had fallen asleep at the wheel, struck the sign, which in turn struck Perez and fatally injured him. Id.

Perez's survivors and estate sued Lear Siegler on negligence and product liability theories. Id. Summary judgment in favor of Lear Siegler was upheld by the Texas Supreme Court because the operation of the flashing arrow sign would have had no effect on the sleeping driver's conduct. Id. Perez would not have been at the place where the collision occurred at the time it occurred if the sign had not malfunctioned, but the court held that these particular circumstances were too remotely connected with Lear Siegler's conduct to constitute legal cause. Id. at 472. "Legal cause is not established if the defendant's conduct or product does no more than furnish the condition that makes the plaintiff's injury possible." Id. The court reasoned:

Negligent conduct is a cause of harm to another if, in a natural and continuous sequence, it produces an event, and without the negligent conduct such event would not have occurred. [Citations omitted.] There may be more than one proximate cause of an event. [Citations omitted.] Though we have not adopted the RESTATEMENT (Second) of TORTS in its entirety in Texas, we find its discussion of "legal cause" instructive:

In order to be legal cause of another's harm, it is not enough that the harm would not have occurred had the actor not been negligent. * * * [T]his is necessary, but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff's harm. The word "substantial" is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called "philosophic sense," which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called "philosophic sense," yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.

RESTATEMENT (SECOND) OF TORTS § 431, comment a (1965).

819 S.W.2d at 472. The Lear Siegler court specifically recognized that "there may be [934 S.W.2d 752] cases in which ... a defendant's negligence exposes another to an increased risk of harm by placing him in a particular place at a given time." Id. at 472 (emphasis added). However, under the particular facts of that case, the court concluded the happenstance of place and time was too attenuated from the defendant's conduct for liability to be imposed. Id.

The facts of the present case are materially distinguishable from those in Lear Siegler. Here, defendants' alleged negligence did not simply cause Henry to be in the wrong place at the wrong time, as in Lear Siegler; rather, defendants' acts directly caused the dangerous gas leak that required extreme caution and evacuation in the event of a fire, or any indication of a fire. The connection between defendants' acts and Henry's injuries are not too attenuated to constitute legal cause.

Defendants also rely on Union Pump Co. v. Allbritton, 898 S.W.2d at 773. There, a pump at a chemical plant caught fire and ignited the surrounding area. Allbritton, 898 S.W.2d at 774. A plant employee assisted in abating the fire. Id. After the fire was extinguished, the employee was injured when she slipped off a pipe rack that was wet because of the fire; the employee was still wearing fireman's hip boots and other fire fighting gear when the injury occurred. Id. The employee sued the manufacturer of the pump that had caught fire, asserting negligence and strict liability theories of recovery, and alleging that the defective pump was a proximate or producing cause of the employee's injuries. Id. The Texas Supreme Court upheld a summary judgment for the pump manufacturer, stating:

Even if the pump fire were in some sense a "philosophic" or "but for" cause of Allbritton's injuries, the forces generated by the fire had come to rest when [the employee] fell off the pipe rack. The fire had been extinguished, and Allbritton was walking away from the scene. Viewing the evidence in the light most favorable to Allbritton, the pump fire did no more than create the condition that made Allbritton's injuries possible. We conclude that the circumstances surrounding her injuries are too remotely connected with Union Pump's conduct or pump to constitute a legal cause for her injuries.

Id. at 776.

The present case is distinguishable from Allbritton by the fact that the crisis created by NHPL was on-going--the dangerous gas leak had not been repaired, and therefore the forces generated by NHPL's acts had not "come to rest."

We conclude that defendants did not prove, as a matter of law, that their alleged negligence was not a "cause in fact" of Henry's injuries.^[2]

Defendants next argue that, as a matter of law, Henry's injuries were not foreseeable, and therefore defendants' alleged negligent acts did not proximately cause Henry's injuries.

Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Doe, 907 S.W.2d at 478; Travis, 830 S.W.2d at 98 (Tex.1992); Nixon, 690 S.W.2d at 549-50. The particular accident need not be foreseen, but the injury must be of such a general character as might reasonably have been anticipated. Nixon, 690 S.W.2d at 551; Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939).

Defendants rely on Scurlock Oil Co. v. Birchfield, 630 S.W.2d 674 (Tex.App.--Houston [1st Dist.] 1981, no writ). There, the evidence established that the defendant had negligently caused an oil spill upon a public road, and the plaintiff, a public employee, wrenched his back while shoveling sand on the oil spill. Birchfield, 630 S.W.2d at 677. This Court noted that the defendant could have reasonably foreseen that other drivers upon the roadway, who had no knowledge of the oil spill, might receive injuries. Id. [934 S.W.2d 753] However, we held that "it cannot be said that [the defendant,] as a person of ordinary intelligence and prudence, should have anticipated that [the plaintiff] would sustain an injury by wrenching his back while performing the very job he was employed to do, i.e., the placement of sand on the oil spill." Id.

In Birchfield, it was relevant that the forces involved in or generated by the oil spill had come to rest, and no one was in any real or apparent danger from them. Oncoming traffic had been flagged down and diverted to the portion of the roadway that was free from the oil spill. 630 S.W.2d at 676. The plaintiff's injury was suffered during the routine clean-up of the oil spill. Id. The present case is clearly distinguishable. Here, the natural gas was still shooting about two feet into the air from the severed gas line at the time of Henry's injury--the forces generated by the gas leak had clearly not "come to rest". There was evidence that it was certainly foreseeable that an emergency crew would be dispatched to fix the gas leak; that the crew would be in danger of serious injury or death as they attempted to repair the highly flammable gas leak; that the crew would, therefore, naturally be apprehensive about their safety, and that any indication of the presence of smoke or sparks or fire would cause immediate flight from the area of the gas leak; and that in the process of such immediate flight, crew members might be injured.

Defendants also rely on Snellenberger v. Rodriguez, 760 S.W.2d 237 (Tex.1988), where the court held that a police officer's collapse while controlling a crowd at an auto-pedestrian accident scene, and his subsequent death from a heart attack, were not a foreseeable result of the negligence of the driver of the vehicle involved in the accident. Id. at 237-38. Again, the forces involved in or generated by the auto-pedestrian accident had come to rest. The police officer was notified after the accident had occurred, and he arrived at the scene to control the crowd and perform post-accident duties. Id. The Snellenberger case is clearly distinguishable from the present case.

Defendants additionally cite City of Bishop v. South Texas Elec. Co-operative, Inc., 577 S.W.2d 331 (Tex.Civ.App.--Corpus Christi 1979, no writ). However, in that case the issue of foreseeability went to the jury, and the jury found the injury was not foreseeable; on appeal, the court reviewed the sufficiency of the evidence to support the jury's finding. Here, we apply a different standard of review, because the trial court granted a summary judgment in this case. Therefore, City of Bishop is not helpful.

When considering the question of "foreseeability", the key inquiry is whether the injury is of such a general character that it might reasonably have been anticipated; the particular accident need not be foreseen. Nixon, 690 S.W.2d at 551. We hold that defendants did not prove, as a matter of law, that Henry's injury was not foreseeable.

Defendants next assert that, as a matter of law, a new and independent, intervening cause proximately caused Henry's accident and injury, and therefore defendants are not liable. Defendants argue that Henry's injury was caused by the chance operation of a mosquito fogging machine in the area of the gas leak, combined with the fellow employee yelling "Fire!," and Henry's failure to remove his goggles as he rushed out of the ditch.

Intervention of an unforeseen cause of a plaintiff's injury does not necessarily mean that there is a new and independent cause of such a character as to constitute a superseding cause which will relieve the defendant of liability. Bell v. Campbell, 434 S.W.2d 117, 121 (Tex.1968); Teer v. J. Weingarten, Inc., 426 S.W.2d 610, 614 (Tex.Civ.App.--Houston [14th Dist.] 1968, writ ref'd n.r.e.). The intervening cause of the plaintiff's injury, even if unforeseeable, may be a concurring cause if the chain of causation flowing from the defendant's original negligence is continuous and unbroken. Bell, 434 S.W.2d at 121. The intervening cause, if it is a concurring cause, does not break the chain of causation between the defendant's negligence and the plaintiff's injury simply because the intervening cause was unforeseeable. Id.

Defendants argue that Bell v. Campbell supports the validity of the summary judgment [934 S.W.2d 754] in the present case. In Bell, two automobiles collided on a highway, and as a result, a trailer became disengaged from one of the vehicles and overturned in the north lane of the highway. Id. While three men were attempting to remove the trailer from the highway, a third vehicle struck them. Id. The issue on appeal was whether the jury should have received a jury question inquiring whether the negligence of the drivers of the first two vehicles was a proximate cause of the death of a man who was hit by the third vehicle as he was attempting to remove the trailer. Id. The supreme court held that no such jury issue was raised by the evidence, reasoning:

The active and immediate cause of the second collision ... was an entirely independent agency, [the third vehicle.] All forces involved in or generated by the first collision had come to rest, and no one was in any real or apparent danger therefrom.

....

All acts and omissions charged against [the drivers of the first two vehicles] had run their course and were complete. Their negligence did not actively contribute in any way to the injuries involved in this suit.

434 S.W.2d at 120, 122.

As with the issues of "cause in fact" and "foreseeability," the issue of "intervening cause" as a bar to a defendant's liability is dependent on whether the forces generated by the defendant's negligence have "come to rest." As we have already discussed, the present case is distinguishable from Bell, and defendants' other cases, in that here, at the time Henry was injured, the forces generated by NHPL's acts had not "come to rest."

We conclude that defendants did not prove, as a matter of law, that the intervening cause here was a superseding cause, rather than a concurring cause.

Because defendants failed to prove their entitlement to summary judgment as a matter of law, we sustain plaintiffs' sole point of error.

We reverse the summary judgment and remand the case to the trial court.

[1] Former Chief Justice Oliver-Parrott sat for oral argument but did not participate in the opinion.

[2] We note that defendants admit in their brief that "leaking gas is a dangerous condition and, had Henry been burned or killed upon explosion or ignition of the leaking gas or had he been overcome by gas fumes, his injury or death may well have been a natural and probable result of NHPL's alleged negligent act."

DIANE DARBY

(Widow and Administratrix of the Estate of Kevin Alan Darby, deceased) Claimant

v. 

THE NATIONAL TRUST, Respondent

MR I MCLAREN QC (instructed by Messrs Banner Jones Middleton Solicitors, Chesterfield S40 1JY) appeared on behalf of the Claimant

MR R WALKER QC (instructed by Messrs Hextall Erskine, London E1 8ER) appeared on behalf of the Respondent

J U D G M E N T

Monday, 29th January 2001

LORD JUSTICE SCHIEMANN: May LJ will give the first judgment.

LORD JUSTICE MAY: Hardwick Hall, near Chesterfield in Darbyshire, is one of the National Trust's finest properties. It has many visitors both to the hall itself and to its extensive grounds. In the grounds there are, I think, five ponds. Three of these are reasonably close to each other. Two of them are used for fishing, and the National Trust has taken steps to prevent their use for other purposes, including swimming. These steps have been largely successful.

The third pond is called Row Pond 5. It is not used for fishing. It is oval in shape and approximately 60 to 70 feet across. The water is shallow at the edges but towards the centre its depth is at least such that an average swimmer could not stand on the bottom. It may in places be as deep as 10 feet. In the summer when it is warm visitors have used the fond for paddling and swimming.

On 23rd August 1997 Kevin Dodd tragically drowned in this pond. It had been an extremely hot day and at about 7.00 in the evening he went with his wife, the claimant, and the four youngest of their five children to Hardwick Park. Their eldest son, Ryan, was not with them but he had been swimming in the pond earlier that day. The younger children went paddling. After parking their car Kevin also went in the water. The water was murky, but Mrs Darby considered it to be safe because she had seen others swimming and paddling in it before. Her husband was a competent swimmer and she had no reason to believe that there would be any difficulty. Kevin, her husband, swam towards the centre of the pond. The children were still paddling near its edge. He began to play a game which it seems they had played before and which they called “hide a boo”. Kevin would dip beneath the water for a second or two and then pop up again in the same place, smiling. He did this for about five minutes. His wife was watching. She then saw him go underwater, reappear, and put his arms straight in the air, calling her name. She knew that he was in trouble. He sank beneath the water again and effectively was drowned. Mrs Darby called for help. Mr Kevin Morris, who was walking beside one of the other lakes, came to help, and he bravely searched for Mr Darby in the pond and eventually came across him and managed to drag him out. He had been under water for many minutes and it is surprising that he was not at that stage dead. He never, I think, regained consciousness, and he died in hospital on 9th September 1997.

It is evident that visitors quite frequently swam or paddled in this pond. The defendants must be taken to have known this. They did in fact little to discourage or prevent it. There were no warning notices around or in the vicinity of the pond. There were no life‑saving equipment. There was a notice somewhere near an entrance to a car park which stated, among other information about opening hours, charging, fishing tickets, the words “Bathing and boating not allowed.” This was legible but not conspicuous and it was part of other information.

The pond was not systematically patrolled. Wardens who had other duties including, for instance, collecting money from fishermen, would check the ponds from time to time and discourage people from swimming in them, telling them of the danger of Weils disease. But there was, so it appears, no set system.

These proceedings were brought by Mrs Darby on her own behalf and on behalf of her husband's estate against the National Trust. She says that they were in breach of the common duty of care under section 2 of the Occupiers' Liability Act 1957 and were as such liable for her husband's death.

On 3rd March 2000 Mrs Assistant Recorder Wilson heard the action and gave judgment for the claimant in the sum of £114,194. This is the defendant's appeal brought by leave of Swinton Thomas LJ against the finding against them on liability. There are also, contingent on the outcome of that appeal, appeals by both the claimant and the defendants against the assistant recorder's quantification of damages.

The claimant relied on an expert report of Rebecca Kirkwood, who is a Water and Leisure Safety Consultant to the Royal Society for the Prevention of Accidents. Evidence on behalf of the defendants was limited to those witnesses whose statements had been disclosed in accordance with a directions order in September 1999. Their only witness was Brian Ellis, who was employed by the National Trust as a part‑time warden at Hardwick Hall. They had no expert evidence to match that of Rebecca Kirkwood, apparently having failed to disclose any in accordance with the directions order.

The assistant recorder accepted Rebecca Kirkwood's evidence in full. Her evidence included that, on average, approximately 450 people a year drown in the United Kingdom, the preponderance of these being young men swimming in open water. Good swimmers by indoor standards may find emersion into cold water dramatically reduces their swimming ability. The Royal Society for the Prevention of Accidents does not advocate automatic fencing of all deep water. This would be impracticable, aesthetically damaging and ineffective in terms of denying access to determined swimmers. But as a minimum “No Swimming” notices should be installed. Particular attention should be given to places where open water swimming is known to happen. Rescue arrangements are important and lifebuoys and rescue devices are frequently to be found around open water. But a person in difficulties in water will be fortunate if there are people available to help in time. Rescue arrangements should never be relied upon in isolation to prevent drowning.

Miss Kirkwood's opinion was that the Row Ponds were particularly unsuitable for swimming. The water was deep in the middle and generally murky, and the ground at the edges was uneven. There were no clear warning notices. In her opinion, the National Trust should have assessed the risks to their visitors and taken steps which they did not take. The sign near the car park was inadequately placed and inadequately clear for this purpose. There should have been appropriate signs at the bottom and top approaches to the ponds beside the main part and there should have been “No Swimming” signs immediately beside the water itself. There should have been greater staff presence to enforce a “No Swimming” rule. In short, there were inadequate warnings and inadequate steps to prevent people swimming in the pond.

The claimant's case on liability in the first instance is very simple. Mrs Darby and her husband had often seen people swimming in the pond and thought it was safe. Her unchallenged evidence was that if there had been “No Swimming” notices around the pond saying that it was dangerous her husband would not have gone swimming. The National Trust did not take such care as in all the circumstances of the case was reasonable to see that her husband would be reasonably safe in using the premises. This want of care caused her husband's death. She relies on Miss Kirkwood's evidence.

The assistant recorder found that the National Trust failed to install or erect adequate warning notices; that they failed to secure that park wardens acted so as to prevent persons bathing or swimming; and that they failed to have lifebouys and other rescue devices. In essence, her finding was to accept, as she explicitly did, the opinion of Miss Kirkwood.

Mr Walker QC, on behalf the National Trust, submits that the assistant recorder's findings of negligence were all variants of the finding that the defendant ought not to have permitted Mr Darby to swim in the pond at all, as opposed to a failure to provide adequate rescue facilities. This in my view is correct, although, as submissions developed it became clear that the claimant's case rested mainly on the proposition that the National Trust should have had “No Swimming” notices around the pond itself.

Mr Walker submits that Mrs Kirkwood's relevant evidence was only an expression of her own opinion and that the question whether the National Trust were in breach of a relevant duty was a matter for the court. I think that this is correct. The crux of Mr Walker's submission is that the pond had no relevant characteristics making it more dangerous than any other pond, nor did it have any relevant hazards which were not readily apparent. The fact that the water was murky and that it was cold (if it was, which was not established other than by incidental evidence from Mr Morris who retrieved Mr Darby from it) and that its depth in the centre may have been such that bathers would be out of their depth, is entirely typical of such ponds and is obvious. Further, all these matters were known to Mr Darby who had swum in the pond before and who had spent five minutes ducking in and out of the water in the middle of the pond.

Mr Walker relies on Staples v West Dorset District Council [1995] PIQR 439 where the plaintiff fell on an obviously slippery surface on the Cobb at Lyme Regis and the Court of Appeal held that there was no duty on an occupier in the circumstances of that case to warn against a danger which was obvious. Kennedy LJ said at page 442 of that case:

“It is, in my judgment, of significance that the duty is a duty owed by the occupier to the individual visitor, so that it can only be said that there was a duty to warn if without a warning the visitor in question would have been unaware of the nature and extent of the risk. As the statute makes clear, there may be circumstances in which even an explicit warning will not absolve the occupier from liability (see s.4(a) above); but if the danger is obvious, the visitor is able to appreciate it, he is not under any kind of pressure and he is free to do what is necessary for his own safety, then no warning is required. So, for example, it is unnecessary to warn an adult of sound mind that it is dangerous to go near the edge of an obvious cliff (see Cotton v Derbyshire Dales District Council (June 10, 1994, CA, unreported)). In the present case, as Mr Tyson for the respondent acknowledges, he must succeed under the Occupiers' Liability Act or fail, because, although the judge also referred to negligence at common law, there was no other relationship between these parties that could give rise to liability.”

Evans LJ agreeing with the judgment of Kennedy LJ said this:

“I share his reluctance, for the reasons he has given, but I find myself driven to the conclusion that the respondent cannot attribute negligence to the appellants in circumstances where nothing was known to them, or would have been known to them if previous inspections had been made, which he did not know and appreciate for himself. If the cause of his accident was the general state of the algae‑covered strip at the seaward edge of the Cobb, combined with the pronounced 1:5 slope at the top, then the danger posed was obvious and in fact was appreciated by him. If the cause was an isolated slippery patch, which had not manifested itself as a source of potential danger during the 165‑year history of the Cobb, then that was not something which the appellants should have foreseen, nor is it clear what the terms of a specific warning would have been. Whichever it was, the appellants cannot be held liable in negligence by reason of their failure to erect warning notices before this accident occurred.”

For the respondent, Mrs Darby, there was some difference of emphasis in the submissions made on her behalf by leading and junior counsel. Mr Herbert submitted that swimming in this pond had been condoned for years. The pond was unsafe. It was deep, murky and cold. It was always foreseeable that a swimmer might get into difficulties. If the National Trust had made a risk assessment, they would have gone to an organisation such as the Royal Society for the Prevention of Accidents to whom they had been for advice on at least one other site. The Royal Society would have advised them that this pond was unsafe. This was a pond where people were known to swim and that is what distinguished it from other areas of water around the country and the coast. The National Trust, as an occupier under section 2(2) of the Occupiers' Liability Act 1957, owed a duty to take such care, as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

Mr Herbert submits that on the evidence of Miss Kirkwood the pond was not reasonably safe as a place in which to conduct unsupervised swimming, yet the defendant permitted persons on the premises so to use it. Although the occupier might seek to discharge the duty by a warning (see section 2(4) of the 1957 Act) there was no such effective warning. In deciding whether a measure is reasonable, the court should have regard to the reasonably foreseeable risk, the nature of the injury of the risk which materialises and the measures needed to combat the risk. On the evidence of Miss Kirkwood, the risk of drowning was plainly foreseeable since several hundred people drown in circumstances similar to those of Mr Darby each year and in many cases the cause of the drowning is not easy to explain in detail.

Mr McLaren QC, when pressed, was inclined, I think, to accept, that the case which depended alone on the risk of drowning was not strong, although he vigorously supported the assistant recorder's conclusion. He submitted that it drew strength from the admitted risk of a swimmer contracting Weils disease. There was no systematic evidence as to the nature of Weils disease, although I understand it to be an unpleasant and occasionally fatal condition transmitted from rats' urine. Mr McLaren submitted that there was a risk which people might not appreciate, the risk of cold water leading to those who are good swimmers in warm swimming pools getting into difficulties in open water and drowning. Putting up a warning notice was a small thing to do and in the circumstances which included the risk of Weils disease entitled the assistant recorder to reach the conclusion as to duty that she did. Absent the evidence about Weils disease, Mr McLaren accepted that the finding would have been less compelling. The risk of death by drowning is foreseeable although Mr McLaren accepted that it was very unlikely and might not by itself be sufficient to sustain the claim. Mr Herbert did not agree with that concession.

The risk of Weils disease required a notice. It is permissible, submitted Mr McLaren, for the court to conclude that there was a duty to take a step for the purpose of guarding against Weils disease which would in fact have prevented death by drowning. The cost and expense of the sign would not have been great, and the sign, whose main purpose may have been to prevent the effects of Weils disease, would also have given effective warning against the danger of drowning.

Unpleasant though Weils disease, I have no doubt, is, it was not the kind of risk or damage which Mr Darby suffered, and any duty to warn against Weils disease cannot, in my judgment, support a claim for damages resulting from a quite different cause. I refer to the opinion of Lord Hoffmann in South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191 at 212. He there cites from the speech of Lord Bridge of Harwich in Caparo at 627 in these terms:

“It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.”

Lord Hoffmann then went on:

“In the present case, there is no dispute that the duty was owed to the lenders. The real question in this case is the kind of loss in respect in which the duty was owed.”

And on the same page, Lord Hoffmann continues as follows:

“There is no reason in principle why the law should not penalise wrongful conduct by shifting on to the wrongdoer the whole risk of consequences which would not have happened but for the wrongful act. Hart and Honore on Causation in the Law 2nd ed. (1985), p 120, say that it would, for example, be perfectly intelligible to have a rule by which an unlicenced driver was responsible for all the consequences of his having driven, even if they were unconnected with his not having a licence. One might adopt such a rule in the interests of deterring unlicensed driving. But that is not the normal rule. One may compare, for example, The Empire Jamaica [1995] P 259, in which a collision was caused by a 'blunder in seamanship of... a somewhat serious and startling character' (Sir Raymond Evershed MR at p 264) by an uncertified second mate. Although the owners knew that the mate was not certificated and it was certainly the case that the collision would not have happened if he had not been employed, it was held in limitation proceedings that the damage took place without the employers' 'actual fault or privity' (section 503 of the Merchant Shipping Act 1894) because the mate was in fact experienced and (subject to this one aberration) competent. The collision was not therefore attributable to his not having a certificate. The owners were not treated as responsible for all the consequences of having employed an uncertificated mate but only for the consequences of his having been uncertificated.

Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful. In the case of liability in negligence for providing inaccurate information, this would mean liability for the consequences of the information being inaccurate.”

Lord Hoffmann then proceeded to give the example of the mountaineer with which practitioners are very familiar. Thus, a case which promotes a duty based on the risk of a swimmer catching Weils disease will not, in my opinion, support a breach of duty founded upon a risk of drowning. The risks are of an intrinsically different kind and so are any dependent duties. I do not think that this principle is negated by Mr McLaren's reference to Jolley v Sutton LBC [2000] 1WLR 1082 at 193, since Lord Hoffmann himself emphasised at page 192 that liability cannot depend on a failure to guard against a risk of a different kind from that which should have been foreseen. Failures which are not causative do not give rise to a liability in negligence (see Wood v Benthal Cimpex [1992] 1 PIQR 332).

In my judgement the risks to competent swimmers of swimming in this pond from which Mr Darby so unfortunately succumbed were perfectly obvious. There was no relevantly causative special risk of which the National Trust would or should have been aware which was not obvious. One or more notices saying “Danger No Swimming” would have told Mr Darby no more than he already knew. In my judgment it was for the court, not Miss Kirkwood, to determine whether there was a breach of the Occupiers' Liability Act duty in this case.

Mr Herbert submitted that there was no proper correlation between the risk of swimming in this pond and the risk of swimming in the sea or any other open water. I do not agree. It cannot be the duty of the owner of every stretch of coastline to have notices warning of the dangers of swimming in the sea. If it were so, the coast would have to be littered with notices in places other than those where there are known to be special dangers which are not obvious. The same would apply to all inland lakes and reservoirs. In my judgement there was no duty on the National Trust on the facts of this case to warn against swimming in this pond where the dangers of drowning were no other or greater than those which were quite obvious to any adult such as the unfortunate deceased. That, in my view, applies as much to the risk that a swimmer might get into difficulties from the temperature of the water as to the risk that he might get into difficulties from mud or sludge on the bottom of the pond.

For these reasons I would allow the appeal and enter judgment for the defendants. If that is the view of my Lords the appeals on quantum do not arise for decision.

LORD JUSTICE LATHAM: I agree.

LORD JUSTICE SCHIEMANN: I also agree.

(Appeal allowed with costs not to be enforced without further order; claimant's costs assessed at nil; defendants costs to be paid by the Legal Services Commission; application to appeal to the House of Lords refused).

[487 N.W.2d 108] [439 Mich. 412] Church, Kritselis, Wyble & Robinson, P.C. by J. Richard Robinson, James T. Heos, Lansing, for plaintiff-appellee.

Jeannette A. Paskin, Paskin, Nagi & Baxter, P.C., Detroit, for defendants-appellants.

Plunkett & Cooney, P.C. by Christine D. Oldani, Detroit, for amicus curiae, Michigan Mun. League.

[439 Mich. 413] ON RESUBMISSION

BRICKLEY, Justice.

The plaintiff brought these two actions after his son committed suicide in a Michigan State University Department of Public Safety holding cell. In the first action, the plaintiff sued officers Linda Zezulka, Richard Bernitt and Ferman Badgley, and the three corporations involved in the original construction of the MSU Department of Public Safety building. In the second action, the plaintiff sued Michigan State University in the Court of Claims. On August 4, 1983, the parties agreed to consolidate the two cases into one proceeding. Eventually, the corporate defendants were voluntarily dismissed from the circuit court action, and defendants Bernitt and Badgley were found not liable by a jury. The plaintiff has not appealed any issues related to these defendants. The jury returned a verdict for the plaintiff against Zezulka and the Court of Claims against MSU. Both actions were upheld by the Court of Appeals.

We must determine if a plaintiff can maintain a claim against a governmental entity and its officers for a pretrial detainee's suicide under either state law or 42 U.S.C. § 1983. While this Court's order granting leave to appeal specified eight issues for consideration, only four need resolution:

1) Whether the public building exception, M.C.L. § 691.1406; M.S.A. § 3.996(106), to governmental immunity is applicable to the claims against Michigan State University;

2) Whether the plaintiff presented sufficient evidence of deliberate indifference to support a claim under 42 U.S.C. § 1983 that Zezulka violated Hickey's civil rights;

3) Whether, relative to plaintiff's negligence claims, Zezulka's actions were discretionary-decisional, [439 Mich. 414] affording her the protection of state governmental immunity under Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984); and

4) Whether, relative to the plaintiff's negligence claims, the trial court erred when it failed to give Zezulka's requested standard jury instruction on comparative negligence and a requested instruction on intervening cause.

We hold that the plaintiff's claim against MSU is barred by state governmental immunity. In so holding, we find that the public building exception, M.C.L. § 691.1406; M.S.A. § 3.996(106), is inapplicable to this case. We also hold that the plaintiff presented insufficient evidence of deliberate indifference to support a claim under § 1983 and we reverse the trial court's denial of judgment notwithstanding the verdict on the civil rights claim. Further, we find that Zezulka's actions were ministerial-operational and do not afford her the protection of state governmental immunity, and that the trial court correctly refused to instruct the jury on intervening cause. Finally, the signers of this opinion would hold [487 N.W.2d 109] that the trial court also correctly refused to give an instruction on comparative fault.

We therefore reverse the decisions of the Court of Claims and the Court of Appeals applicable to MSU. We reverse the decisions of the circuit court and the Court of Appeals with regard to the plaintiff's § 1983 claim against Zezulka and direct entry of judgment for the defendant on that claim. Because a majority of the Court has found error in the failure to instruct on comparative fault, we reverse the decisions of the circuit court and the Court of Appeals with regard to the plaintiff's negligence claim and remand for a new trial limited to the issue of the plaintiff's damages.

[439 Mich. 415] I. FACTS AND PROCEDURAL HISTORY

On October 3, 1982, between 1:00 a.m. and 2:00 a.m., Hickey was observed driving erratically on Harrison Road in East Lansing, Michigan. Zezulka, an officer of the MSU Department of Public Safety (DPS), stopped Hickey, administered a number of field sobriety tests, and eventually placed him under arrest for driving under the influence of intoxicating liquor, M.C.L. § 257.625a; M.S.A. § 9.2325(1). Zezulka then transported Hickey to the East Lansing Police Department (ELPD) for Breathalyzer tests. Both Zezulka and ELPD Sergeant Louis Muhn observed that Hickey appeared to be in a good mood and appeared to have a generally positive demeanor. While at the ELPD, Sergeant Muhn asked Hickey for some general background information, which was necessary for the Breathalyzer tests, and observed Hickey for at least twenty minutes prior to Zezulka's departure with Hickey.

Zezulka then requested that she be allowed to transport Hickey to the Ingham County Jail. However, Zezulka's superior denied the request because he was concerned about manpower shortages while she was gone. Zezulka complied with her superior's order and took Hickey to the DPS for processing and photographing. After processing Hickey, Zezulka placed him in a holding cell at about 3:20 a.m. Zezulka did not remove any of Hickey's personal articles or clothing, including his belt, even though the DPS had a written policy to remove personal articles from prisoners. The policy stated:

"[N]o prisoner shall be left unattended unless he is first searched and secured in a segregation room. All offensive and defensive weapons or other objects which could harm an officer, the prisoner or [439 Mich. 416] other prisoners shall be removed and properly secured."

However, Zezulka did advise Hickey that he would soon be taken to the Ingham County Jail.

The Court of Appeals described the holding cell in which Zezulka placed Hickey as "a nine to ten foot high ceiling and a concrete bench along one side. Above the [stone] bench was a heater with a metal mesh that was supported by four metal brackets which extended one to two inches from the wall," 177 Mich.App. 606, 610, 443 N.W.2d 180 (1989), and ran along the upper portion of the wall. The door to the holding cell was solid metal and had a 10 X 10 inch window that officers used to view any detainees. A desk officer monitored any sounds coming from the area through a microphone located in the cell.

After placing Hickey in the holding cell, Zezulka went about her other duties. Although the DPS also had a policy stating that the officer who brings a detainee into the department is responsible to check on the detainee, Zezulka did not check on Hickey until she went to take him to the Ingham County Jail at 3:57 a.m., approximately thirty-seven minutes after she initially placed him in the holding cell.

Upon entering the cell, Zezulka saw Hickey hanging by a noose fashioned from his belt and socks. Hickey had hanged himself from one of the four metal brackets that attached the heating unit to the wall. Despite efforts to revive Hickey, he was pronounced dead on arrival at Sparrow Hospital in Lansing, Michigan.

On November 1, 1982, John Joseph Hickey, Sr., filed a complaint in the Ingham Circuit Court as the personal representative of the John Joseph Hickey, Jr., estate [487 N.W.2d 110] against Zezulka and the other [439 Mich. 417] defendants. For the purposes of this appeal, the plaintiff's complaint alleged negligence, gross negligence, and intentional and grossly negligent acts in violation of Hickey's civil rights under 42 U.S.C. § 1983. On June 9, 1983, the plaintiff also commenced a lawsuit in the Court of Claims against MSU, claiming that the holding cell where Hickey hanged himself was in a dangerous or defective condition and that MSU violated Hickey's civil rights.

MSU and Zezulka filed answers and amended answers to the plaintiff's complaint, claiming state governmental immunity as a defense. However, Zezulka's pleading did not include an affirmative defense of qualified immunity to the plaintiff's 42 U.S.C. § 1983 claim. Zezulka did not allege that defense until filing a subsequent motion for summary disposition.

In an opinion dated May 10, 1985, the trial court held that Hickey had sufficiently pleaded a cause of action under the public building exception, M.C.L. § 691.1406; M.S.A. § 3.996(106), to avoid MSU's governmental immunity. The trial court also held that Zezulka's failure to remove Hickey's belt was a ministerial act not entitled to lower-level governmental immunity under Ross, supra. Finally, the trial court held that although no valid claim existed under the Eighth Amendment of the United States Constitution against MSU or the individual defendants, a claim under 42 U.S.C. § 1983 for violating Hickey's Fourteenth Amendment rights had been sufficiently pleaded against Zezulka. The trial court did not discuss Zezulka's claims of qualified immunity.

The claims against Zezulka and the other individual defendants were tried by a jury. During the trial, witnesses gave testimony about suicides, the effects of intoxication, and the effect of isolating [439 Mich. 418] drunken and suicidal individuals. One expert testified that intoxicated persons normally do not look depressed because they do not care about the things that originally depressed them. Other experts testified that they did not expect any officer to be able to ascertain if a person is suicidal. The testimony also indicated that Hickey died after only a few minutes in the holding cell. At the close of the plaintiff's proofs, the defendants moved for a directed verdict arguing, inter alia, that the plaintiff had failed to present any evidence of deliberate indifference to Hickey's civil rights.

At the end of the trial, the trial court gave instructions to the jury. On the plaintiff's civil rights claim, the trial court stated:

"The essential element which must be present as a threshold consideration to support a 1983 action in this case is that the intentional or negligent conduct of Defendants ... must have deprived the complainant of rights...." (Emphasis added.)

Defendants' counsel did not object to this instruction. However, defense counsel did object to the trial court's refusal to give the requested standard jury instruction on comparative negligence and a requested instruction on intervening cause as they applied to the plaintiff's negligence claim. In response, the trial court stated that it believed the requested instructions were "conceptually not possible" because they would destroy the plaintiff's cause of action.

The jury found that Zezulka was negligent and violated Hickey's civil rights, but that defendants Badgley and Bernitt were only negligent and did not violate Hickey's civil rights. The jury then found that only Zezulka's "negligence and/or violation of ... Hickey's civil rights" was a proximate [439 Mich. 419] cause of Hickey's death. The jury awarded the plaintiff a verdict of $1 million against Zezulka. After the trial, Zezulka's counsel made a number of postjudgment motions, including a motion for judgment notwithstanding the verdict arguing, inter alia, that the plaintiff presented insufficient evidence of deliberate indifference, which were all denied by the trial court. In its review of the jury instructions, the trial court noted that during the course of trial:

"I compare jury instructions. One of my notes to myself was that deliberate indifference was lacking; and when [487 N.W.2d 111] Counsel for the Defendant and Counsel for the Plaintiff came in with their proposed instructions, they had agreed on that instruction.... I do not interject myself when counsel agree on instructions. It doesn't matter what I think what the law may be. If counsel want to agree, that's up to them." (Emphasis added.)

In December 1985, the Court of Claims heard the plaintiff's case against MSU. The Court of Claims found that the DPS holding cell was in a dangerous or defective condition because it was not constructed as a detoxification cell. The court then awarded the plaintiff $650,000 on the basis of its findings. The Court of Appeals upheld this award, as well as the jury verdict against defendant Zezulka.

The Court of Appeals first determined that the Court of Claims did not err in finding that the DPS building was a proximate cause of decedent's death. 177 Mich.App. 606, 613-614, 443 N.W.2d 180 (1989). The Court of Appeals distinguished Reardon v. Dep't of Mental Health, 430 Mich. 398, 424 N.W.2d 248 (1988), by noting that this case did not involve any third party intervention as did Reardon. 177 Mich.App. at 614, 443 N.W.2d 180. The Court of Appeals also found that Zezulka [439 Mich. 420] was not entitled to state governmental immunity because her actions were ministerial-operational and "entail[ed] only minor decision-making...." Id. at 615, 443 N.W.2d 180. The Court of Appeals then held that Zezulka waived her qualified immunity defense to the plaintiff's § 1983 claim because she failed to plead it as an affirmative defense. Id. at 616, 443 N.W.2d 180.

The Court of Appeals also found that the circuit court did not commit error in the jury instructions that were given or refused. The Court held that Zezulka waived her appeal of the § 1983 instruction because she failed to object to it at trial. Id. The Court held that Hickey committed an intentional, not negligent, act so comparative negligence could not be applied. Id. at 617, 443 N.W.2d 180. Finally, the Court concluded that because Hickey's suicide was foreseeable, the trial court did not err when it refused to give an instruction on intervening cause. Id. at 617-618, 443 N.W.2d 180.

From this decision, defendants MSU and Zezulka appealed. On July 10, 1990, we granted leave to appeal. 435 Mich. 861, 457 N.W.2d 345 (1990). On September 27, 1991, we ordered reargument and supplemental briefing limited to the issues regarding the trial court's refusal to instruct with regard to comparative negligence and superseding, intervening cause. 438 Mich. 1202, 475 N.W.2d 29. We directed the parties to address whether a jury may be asked to compare varying degrees of fault where defendant claims plaintiff's act was intentional and plaintiff claims defendant's act was negligent.

We further ordered that Justice Mallett would participate in the decision of this case on resubmission.

II. PUBLIC BUILDING EXCEPTION

A

A governmental agency is immune from tort [439 Mich. 421] liability for actions undertaken while performing governmental functions. M.C.L. § 691.1407; M.S.A. § 3.996(107). Although very broad, this immunity is subject to a limited number of narrowly drawn exceptions, Ross, supra, 420 Mich. at 618, 363 N.W.2d 641, including the public building exception, M.C.L. § 691.1406; M.S.A. § 3.996(106):

"Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition." Id. (Emphasis added.)

To apply the public building exception, the plaintiff must prove that 1) a governmental [487 N.W.2d 112] agency is involved, 2) the public building in question is open for use by members of the public, 3) a dangerous or defective condition of the public building itself exists, 4) the governmental agency had actual or constructive knowledge of the alleged defect, and 5) the governmental agency failed to remedy the alleged defective condition after a reasonable period of time. Williamson v. Dep't of Mental Health, 176 Mich.App. 752, 760, 440 N.W.2d 97 (1989); Ransburg v. Wayne County, 170 Mich.App. 358, 427 N.W.2d 906 (1988). However, the only question before us is whether a dangerous or defective condition existed in the DPS holding cell.

In general, governmental agencies "are subject to liability for a dangerous or defective condition of a public building without regard to whether it [439 Mich. 422] arises out of a failure to repair and maintain." Bush v. Oscoda Area Schools, 405 Mich. 716, 730, 275 N.W.2d 268 (1979). A public building may be dangerous or defective because of improper design, faulty construction, or absence of safety devices. Id. However, a court should only look to the uses or activities for which the public building is assigned to determine if a dangerous or defective condition exists. Id. at 731, 275 N.W.2d 268. Clearly, the question is not only whether the physical condition caused the injury incurred, but also whether the physical condition was dangerous or defective under the circumstances presented. Reardon, 430 Mich. at 410-411, 424 N.W.2d 248.

In Reardon we held that "the duty imposed by the public building exception relates to dangers actually presented by the building itself. To hold otherwise would expand the exception beyond the scope intended by the Legislature when it enacted the immunity act." Id. at 415, 424 N.W.2d 248. We also found that the purpose of the public building exception was to promote the maintenance of safe public buildings, "not necessarily safety in public buildings." Id. In Schafer v. Ethridge, a companion case to Reardon, we held that where proper supervision would have "offset any shortcomings in the configuration of the room," the public building exception does not apply. Id., 430 Mich. at 417, 424 N.W.2d 248.

B

The plaintiff made three principal arguments throughout the course of trial to avoid MSU's governmental immunity defense. First, the plaintiff claimed that the holding cell's design and structure was a dangerous or defective condition. Second, the plaintiff argued that the lack of a detoxification cell and state-of-the-art equipment in the [439 Mich. 423] DPS was sufficient evidence to show a dangerous or defective condition. Third, the plaintiff argued that the placement of the heating unit and the metal brackets was a dangerous or defective condition that proximately caused Hickey's death.

1

The plaintiff alleged that the building's improper design prevented proper supervision and allowed the public building exception to be applied.^[1] De Sanchez v. Genoves-Andrews (On Remand), 179 Mich.App. 661, 446 N.W.2d 538 (1989). Although we agree that a claim of improper design may allow the public building exception to be applied, that outcome is not required here.

In De Sanchez, the Court of Appeals found that a dangerous condition existed because a holding cell specifically assigned for potentially suicidal patients in a mental hospital had dividing bars over the bathroom stalls. Id. at 668-669, 446 N.W.2d 538. However, the Court of Appeals also noted that "[t]he relationship between the inadequacy of the rest room structure for staff observance of patients' activities within the rest room and the decedent's suicide is too tenuous to permit recovery under Reardon ...." Id. (Emphasis [487 N.W.2d 113] added.) Similarly, just because the DPS building was designed so that a detainee's activities could not be observed at all times does not automatically allow recovery under the public building exception to be applied. The plaintiff here attempted to argue that the failure to have the holding cell in view of the guard [439 Mich. 424] station was a defective condition. As in Reardon, however, more effective supervision would have overcome this alleged design defect in the holding cell. Therefore, a claim based on the inability to observe Hickey because of the structural design of the DPS is an insufficient basis on which to apply the public building exception. Before a claim under a building design defect can support invoking the immunity exception, such a design must more directly cause the injury at issue.

2

The plaintiff's claim that MSU should have a detoxification cell and state-of-the-art equipment is also controlled by Reardon. In Reardon, we held that an area not "configured in the most modern design possible at the time" is not necessarily in a dangerous or defective condition. Id., 430 Mich. at 417, 424 N.W.2d 248. During the trial, numerous witnesses testified about the appropriate designs, structures, and equipment necessary for a holding facility to care for intoxicated persons. The witnesses testified that under some circumstances, a holding facility should have a special detoxification cell for housing intoxicated persons. However, the only fact that was clearly established by all the testimony was that if the DPS building had been up-to-date and had used state-of-the-art technology, Hickey's suicide may have been detected earlier and possibly prevented. Under Reardon, proving that the MSU facility was not up-to-date or using the most modern designs possible is insufficient. Therefore, the plaintiff cannot avoid MSU's governmental immunity defense by suggesting that state-of-the-art designs and technology were necessary.^[2]

[439 Mich. 425] 3

The plaintiff also alleged during trial that the heating unit and the metal brackets were dangerous or defective because they were improperly placed even for a normal jail cell. In addition to the evidence about the design and structure of the holding cell in which Hickey committed suicide, the evidence presented showed that this holding cell was designated in the prisoner processing guidelines as one of the three rooms in which detainees should be held prior to transfer to a local jail. Additional evidence indicated that MSU officers had used all of the holding cells to segregate detainees prior to transfer to the county jail since the mid-1970s, that the holding cells were never used for permanent detention, and that no one had ever been held in the DPS building for more than a few hours before being transferred to another facility. The testimony at trial also indicated that no one prior to Hickey ever attempted suicide in any of the holding cells in the DPS building.

We find that our opinion in Bush resolves this allegation. In Bush, we concluded that whether a given room, in this case a cell, is dangerous or defective must be determined in light of the uses or activities for which it is specifically assigned. Id., 405 Mich. at 731, 275 N.W.2d 268. In that case we held that a nonlaboratory classroom used for laboratory activities was dangerous or defective. Id. We focused on the fact that the classroom did not meet the requirements of a laboratory classroom, the specific use to which it was assigned at the time of the accident. Id. at 732, 275 N.W.2d 268.

MSU's holding cell was specifically intended and [439 Mich. 426] assigned for temporary detention. Even the plaintiff did not argue that the cell was used for any purpose except the temporary lockup of arrestees. [487 N.W.2d 114] We must, therefore, determine if this cell, with the installation of the heating unit, specifically used and assigned for temporary detention, was dangerous or defective. We hold that it was not.

The experts testifying at trial, in addition to discussing whether a detoxification cell would have been more appropriate for holding Hickey, also reviewed whether any jail or holding cell could be "suicide-proof." The record indicates that even though the experts disagreed on many issues, they conceded, if questioned, that no jail or holding cell could be suicide-proof. Some of the testimony indicated that even a detoxification cell was not suicide-proof. We find this testimony to be conclusive.

This particular cell had a combination sink and toilet, a water faucet and a towel bar/handle that could possibly provide an anchor for a similar suicide attempt. There would seem to be no limits on the possibility of suicide in an ordinary lock-up cell, particularly one that was only being used for temporary custody, even the temporary custody of an inebriated individual. To suggest that any physical feature of a jail cell, otherwise benign, that can conceivably become a part of a plan of one who is desperately driven to self destruction can become a "dangerous or defective condition" under the public building exception statute, simply crosses the outer limits of any reasonable reading of the intent of that statute when considered in the context of its history, purpose, and wording.

If MSU should have had a cell intended to be suicide-proof, or if this suicide victim should have been confined in such a cell, those "should haves" [439 Mich. 427] may well have amounted to negligence, see, e.g., Molton v. City of Cleveland, 839 F.2d 240, 246 (C.A. 6 1988) (the failure to build a suicide-proof cell only proves mere negligence), but they do not convert the heating unit and metal brackets in question into a dangerous and defective condition given the normal uses and purposes for which the cell was designed and assigned. At most, the plaintiff's claim relates to safety in the public building, including any possible duty that the officers had to protect Hickey from harming himself. However, Hickey's unfortunate death does not relate to the maintenance of a safe public building for the specific use and purpose for which it was assigned.

Therefore, the DPS temporary holding cell, the heating unit, and the metal brackets were not a dangerous or defective condition under the public building exception. MSU is entitled to immunity under the governmental tort liability act, M.C.L. § 691.1407; M.S.A. § 3.996(107), and the plaintiff's claim is barred.

III. 42 U.S.C. § 1983

We must resolve only one issue related to the plaintiff's claim against Zezulka under 42 U.S.C. § 1983: whether the plaintiff presented sufficient evidence of deliberate indifference to Hickey's civil rights. If a defendant bases its motion for judgment notwithstanding the verdict on the insufficiency of the evidence as a matter of law to support the claim, a failure to object to an erroneous jury instruction does not prevent entry of judgment for the defendant. See Boyle v. United Technologies Corp., 487 U.S. 500, 513-514, 108 S.Ct. 2510, 2519-2520, 101 L.Ed.2d 442 (1988); City of St. Louis v. Praprotnik, 485 U.S. 112, 118-121, 108 S.Ct. 915, 921-923, 99 [439 Mich. 428] L.Ed.2d 107 (1988). See also 9 Wright & Miller, Federal Practice & Procedure, § 2537, pp. 599-600.^[3]

In York v. Detroit (After Remand), 438 Mich. 744, 475 N.W.2d 346 (1991), we adopted the prevailing federal rule that a pretrial detainee's due process rights under the Fourteenth Amendment are protected to the same extent as the rights guaranteed convicted prisoners under the Eighth Amendment. Thus, the plaintiff could not establish a constitutional violation in support of a § 1983 claim absent a showing of [487 N.W.2d 115] deliberate indifference, and mere negligence does not amount to deliberate indifference. Id. at 759, 475 N.W.2d 346.^[4] This, then, takes us to the question whether the evidence supports a finding that any of Zezulka's acts or omissions constituted deliberate indifference toward Hickey's civil rights as a pretrial detainee.

The plaintiff alleged that Zezulka breached her duty of care and violated Hickey's civil rights by failing to remove Hickey's belt before he was placed in the DPS holding cell and by failing to properly monitor him while he was in the cell. We conclude that such omissions on the part of Zezulka do not amount to deliberate indifference. We find the circumstances in Edwards v. Gilbert, 867 F.2d 1271 (C.A. 11 1989), analogous and the court's [440 Mich. 429] reasoning in that case especially persuasive. In Edwards, a juvenile convicted of sexual assault was held in a county jail to await sentencing. The juvenile committed suicide by hanging himself with a bedsheet. The evidence at trial showed that the guards checked the juvenile every fifteen minutes, but that this procedure did not prevent his suicide. The Edwards court analyzed the plaintiff's due process claim, stating:

"Invocation of fourteenth amendment substantive due process also adds nothing to plaintiff's case [because] 'in regard to providing pretrial detainees with such basic necessities as food, living space, and medical care the minimum standard allowed by the due process clause is the same as that allowed by the eighth amendment for convicted persons.'

"In a prisoner suicide case, to prevail under section 1983 for violation of substantive rights, under either the eighth or fourteenth amendment, the plaintiff must show that the jail official displayed 'deliberate indifference' to the prisoner's taking of his own life. See Whitley v. Albers, 475 US [312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986) ]; State Bank of St Charles v. Camic, 712 F.2d 1140, 1146 (CA 7, 1983)." Id. at 1274-1275 (emphasis added; citation omitted).

In Edwards, the court held that the defendants' acts did not constitute deliberate indifference to a potential suicide by the prisoner where no suicide had been attempted or threatened. Id. at 1276. The court stated:

"In the absence of a previous threat of or an earlier attempt at suicide, we know of no federal court in the nation or any other court within this circuit that has concluded that official conduct in failing to prevent a suicide constitutes deliberate indifference." Id. at 1275.

[440 Mich. 430] In this case, there was no evidence presented that Hickey threatened to commit suicide or attempted suicide before being placed in the holding cell by Zezulka. Nor was there any testimony, other than the fact that Hickey was intoxicated, that he behaved in such a manner as to put Zezulka on notice that he was likely to commit suicide.

The Edwards court also rejected the plaintiff's argument that the defendants were deliberately indifferent because they violated certain state laws and regulations regarding housing of juveniles in adult jails. Id. at 1276. The court noted that the United States Supreme Court has held that officials do not lose their qualified immunity when sued under § 1983 merely because their conduct violates a statutory or administrative provision. Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984). Another federal court has also rejected the argument that failure to follow established procedures constitutes deliberate indifference sufficient to support a § 1983 claim. In State Bank of [487 N.W.2d 116] St Charles v. Camic, 712 F.2d at 1146, the court held:

"Even if the defendants' disregarded one or more of their established procedures, such as checking the cells every hour ... the actions of the defendants do not constitute deliberate disregard,"

because the defendants had no actual knowledge that the detainee was a suicide risk. We agree. The plaintiff's allegation that Zezulka violated certain mandatory DPS regulations does not rise to the level of deliberate indifference, the state-of-mind required to sustain an action under § 1983 for a violation of a pretrial detainee's civil rights.

Therefore, we conclude that the plaintiff has presented insufficient evidence of deliberate indifference [440 Mich. 431] on the basis of the acts or omissions of defendant Zezulka. At the close of the plaintiff's proofs, the defendants moved for a directed verdict, arguing that the plaintiff presented no evidence of deliberate indifference. Subsequent to the entry of the judgment in this case, Zezulka renewed this argument in her motion for judgment notwithstanding the verdict. Because the plaintiff has presented insufficient evidence to support a claim under 42 U.S.C. § 1983, we reverse the trial court's denial of Zezulka's motion for judgment notwithstanding the verdict on this claim and direct entry of judgment for defendant.

IV. STATE GOVERNMENTAL IMMUNITY

A

We now turn to the plaintiff's state law claims against defendant Zezulka. We must initially determine whether Zezulka is entitled to state governmental immunity.^[5] To be entitled to that immunity, Zezulka must show that she was:

"1) acting during the course of [her] employment and acting, or reasonably believe[d] [she was] acting, within the scope of [her] authority;

"2) acting in good faith; and

"3) performing discretionary, as opposed to ministerial acts." Ross, supra, 420 Mich. at 633-634, 363 N.W.2d 641 (citations omitted).

Although both parties agree that Zezulka satisfied the first two prongs of the state governmental immunity test, the parties argued extensively over [440 Mich. 432] whether Zezulka was performing a discretionary-decisional act.

We note that the inquiries of immunity and negligence cannot be confused. Canon v. Thumudo, 430 Mich. 326, 422 N.W.2d 688 (1988). "[T]he relevant inquiry is not whether the specific act complained of was negligent, but whether it was discretionary-decisional in nature." Id. at 350, 422 N.W.2d 688.

In Ross, supra, 420 Mich. at 634-635, 363 N.W.2d 641, we decided that activities requiring personal deliberation, decision, and judgment are discretionary-decisional actions. However, acts requiring mere obedience to orders or performance of duties in which the individual had little or no choice are ministerial-operational activities. We also stated that the difference between discretionary-decisional acts and ministerial-operational acts was a difference between deciding to engage in an activity and the actual performance of that activity. We clarified this analysis in Green, supra, 437 Mich. at 12-13, 464 N.W.2d 703, when we stated that conduct involving routine administrative tasks or minor decision making, but not requiring the exercise of significant decision making, will be considered ministerial-operational in nature. Finally, we have also held that the failure to follow established policies or the failure to follow established security procedures are ministerial-operational actions to which governmental immunity would not apply. Ross, supra, 420 Mich. at 651, 363 N.W.2d 641; Bandfield v. Wood, 421 Mich. 774, 364 N.W.2d 280 (1985).

[487 N.W.2d 117] With this background in mind, we undertake a factual analysis of the conduct at issue to determine whether Zezulka should be entitled to state governmental immunity. Green, supra, 437 Mich. at 9-10, 464 N.W.2d 703.

B

The plaintiff challenged Zezulka's claim of state [440 Mich. 433] governmental immunity on two grounds. First, the plaintiff argued that the failure to remove Hickey's belt when he was put into the DPS holding cell was a ministerial-operational activity. Second, the plaintiff argued that the failure to properly monitor Hickey once he was lodged in the holding cell was also a ministerial-operational action barring Zezulka's state governmental immunity claim.

1

MSU's prisoner processing guidelines require the removal of all harmful objects from any detainees. The testimony about the removal of harmful objects showed that although the guidelines were not considered mandatory when they were written, the senior DPS officers considered removing a detainee's belt to be a mandatory requirement. These officers believed that the policy mandated the removal of all objects that could be harmful to the prisoner. These officers and additional experts also testified that a detainee's belt is always harmful. However, other testimony, including statements by Zezulka, indicated that the DPS guidelines were not specific directives, did not always require removal of a detainee's belt, and should be based on the officer's discretion.

Although not every deviation from an established policy or rule will be considered a ministerial-operational action, Canon, supra, 430 Mich. at 350, 422 N.W.2d 688, the preparation of a detainee for holding was a ministerial-operational task that bars Zezulka's claim of immunity. Similar to the nurse's activities in Green, supra, the removal of harmful objects from a detainee was a routine practice that required only limited decision making. Furthermore, Zezulka was not deciding to engage in an activity, but was performing an activity under an established [440 Mich. 434] policy. Ross, supra, 420 Mich. at 635, 363 N.W.2d 641. Therefore, we find that Zezulka's actions in preparing Hickey for confinement were ministerial-operational activities not entitled to state governmental immunity.

2

Zezulka's alleged failure to properly monitor Hickey once he was put into the holding cell is also a ministerial-operational act that bars her state governmental immunity claim.^[6] In Willis v. Dep't of Social Services and Regulski v. Murphy, companion cases to Ross, we held that the failure to supervise children during the course of recreation and classroom activities was a ministerial-operational activity not entitled to the protections of governmental immunity. Ross, supra, 420 Mich. at 640, 651, 363 N.W.2d 641. See Bandfield, supra. Our focus in these two cases was clearly on the visual monitoring of the children involved and not on the broader aspects denoted by the term "supervision." The Random House Dictionary of the English Language: Unabridged Edition, p. 1911.

If the actions in Willis, Regulski and Bandfield were considered ministerial-operational in nature, clearly the failure to monitor Hickey once he was put in holding was a ministerial-operational activity that avoids Zezulka's claim of governmental immunity. The testimony at trial indicated that the MSU officer who brought in a detainee had the responsibility to properly monitor the detainee during detention. As with the failure to remove Hickey's belt, Zezulka was applying an established [440 Mich. 435] policy that only required minor decision making. Therefore, any failure to monitor Hickey once he was put into the holding cell was a ministerial-operational act which [487 N.W.2d 118] bars Zezulka's claim to governmental immunity.

V. JURY INSTRUCTIONS

Now that we have determined that Zezulka has no state governmental immunity defense to the plaintiff's negligence claims, we must decide whether the trial court should have given Zezulka's requested standard jury instructions on comparative negligence, SJI2d 11.01, and an instruction on intervening cause.

Zezulka timely requested the comparative negligence and intervening cause instructions, but the trial court refused to give them. The trial court found that the standard jury instructions on comparative negligence and the requested instruction on intervening cause would destroy any cause of action for wrongful death based on a jail suicide.

A

The defendant states that there is no record of the specifically requested instruction on the issue of intervening cause; therefore, we look first to the standard jury instructions to determine whether such an instruction would be appropriate in this case. The standard instructions do not include an instruction that would allow a jury to find that conduct by the plaintiff himself was an intervening, superseding cause of the plaintiff's harm, to the extent that the defendant, though negligent, is relieved from liability. See SJI2d 15.05 and 15.06. The note on use accompanying SJI2d 15.05 states that the instruction should be used only when [440 Mich. 436] there is evidence that the sole proximate cause of plaintiff's harm may have been the conduct of a third person. The note on use accompanying SJI2d 15.06 makes a similar recommendation, limiting the use of that instruction to cases where there is evidence that an outside force may have been the sole proximate cause of the plaintiff's injury. While neither of these standard jury instructions would have been appropriate on the facts of this case, we must decide whether the trial court should have crafted its own instruction with regard to intervening cause.

Like the standard instructions, most of the cases reviewing the applicability of an intervening cause jury instruction are concerned with the intervention of a third-party or outside force. See, e.g., Parks v. Starks, 342 Mich. 443, 70 N.W.2d 805 (1955); Johnston v. Harris, 387 Mich. 569, 574-575, 198 N.W.2d 409 (1972) (intentional acts of a third party can be superseding events that bar the defendant's liability). While there is some support for the theory that the conduct of the plaintiff may also be a superseding cause of the plaintiff's injury, see 57A Am.Jur.2d, Negligence, § 650, p. 607, we are not persuaded that in this case an instruction with regard to intervening cause was appropriate.^[7]

A superseding cause is one that intervenes to prevent a defendant from being liable for harm to a plaintiff that the defendant's antecedent negligence is a substantial factor in bringing about. See [440 Mich. 437] 2 Restatement Torts, 2d, § 440, p. 465.^[8] We have previously held that in order to be a superseding cause, thereby relieving a negligent defendant from liability, an intervening force must not have been reasonably foreseeable. Davis v. Thornton, 384 Mich. 138, 148, 180 N.W.2d 11 (1970); Comstock v. General Motors Corp., 358 Mich. 163, 178-180, 99 N.W.2d 627 (1959).

While a defendant will not be liable for injury caused by an intervening force that was not reasonably foreseeable,

[487 N.W.2d 119] "[i]f the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby." 2 Restatement Torts, 2d, § 449, p. 482.

This statement has also been made with regard to the acts of a plaintiff in relation to a defendant's negligence:

"Generally, where the defendant's negligence has created a stimulus for the plaintiff's act there is no break in the chain of events which would prevent the negligent defendant's liability." 57A Am.Jur.2d, Negligence, § 648, p. 607.

This is so because, "[i]f the acts of the plaintiff are within the ambit of the hazards covered by the duty imposed upon the defendant, they are foreseeable and do not supersede the defendant's negligence." [440 Mich. 438] Id. at § 652, p. 609. Thus, where the defendant's negligence consists in enhancing the likelihood that the intervening cause will occur, Johnston v. Harris, supra, 387 Mich. at 573, 198 N.W.2d 409, or consists in a failure to protect the plaintiff against the very risk that occurs, Prosser & Keeton, Torts (5th ed.), § 44, p. 303, it cannot be said that the intervening cause was not reasonably foreseeable.

In Moning v. Alfono, 400 Mich. 425, 441, 254 N.W.2d 759 (1977), we made a similar finding, quoting Prosser, supra:

"'If the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, he may be negligent, among other reasons, because he has failed to guard against it; or he may be negligent only for that reason.'"

Thus, in Moning, we found that by marketing slingshots directly to children, the defendants had created the risk that a child would use the slingshot, and we concluded that the defendants could not be relieved from liability by the fact that the risk to which they subjected the plaintiff had indeed come to pass.

In this case, Zezulka owed Hickey a duty of ordinary care for his safety, requiring her to use reasonable care under the circumstances. Generally, a person is under no duty to aid or protect another individual; however, a special relationship between the parties may give rise to such a duty. 2 Restatement Torts, 2d, § 314A, p. 118. The custodial relationship between the DPS and Hickey is such a special relationship that gives rise to the duty to give aid and protect from harm. Id. Zezulka did not challenge on appeal the issue of her [440 Mich. 439] duty toward Hickey; therefore, it is not subject to our review. MCR 7.302(F)(4)(a).

The crux of the plaintiff's case is that Zezulka breached her duty to protect Hickey from harm by failing to act with ordinary care and that her negligence consisted of her failure to remove Hickey's belt and her failure to supervise Hickey while he was in the DPS holding cell. The jury found that Zezulka was negligent. This issue also was not appealed and therefore is not subject to our review. One of the factors in determining whether certain conduct constitutes negligence is an assessment whether the defendant knew or should have known that his conduct was likely to result in harm--"should the defendant have reasonably foreseen that what he was doing or had done up to then might cause harm--if so, he was negligent." Davis, supra, 384 Mich. at 146, 180 N.W.2d 11. In fact, negligence cannot be found to exist "unless an actor, who is under a duty to act, fails to act after he has perceived or should have perceived an unreasonable risk of harm to another." Samson v. Saginaw Professional Bldg, Inc., 393 Mich. 393, 406, 224 N.W.2d 843 (1975).

Therefore, on the facts of this case, a finding by the jury that Zezulka's failure to remove Hickey's belt, and her failure to properly supervise him in the DPS holding cell, constituted negligence would be nonsensical if Hickey's subsequent intentional act of harming himself was not reasonably foreseeable by Zezulka. When a defendant owes a duty of ordinary care to give aid to and to protect an individual from harm because of the special relationship between [487 N.W.2d 120] the parties, and the plaintiff's claim is that the defendant was negligent in failing to prevent or in creating a stimulus for the plaintiff's own act that intervened to cause him harm, it cannot be said that the intervening act is a superseding cause of his injury. Thus, by negligently [440 Mich. 440] enhancing the likelihood of Hickey's intervening act of suicide, and by failing to protect Hickey from the very risk she created, Zezulka cannot be relieved from liability because the risk she created actually came to fruition. "A peril produced in part, at least, by defendant's negligence does not excuse the negligence." Adelsperger v. Detroit, 248 Mich. 399, 402, 227 N.W. 694 (1929).

Therefore, an instruction to the jury that, after finding Zezulka negligent, it could relieve Zezulka of liability for her negligence if it found that Hickey's act of suicide was not reasonably foreseeable, was neither necessary nor appropriate in this case. We agree with the Court of Appeals that the trial court did not err by refusing to give such an instruction. Hickey, supra, 177 Mich.App. at 617, 443 N.W.2d 180.

B

The signers of this opinion also agree with the Court of Appeals that a comparative negligence instruction is improper in a jail suicide case, Hickey, supra at 617, 443 N.W.2d 180. The standard jury instruction requested by Zezulka provides as follows:

"Plaintiff's negligence, if any, does not bar a recovery by the plaintiff against the defendant, but the total amount of damages to which the plaintiff would otherwise be entitled shall be reduced by the percentage that plaintiff's negligence contributed as a proximate cause to [his/her] [injury/property damage]. This is known as comparative negligence." SJI2d 11.01 (emphasis added).

The note on use accompanying SJI2d 11.01 states that the instruction should be used only where [440 Mich. 441] there is a question for the jury regarding the negligence of the plaintiff. Therefore, this standard instruction would be appropriate in this case only if the evidence showed that Hickey acted negligently in harming himself.

In the case before us, the trial court determined that Hickey's conduct was intentional, rather than negligent, for purposes of applying the standard comparative negligence jury instruction. Therefore, because the standard jury instruction should only be given when the plaintiff's negligence is a partial proximate cause of the injuries that occurred, and in this jail suicide case the action taken by the decedent was voluntary and intentional, we find that the standard jury instruction regarding comparative negligence was not proper here.

While the trial court did not err by refusing to give the standard jury instruction on comparative negligence, we must consider whether some instruction with regard to comparative fault would have been appropriate. In deciding this issue, we look to prior decisions by this Court for guidance. This Court initially accepted the doctrine of comparative negligence in Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979); see also Kirby v. Larson, 400 Mich. 585, 256 N.W.2d 400 (1977). Throughout our analysis, although we continuously referred to the application of the comparative "fault" of the parties, Placek, 405 Mich. at 660-662, 275 N.W.2d 511; Kirby, 400 Mich. at 642-645, 256 N.W.2d 400, we also stated that the doctrine only applies when the negligence of the plaintiff became an issue in the case. It is doubtful that we envisioned allowing an apportionment of fault when a plaintiff undertakes a voluntary and intentional activity which causes harm to himself, where a defendant has a duty to protect that [440 Mich. 442] plaintiff from harm, including injury by his own intentional acts.^[9]

Zezulka does not dispute that our courts and other jurisdictions do not extend comparative fault analysis to cases where a [487 N.W.2d 121] party acted intentionally in causing harm. Rather than apportioning fault between the parties, one of whom was only negligent and one of whom acted intentionally, courts have placed one hundred percent of the fault on the party whose actions were intentional. Thus, a defendant who intentionally injures a plaintiff is not entitled to mitigation of damages on the basis of the fact that the plaintiff's negligence was also a proximate cause of his injury. See Vining v. Detroit, 162 Mich.App. 720, 727, 413 N.W.2d 486 (1987); Melendres v. Soales, 105 Mich.App. 73, 82, 306 N.W.2d 399 (1981). In Melendres, the Court of Appeals reasoned that in such situations the defendant had not been negligent and therefore there were no degrees of negligence to compare. Further, in cases where the plaintiff's injury is caused at least in part by his own intentional act, as in the case of a person who commits suicide, the general rule is that fault is not apportioned between the plaintiff and a negligent defendant, and instead the plaintiff's claim is barred. Schwartz, Comparative Negligence (2d ed.), § 5.5, p. 110 (using the example of a plaintiff who knowingly and voluntarily steps in front of a defendant's speeding car).

However, as we noted above in section V(A), a jail suicide case presents an exception to the rule that there is no duty to give aid to and protect another person from harm. Therefore, if apportionment of [440 Mich. 443] fault is not available, a defendant who negligently causes a person's suicide will bear the full burden of the plaintiff's damages, despite the fact that the plaintiff acted intentionally in harming himself. We must determine, then, if an apportionment of fault is appropriate in such a case.

Zezulka has made no argument to this Court in support of her claim that the trial court erred by refusing to give a comparative fault instruction in this case.^[10] The plaintiff notes that Zezulka breached her duty to use ordinary care in protecting Hickey from harm, including his own intentional act of harming himself. The plaintiff argues, then, that it would be nonsensical to allow Zezulka to plead in mitigation of damages the very occurrence she negligently failed to prevent. We agree with the plaintiff that apportionment of fault on the basis of the fact that a plaintiff intentionally harmed himself is not appropriate in a jail suicide case.

It has been said that the doctrine of contributory negligence "is an expression of the highly individualistic attitude of the common law, and its policy of making the personal interests of each party depend upon his own care and prudence." Prosser, supra at § 65, p. 452. See also 2 Restatement Torts, 2d, § 463, comment b, p. 506. In adopting a system of comparative negligence, this Court abandoned only the effect of contributory negligence as a total bar to a plaintiff's recovery, to the extent that a plaintiff's negligent contribution to his own injury would merely reduce his award of damages. Placek, supra, 405 Mich. at 650, n. 1, 275 N.W.2d 511. However, a jail suicide presents a situation where a defendant has [440 Mich. 444] a duty to give aid to and protect another person in the defendant's custody, even from his own intentional acts. Thus, a defendant in a case such as this breaches her duty by negligently failing to prevent another person's violation of the standard of care with respect to his own safety. We hold then, that in a jail suicide case, a negligent defendant cannot plead, in mitigation of damages, the fact that a plaintiff, to whom she owed a duty, violated a standard of care for his own protection.

Further, we note that the conclusion that fault should not be apportioned where a party acted intentionally is based in part on the idea that intentional and voluntary conduct differs from negligence not only in degree, but also in kind. Prosser, supra at § 65, p. 462. Intentional and voluntary conduct, such as that undertaken by Hickey in this case, is qualitatively different from levels of negligence, and therefore is not capable of intelligent comparison by [487 N.W.2d 122] the courts or by a jury.^[11] Furthermore, because there are no degrees of intentional conduct, as there are with negligence, [440 Mich. 445] an attempted comparison would logically lead to a defeat of any claim based on one's negligence that results in a suicide where there is a duty to protect another person from harm. We find it difficult, in the situation before us, to envision a jury instruction that would accurately advise a jury on how to apportion fault between these two distinct types of conduct.

Therefore, the signers of this opinion would conclude that the trial court did not err in refusing to give the standard jury instruction regarding comparative negligence, and we would hold that apportionment of fault is not appropriate in a jail suicide case.

VI. CONCLUSION

We hold that the plaintiff's claims against MSU are barred by governmental immunity. Because the holding cell was not dangerous or defective for the purpose for which it was intended, the public building exception, M.C.L. § 691.1406; M.S.A. § 3.996(106), is inapplicable and cannot be used to impose liability on MSU. Therefore, the decisions of the Court of Claims and the Court of Appeals are reversed, and this case is remanded to the Court of Claims for entry of a judgment in favor of MSU.

We also hold that, applying the proper deliberate indifference state-of-mind requirement, the plaintiff presented insufficient evidence to support the claim, and we reverse the trial court's denial of Zezulka's motion for judgment notwithstanding the verdict on the § 1983 claim and direct entry of judgment for the defendant.

We agree with the trial court and the Court of Appeals that Zezulka is not protected by state governmental immunity because her alleged improper actions were ministerial-operational in nature. [440 Mich. 446] Further, we find that the trial court correctly refused to give a jury instruction regarding intervening cause. Finally, the signers of this opinion find no error in the trial court's failure to instruct on comparative fault.

The jury verdict form in this case directed the jury to make separate findings with regard to whether Zezulka was negligent and whether she violated Hickey's civil rights. The jury answered both of these questions in the affirmative. The form next directed that if either of these questions were answered "yes," the jury should then answer a third question: "Was Defendant Linda Zezulka's negligence and/or violation of John Joseph Hickey's civil rights a proximate cause of his death?" The jury answered this question "yes." We observe that, even though the verdict left some question whether or not the jury found proximate cause with regard to only one or both of the claims, both the negligence claim and the civil rights claim were based on precisely the same conduct by Zezulka. It therefore would have been illogical for the jury to have found proximate cause on one claim and not the other. Thus, we are compelled to conclude that either claim would support the jury's verdict.

Thus, having concluded that Zezulka should have been granted judgment notwithstanding the verdict on the civil rights [487 N.W.2d 123] claim, we direct entry of judgment for Zezulka on that claim. However, a majority of the Court has found error in the trial court's failure to instruct on comparative fault. Therefore, we reverse the decision of the Court of Appeals with regard to the negligence claim and remand for a new trial pursuant to MCR 2.611(A)(1)(g), which provides:

"(A) Grounds.

"(1) A new trial may be granted to all or some of [440 Mich. 447] the parties, on all or some of the issues, whenever their substantial rights are materially affected, for any of the following reasons:

* * * * * *

"(g) Error of law occurring in the proceedings, or mistake of fact by the court." (Emphasis added.)

Because the trial court's error in failing to instruct on comparative fault does not affect the jury's finding that Zezulka's negligence was a proximate cause of Hickey's injury, the issues to be determined on the retrial ordered are limited to the amount of damages and comparative fault; the range of appropriate proof within these parameters is for the trial court to determine.

MALLETT and LEVIN, JJ., concur.

RILEY, Justice (concurring in part and dissenting in part).

While I concur with the analysis of parts II, III, IV, and V(A) of the lead opinion, I disagree with the holding in V(B) that a comparative fault instruction was unnecessary in this case. Considering the finding by the jury that Mr. Hickey's suicide was a foreseeable consequence of Officer Zezulka's negligence in this custodial setting, I agree with the finding that no intervening cause instruction need be given. I believe, however, that a comparative fault instruction should have been given.

As a general rule, a plaintiff may not recover damages in negligence for the intentional suicide [440 Mich. 448] of another.^[1] Where a plaintiff intentionally commits an act that brings about an injury, the risk of which was increased by the defendant's negligence, the plaintiff ordinarily loses any cause of action he might have because of defendant's negligence. Where, however, the defendant assumes a duty to protect the plaintiff from that injury, as in this involuntary custody situation, I agree that the plaintiff should not lose his cause of action^[2] I disagree, however, that the other extreme should be adopted--that the defendant then assumes all responsibility, and liability, for injuries that the plaintiff intentionally commits upon himself. The assumption of a duty to protect the decedent while in defendant's custody merely establishes a legal basis for holding defendant negligent. The mere existence of a duty does not automatically lead to the conclusion that the decedent's fault should not be considered. Decedent's fault, or contributing cause of his injury, is his intentional and unreasonable exposure to the danger created by defendant's negligence. 2 Restatement Torts, 2d, § 466, p. 511.

The conceptual difficulty which appears to blind the signers of the lead opinion arises from the use of the word "negligence" in Placek 's^[3] reference to the conduct of the plaintiff.^[4] It is clear from [487 N.W.2d 124] Placek [440 Mich. 449] that the goal of the Court was to establish "a fair system of apportionment of damages." Id., 405 Mich. at 660, 275 N.W.2d 511. This goal is not served; rather, it is thwarted when a slightly negligent defendant is held liable for one hundred percent of the damages caused principally by the wrongful intentional conduct of a plaintiff.

Jurors are capable of reaching a rational and sensible balance between the decedent's fault and the negligent jailer's fault. Comparison of "qualitatively different" conduct, which the signers of the lead opinion find to be "not capable of intelligent comparison,"^[5] is not only possible, but is required by this Court's adoption of "pure" comparative fault. Many courts, including Michigan courts, have successfully compared the fault of both parties in similar instances.^[6] With the proper instruction, a jury will not necessarily preclude recovery for the plaintiff by finding the plaintiff one hundred percent at fault because of his intentional act of suicide. An instruction on comparative fault is [440 Mich. 450] necessary to apportion the damages between two parties responsible for the injury.^[7]

In the present case, the jury found Officer Zezulka negligent for failing to remove Mr. Hickey's belt. While she should be held accountable for enhancing the risk of suicide, Mr. Hickey should also be responsible for his own conduct.

MICHAEL F. CAVANAGH, C.J., and BOYLE and ROBERT P. GRIFFIN, JJ., concur.

LEVIN, Justice.

I write separately because the findings of the Court of Claims judge support application of the building exception to governmental immunity, and the judgment entered on that basis for the plaintiff.^[1]

I

John Hickey was arrested for drunken driving by Linda Zezulka, an officer of the Michigan State University Department of Public Safety. He was taken to the Department of Public Safety. He was placed in a holding cell at 3:20 A.M.

Although an MSU Department of Public Safety rule mandated the removal of potentially dangerous [440 Mich. 451] personal articles,^[2] Zezulka did not remove Hickey's belt or any other article of clothing. At 3:57 A.M., Zezulka went to the holding cell to remove [487 N.W.2d 125] Hickey for transportation to the Ingham County Jail. She found that he had hanged himself with a noose he first fashioned from his belt and socks, and then attached to a protruding metal bracket holding a heating unit to the wall of the cell. He was pronounced dead on arrival at a hospital.

Hickey's father, John Hickey, Jr., filed an action against Zezulka and other defendants^[3] alleging negligence and intentional and grossly negligent acts in violation of Hickey's civil rights under 42 U.S.C. § 1983. He also commenced an action against Michigan State University in the Court of Claims, asserting that the holding cell Hickey was placed in was in a dangerous or defective condition and that MSU had also violated Hickey's civil rights under 42 U.S.C. § 1983.

A jury found that Zezulka was negligent and had violated Hickey's civil rights, and that this was a proximate cause of his death, and awarded $1 million in damages. The Court of Claims found that the holding cell was in a dangerous and defective condition and that this was a proximate cause of Hickey's death, and awarded $650,000 in damages. Both awards were affirmed by the Court of Appeals.

[440 Mich. 452] II

The finder of fact in the Court of Claims was the trial judge in the negligence action. The judge found that the cell in which Hickey was placed was used not only for temporary detention, but for temporary detention of inebriated persons:

"Now, intoxication has been a problem for years, and I don't think it's any secret to Michigan State University in dealing with the students on their campus that they deal on a regular basis with intoxicated individuals.... [I]t appears that their procedure is pretty consistent with other agencies in dealing with persons arrested for driving while intoxicated; namely, that they are held until such time as they may safely be released. And the purpose of holding, as [defense expert] Mr. Kamka stated, was for the detoxification process.

* * * * * *

"Now, Michigan State University, in the opinion of this Court, knew that intoxicated persons would be placed in the facility, and the Court would so find. And if it was only for holding purposes, then it should not have been used for purposes which went beyond holding....

* * * * * *

"I guess the bottom line, though, is that if Michigan State University had individuals who were intoxicated, then they should not have placed individuals in cells which were not designed for persons who were intoxicated.

* * * * * *

"... Michigan State, in essence, has admitted that it had no detoxification cell. It [Room 171] was being used, in the opinion of this Court, for precisely that purpose."

The judge further found that, used as a cell for the temporary detention of inebriated persons, the cell was dangerous and defective:

[440 Mich. 453] "But the Court is of the opinion, based on the testimony and the testimony which the Court deems credible and applying not a standard of preponderance of the evidence but a standard ... of beyond a reasonable doubt, is of the opinion that the facility here was improper by design in the specific manner alleged, the bench location and the location of the heating device. And the Court's opinion in large part, in very large measure, rests on the testimony of [defense expert] Mr. Kamka.

* * * * * *

"[T]he Court is of the opinion, and disregarding the question of the lighting, that Mr. Kamka's testimony was clear and unequivocal that the heating device [487 N.W.2d 126] should have been recessed or in a position other than where it was located.

* * * * * *

"But the Court is of the opinion that Mr. Kamka himself indicated he would have recommended that the heating device be removed and that it should not have been placed in the position in which it was located.

"Now, this device was in such close proximity to anyone standing on the bench that it was a ready-made tool for anyone in a position to want to use it."

The judge also found that the defect was a proximate cause of Hickey's death:

"The Court is of the opinion that the existence of the heating device in the form in which it existed over the bench was a proximate cause of the death of the decedent."

The judge further found that MSU had knowledge of this defect and failed to take action to protect those confined in the cell:

[440 Mich. 454] "So even if I'm to disregard all other testimony and rely primarily on that of Mr. Kamka, the Court is of the opinion that the experience was such that no holding facility should be built with an exposed device which provides access for suicide.

* * * * * *

"And I find it very difficult to even conceive of building a modern-day facility--and I'm not talking 1984 or '85; I am talking 1970 and even before that--with a device protruding from a wall in such close proximity to a bench or that which is able to be reached by someone who has been placed in such a cell.

* * * * * *

"Now, Michigan State University, in the opinion of this Court, knew that intoxicated persons would be placed in the facility, and the Court would so find. And if it was only for holding purposes, then it should not have been used for purposes which went beyond holding in the sense that it was argued to this Court.

* * * * * *

"In conclusion on that issue, Michigan State, in essence, has admitted that it had no detoxification cell. [Room 171] was being used, in the opinion of this Court, for precisely that purpose. Michigan State had prior knowledge of the use of alcoholic beverages on the campus, the need or the reality of arresting individuals who are overintoxicated or are intoxicated, over-imbibed or whatever, and yet chose to use a cell which was not designed for that purpose for temporary placement of such individuals. In the opinion of this Court, that was an improper use of the cells or, in the specific, of the cell in question here relative to the placement of this individual."

The finder of fact thus concluded that the cell was specifically assigned for temporarily holding [440 Mich. 455] persons arrested for drunk driving, and not merely for "temporary detention."^[4]

The question, therefore, is not whether "any jail or holding cell could be made 'suicide proof,'"^[5] but, rather, having in mind that the holding cell was used as a temporary holding cell for inebriated persons, whether it was dangerous or defective to the extent that, had it been more carefully designed or constructed, or equipped with safety devices, the suicide of John Hickey would have been less likely to have occurred. Bush v. Oscoda Area Schools, 405 Mich. 716, 730, 275 N.W.2d 268 (1979).^[6]

The majority concludes that the cell was "specifically intended and assigned for temporary detention."^[7] There was, however, testimony that the cell was used, on many [487 N.W.2d 127] occasions, as a temporary detention cell for persons arrested for OUIL, and the finder of fact so found.

The issue in Bush was whether a schoolroom, temporarily being used as a science laboratory, was dangerous or defective. A student had been injured by an alcohol explosion during a laboratory experiment. This Court said:

"The trier of fact must determine whether the room was defective when used as a physical science classroom and, if so, whether the defect was a cause of Foxworth's injuries. Conceding that the alleged 'course of classroom conduct ... would be dangerous even in a properly equipped laboratory,' [440 Mich. 456] 79 it is yet possible that if the room were properly equipped the accident would not have occurred or the injuries would have been less severe. The question of the significance of the defect in relation to the alleged injuries is a question of fact." Id. at 732, 275 N.W.2d 268. (Emphasis added.)

This Court in Bush thus held, in effect, that although no laboratory can be made "danger proof," the trier of fact could nevertheless conclude that it was defective, and that the defect was a cause of the injury.^[8]

Accordingly, the absence of expert testimony that a cell might be made "suicide proof" is not determinative.

[1] If the plaintiff had specifically argued that a lack of supervision allowed the public building exception to apply, as was suggested several times during the trial, his claim would fail. The failure to supervise clearly implicates the conduct of individuals, not any danger presented by the physical condition of a public building, and would be barred by Reardon and Bush, supra.

[2] The Court of Appeals relied on Davis v. Detroit, 149 Mich.App. 249, 386 N.W.2d 169 (1986), which stated that the lack of a detoxification cell created a defective and dangerous condition allowing application of the public building exception. Because Davis was decided prior to Reardon, it is of questionable authority.

[3] In view of our holding regarding the insufficiency of the evidence of deliberate indifference, we need not deal with Zezulka's claim that she is entitled to qualified immunity despite having failed to properly plead that affirmative defense. With regard to the jury instruction given by the trial court, it necessarily follows from our holding today that a proper instruction must incorporate a deliberate indifference standard of liability.

[4] The federal circuit courts have applied the deliberate indifference standard to due process claims in a number of jail suicide cases. These courts have found that the negligent failure to prevent a suicide is an insufficient basis upon which to rest a Fourteenth Amendment due process claim under 42 U.S.C. § 1983. Molton v. City of Cleveland, supra; Partridge v. Two Unknown Police Officers of the City of Houston, 791 F.2d 1182, 1187 (C.A. 5 1986); Roberts v. City of Troy, 773 F.2d 720 (C.A. 6 1985); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (C.A. 7 1983).

[5] As in Green v. Berrien General Hosp. Auxiliary, Inc, 437 Mich. 1, 464 N.W.2d 703 (1990), this case must be decided on the basis of the law as it existed before the Legislature's amendments of the governmental tort liability act, M.C.L. §§ 691.1401-691.1413; M.S.A. §§ 3.996(101)-3.996(113), in 1986. 1986 PA 175.

[6] If the plaintiff had claimed that Zezulka failed to evaluate Hickey as suicidal, that claim would fail. Under Canon, supra, 430 Mich. at 338, 422 N.W.2d 688, the failure to evaluate Hickey as suicidal must be considered a discretionary-decisional action that would be entitled to governmental immunity. However, that is not the claim here. Instead, the plaintiff's second claim rests on Zezulka's failure to properly supervise Hickey.

[7] A prisoner suicide presents a unique situation where the state has voluntarily taken complete and total control of the plaintiff's actions and well-being. Because of this unique nature, we limit our holding to similar jail--or incarceration-type situations. Therefore, we do not decide whether a plaintiff's intentional conduct could be a superseding cause of the plaintiff's injury in other situations not similar to the facts of this case.

[8] We have often cited with approval the sections of the Restatement dealing with superseding cause. See, e.g., Johnston v. Harris, supra; Sweet v. Ringwelski, 362 Mich. 138, 106 N.W.2d 742 (1961); Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959). We find these sections instructive on this issue not previously decided by this Court.

[9] We note as well that the comment accompanying the standard jury instruction regarding comparative negligence cites Placek, supra, indicating that the standard instruction, which we have already said would not be appropriate in this case, is derived from this Court's reasoning and our decision in Placek.

[10] In fact, our Brother Justice Griffin questioned Zezulka's counsel during oral argument whether she had abandoned her claim that a comparative negligence instruction should have been given, and she responded in the affirmative.

[11] See Prosser, supra at § 67, p. 478, noting that in some jurisdictions that recognize the law of strict liability in tort, apportionment of damages, on the basis of the plaintiff's negligence, is not available:

"A few courts have held the doctrine [of comparative negligence] to be entirely inapplicable to actions for strict products liability, reasoning that to compare a user's fault with the maker's no-fault responsibility is to mix apples with oranges, and that to reduce the user's damages would undermine the strict products liability goal of encouraging manufacturers to anticipate and protect against consumer negligence."

A strict products liability case is analogous to a jail suicide case because in both situations the plaintiff's fault exceeds the defendant's in both degree and kind, and the defendant's duty encompasses the foreseeable violation of the standard of care by the plaintiff. While this Court has not adopted the doctrine of strict products liability, see Prentis v. Yale Mf'g Co., 421 Mich. 670, 365 N.W.2d 176 (1984), we nevertheless find this reasoning persuasive and supportive of our holding here that Zezulka is not entitled to mitigation of damages based on the fault of Hickey in taking his own life.

__________

[1] See Prosser & Keeton, Torts (5th ed.), § 44, p. 311; Jamison v. Storer Broadcasting Co., 511 F.Supp. 1286 (E.D.Mich.1982); Dist. of Columbia v. Peters, 527 A.2d 1269, 1275 (D.C.App.1987); Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217 (1965); Stasiof v. Chicago Hoist & Body Co., 50 Ill.App.2d 115, 200 N.E.2d 88 (1964); Wallace v. Bounds, 369 S.W.2d 138 (Mo.1963); Scott v. Greenville Pharmacy, Inc., 212 S.C. 485, 48 S.E.2d 324, 11 A.L.R.2d 745 (1948).

[2] See McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123 (1983); Seiler v. Bethany, 746 P.2d 699 (Okla.Ct.App.1987).

[3] Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979).

[4] This problem was discussed in Prosser & Keeton, Torts (5th ed.), § 65, p. 453:

"It is perhaps unfortunate that contributory negligence is called negligence at all. 'Contributory fault' would be a more descriptive term. Negligence as it is commonly understood is conduct which creates an undue risk of harm to others. Contributory negligence is conduct which involves an undue risk of harm to the actor himself. Negligence requires a duty, an obligation of conduct to another person. Contributory negligence involves no duty, unless we are to be so ingenious as to say that the plaintiff is under an obligation to protect the defendant against liability for the consequences of the plaintiff's own negligence."

[5] Op., p. 121.

[6] See Davis v. Detroit, 149 Mich.App. 249, 386 N.W.2d 169 (1986), York v. Detroit, 438 Mich. 744, 475 N.W.2d 346 (1991), Molton v. Cleveland, 839 F.2d 240 (C.A. 6 1988), Dezort v. Hinsdale, 35 Ill.App.3d 703, 342 N.E.2d 468 (1976) (the court found that the issue of contributory fault of the decedent in a jail suicide case was a question for the jury), and Belen v. Harrell, 93 N.M. 601, 604, 603 P.2d 711 (1979) (the trial court erred in refusing to instruct the jury regarding contributory negligence in a jail suicide case).

[7] It may be true, as noted in the lead opinion, that a few jurisdictions do not apply comparative fault principles in strict products liability cases (op., p. 122 n. 11). However, many other jurisdictions do apportion fault in such cases. See, e.g., Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F.Supp. 598 (D.Idaho 1976); Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42 (Alaska 1976). In Michigan, the application of comparative fault principles to products liability cases is required by statute. M.C.L. § 600.2949(1); M.S.A. § 27A.2949(1). This statute applies to all products liability actions, including those based upon breach of warranty. Karl v. Bryant Air Conditioning, 416 Mich. 558, 569, 331 N.W.2d 456 (1982). Such an action "generally focuses upon the fitness of the product, irrespective of the defendant's conduct." Prentis v. Yale Mf'g Co., 421 Mich. 670, 692, 365 N.W.2d 176 (1984). It is, therefore, apparent that courts and juries are able to compare different kinds of conduct and that such a comparison is even required by statute in certain actions.

__________

[1] M.C.L. § 691.1406; M.S.A. § 3.996(106).

[2] The rule--Police Services General Order Number 79-89--provides:

"No prisoner shall be left unattended unless he is first searched and secured in a segregation room. All offensive and defensive weapons or other objects which could harm an officer, the prisoner or other prisoners shall be removed and properly secured."

[3] The jury found the other defendants negligent, but that their negligence was not a proximate cause of Hickey's death.

[4] Brickley, J., op., p. 113.

[5] Op., p. 114.

[6] In Reardon v. Dep't of Mental Health, 430 Mich. 398, 410, 424 N.W.2d 248 (1988), this Court referred to Bush and Lockaby v. Wayne County, 406 Mich. 65, 276 N.W.2d 1 (1979), as cases where the building exception applies when the design or use is dangerous or defective in light of the uses or activities for which the building has been designed or is being used.

[7] Op., p. 113.

[8] The opinion refers to "a" cause. The defect here alleged, thus, need not have been the sole cause, and the triers of fact properly found that the building defect and Zezulka's negligence were both proximate causes of the injury.

Susan E. Watts, Portland, argued the cause for appellant. On the briefs were Jack Kennedy, and Kennedy, King, Zimmer & O'Malley, Portland.

E. Richard Bodyfelt, Portland argued the cause for respondent Cleanweld Products, Inc. David H. Williams, Portland, argued the cause for respondent G.I. Joe's, Inc. With them on the brief were Kathryn R. Janssen, Bodyfelt, Mount, Stroup & Chamberlain, and David A. Morrison, and Cosgrave, Kester, Crowe, Gidley & Lagesen, Portland.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

[66 Or.App. 64] VAN HOOMISSEN, Judge.

The issue in this tort case is whether plaintiff, a minor, is barred by public policy from suing a manufacturer and retailer for injuries that he sustained as a result of the [672 P.2d 1231] premature explosion of a bomb he was making using defendants' product. The trial court ruled that he is barred. We disagree and reverse and remand.

Plaintiff, age 15, was seriously injured when a pipe bomb he was making exploded prematurely. One of the components he used in making the pipe bomb was Solidox Pellets, a product manufactured by defendant Cleanweld for use in welding. It was sold to him by defendant G.I. Joe's.

Plaintiff sued in negligence and strict product liability. He alleged, inter alia, that defendants were negligent in selling Solidox to a minor, in failing adequately to warn of the dangerous characteristics of their product, in putting the pellets in commerce in violation of Oregon law and in selling a dangerously defective product. The trial court dismissed the case before trial in what the parties have denominated an "order in the nature of a summary judgment." The court stated:

"Now the basis of my ruling at this time is not going to involve other matters the defendants set up. Although I think it does have--there are a number of problems involved in this case. The basis of my ruling is since this young man has definitely agreed he was violating a law making a pipe bomb this Court is of the opinion that it would be a violation of public policy to allow him to recover for his own acts realizing that he is 15 years of age, but--but subject to the domestic relations court."

In effect, the trial court concluded that, even if defendants were negligent, or the products were abnormally dangerous or were marketed in violation of Oregon law, plaintiff is barred from recovery as a matter of law, despite the legislature's directive that the burden of injuries caused by defective products should be placed on those who manufacture and sell them. See ORS 30.920; see also Restatement (Second) of Torts § 402A, comment c (1977).

The Restatement (Second) of Torts § 889 (1977) states:

[66 Or.App. 65] "One is not barred from recovery for an interference with his legally protected interests merely because at the time of the interference he was committing a tort or a crime. * * *

" * * *

"comment b.

"The fact that one is doing an illegal act does not prevent him from maintaining an action for harm caused by the negligence or abnormally dangerous activities of a third person."

Defendant's contention, that there is a strong public policy against the illegal manufacture of explosives, is correct. See ORS 480.120 and 480.240. That policy is best effectuated, however, through penal laws. See, e.g., ORS 166.370 and 164.365.^[1]

Reversed and remanded.

[1] Barring a person who may have violated a criminal statute from seeking civil damages for personal injuries might violate Article I, section 10, of the Oregon Constitution, which provides in relevant part:

" * * * [E]very man shall have remedy by due course of law for injury done him in his person, property or reputation."

[180 Cal.App.3d 498] Royce & Seaman, Royce & Inferrera, George R. Royce, John M. Inferrera and William J. Moon, for plaintiff and appellant.

Veatch, Carlson, Grogan & Nelson, James C. Galloway, Jr., Michael E. Wasserman, Greines, Martin, Stein & Richland, Kent L. Richland and Regina Covitt, for defendant and respondent.

SPENCER, Presiding Justice.

INTRODUCTION

Plaintiff Frances J. Hector appeals from an order dismissing her second and third causes of action against defendant following the granting of defendant's motion for partial summary judgment.

STATEMENT OF FACTS

Plaintiff filed a complaint against Cedars-Sinai Medical Center (Cedars-Sinai) and American Technology, Inc., alleging personal injury resulting from the implantation of a defective pacemaker. The pacemaker was manufactured by American Technology, Inc. and implanted at Cedars-Sinai by plaintiff's physician, Dr. Eugene Kompaniez.

The complaint contained three causes of action: negligence, strict liability and breach of warranty. Cedars-Sinai moved for partial summary judgment on plaintiff's second and third causes of action, strict liability and breach [180 Cal.App.3d 499] of warranty, alleging as a matter of law there were no triable issues of fact. The trial court granted the motion. Plaintiff subsequently requested and received dismissal of the first cause of action, negligence, against Cedars-Sinai. The trial court then issued [225 Cal.Rptr. 596] its order dismissing the second and third causes of action.^[1]

CONTENTION

Plaintiff contends the trial court erred in finding Cedars-Sinai was exempt from the application of the strict products liability doctrine. For the reasons set forth below, we disagree.

DISCUSSION

[180 Cal.App.3d 500] A motion for summary judgment properly is granted where the "affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice ... may be taken" in support of and in opposition to the motion "show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c, subds. (b), (c).) The moving party's papers will be strictly construed, accepting as fact only those portions not contradicted by opposing papers ( Harding v. Purtle (1969) 275 Cal.App.2d 396, 399, 79 Cal.Rptr. 772), while the opposing party's papers are liberally construed, all facts therein being accepted as true (Orser v. George (1967) 252 Cal.App.2d 660, 669, 60 Cal.Rptr. 708). (Kelleher v. Empresa Hondurena de Vapores, S.A. (1976) 57 Cal.App.3d 52, 56, 129 Cal.Rptr. 32.) Every reasonable doubt will be resolved in favor of the complaint. (Schaefer v. Manufacturers Bank (1980) 104 Cal.App.3d 70, 78, 163 Cal.Rptr. 402; Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 626-627, 157 Cal.Rptr. 248.)

The trial court granted defendant's motion for partial summary judgment on the basis of Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 98 Cal.Rptr. 187. In Silverhart, plaintiff was undergoing surgery at defendant hospital when a surgical needle broke; the needle remained permanently imbedded in plaintiff's body. The trial court refused to instruct the jury as to the theory of strict liability.

On appeal, the court first recalls the origin of the application of strict liability in California: Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 held that " '[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.' (At p. 62 [27 Cal.Rptr. 697, 377 P.2d 897].)" (Silverhart, supra, 20 Cal.App.3d at p. 1025, 98 Cal.Rptr. 187.) The court then notes the expansion of the doctrine to impose strict liability on others in the chain of distribution, not merely manufacturers. (Id., at p. 1026, 98 Cal.Rptr. 187.) For example, Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 extends strict liability to retailers since they are "engaged in the business of distributing goods to the public" and "are an integral part of the overall producing and marketing [180 Cal.App.3d 501] enterprise that should bear the cost of injuries resulting from defective products." (At p. 262, 37 Cal.Rptr. 896, 391 P.2d 168.) This rule is stated in section 402A of the Restatement Second of Torts: "(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold...." (See Silverhart, supra, 20 [225 Cal.Rptr. 597] Cal.App.3d at p. 1028, 98 Cal.Rptr. 187; see also Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 475, 85 Cal.Rptr. 629, 467 P.2d 229.)

After surveying the cases which expand the scope of strict liability, the Silverhart court observes: "A significant common element running through the cases is that each of the defendants against whom the standard of strict liability has been applied played an integral and vital part in the overall production or marketing enterprise. At the very least the defendant in each case was a link in the chain of getting goods from the manufacturer to the ultimate user or consumer.... Plaintiff seeks to extend the doctrine of strict liability to a hospital that furnishes, in connection with the care and treatment of a patient, a product that proves to have a defect that causes injury to the patient. The theory upon which she seeks to predicate such liability is that the hospital is a 'supplier' of such product and, therefore, should be subject to the same standard of liability as any other supplier of articles or products." (20 Cal.App.3d at p. 1026, 98 Cal.Rptr. 187, citations omitted.)

The court then examines two key cases in which strict liability has not been applied to the medical profession: "In Magrine v. Krasnica [ (1967) ] 94 N.J. Super. 228 [227 A.2d 539], affirmed 100 N.J.Super. 223 [241 A.2d 637], and 53 N.J. 259 [250 A.2d 129], the court declined to apply the doctrine of strict liability to a dentist whose drill, with a latent defect, broke while he was working on his patient, causing injury to the patient. The court stated, 'Of ... meaningful significance is a recognition that the essence of the transaction between the retail seller and the consumer relates to the article sold. The seller is in the business of supplying the product to the consumer. It is that, and that alone, for which he is paid. A dentist or a physician offers, and is paid for, his professional services and skill. That is the essence of the relationship between him and his patient.' (94 N.J.Super. at p. 235 [227 A.2d at p. 543].)

"The foregoing statement in Magrine was cited with approval in Carmichael v. Reitz [(1971)] 17 Cal.App.3d 958, 979 [95 Cal.Rptr. 381].... In Carmichael it was held that the doctrine of strict liability did not apply to a doctor who prescribed a drug which produced untoward results in a patient. In that case we find the following rationale: '[T]here is a difference in status or classification [180 Cal.App.3d 502] between those upon whom the courts have heretofore imposed the doctrine of strict liability and a physician who prescribes an ethical drug to achieve a cure of the disorders for which the patient has sought his professional services. The former act basically as mere conduits to the distribution of the product to the consumer; the latter sells or furnishes his services as a healer of illnesses. The physician's services depend upon his skill and judgment derived from his specialized training, knowledge, experience, and skill. The physician prescribes the medicine in the course of chemotherapy only as a chemical aid or instrument to achieve a cure. A doctor diagnosing and treating a patient normally is not selling either a product or insurance. One of the requisites which the Restatement prescribes for the imposition of strict liability is that "the seller is engaged in the business of selling such product." (Rest.2d Torts, § 402A.)' (See com. f.)" (Silverhart v. Mount Zion Hospital, supra, 20 Cal.App.3d at pp. 1026-1027, 98 Cal.Rptr. 187, emphasis original.)

The Silverhart court was "persuaded that the rationale of Magrine and Carmichael applies with equal force to a hospital in the exercise of its primary function which is to provide medical services. A hospital is not ordinarily engaged in the business of selling any of the products or equipment it uses in providing such services. The essence of the relationship between a hospital and its patients does not relate essentially to any product or piece of equipment it uses but to the professional services it provides." (Id., at p. 1027, fn. omitted, 98 Cal.Rptr. 187.) The court notes, however, that "this principle does not apply where the hospital is engaged in [225 Cal.Rptr. 598] activites not integrally related to its primary function of providing medical services, such as the situation where the hospital operates a gift shop which sells a defective product." (Ibid., fn. 4.) The court concludes the rule of strict liability cannot be applied to defendant hospital. (Id., at p. 1028, 98 Cal.Rptr. 187.)

The key to the court's conclusion is the characterization of hospitals as providers of professional medical services, not suppliers of products. This characterization was reiterated by the Supreme Court in Murphy v. E.R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672, 221 Cal.Rptr. 447, 710 P.2d 247, which addresses the question whether a pharmacy should be strictly liable for defects in the drugs which it dispenses. The court first notes the general rule; " 'those who sell their services for the guidance of others ... are not liable in the absence of negligence or intentional midconduct.' " (At p. 677, 221 Cal.Rptr. 447, 710 P.2d 247, quoting from Gagne v. Bertran (1954) 43 Cal.2d 481, 487, 275 P.2d 15.) Murphy cites Silverhart, Magrine and Carmichael as examples of the application of this general rule. It then contrasts the role of the pharmacist with that of the hospital, dentist or doctor: the pharmacist's services are rendered only in connection with the sale of drugs and the pharmacist is in the business of selling drugs, while the hospital, dentist and doctor are not in the business of selling drugs or devices; they use the [180 Cal.App.3d 503] products in the course of treatment, and furnishing services to the patient does not depend upon selling a product. (40 Cal.3d at p. 679, 221 Cal.Rptr. 447, 710 P.2d 247.)^[2]

Cases dealing with blood transfusions and products reflect the same considerations when declining to apply strict liability to hospitals, although there is additional statutory justification for treating these items as services rather than sales. Shepard v. Alexian Brothers Hosp. (1973) 33 Cal.App.3d 606, 109 Cal.Rptr. 132, states: "It needs no extended discussion to perceive that a hospital is primarily devoted to the care and healing of the sick. The supplying of blood by the hospital is entirely subordinate to its paramount function of furnishing trained personnel and specialized facilities in an endeavor to restore the patient's health. Providing medicine or supplying blood is simply a chemical aid or instrument utilized to accomplish the objective of cure or treatment. The patient who enters a hospital goes there not to buy medicine or pills, not to purchase bandages, iodine, serum or blood, but to obtain a course of treatment (Perlmutter v. Beth David Hospital [(1954) 308 N.Y. 100 [123 N.E.2d 792,] 795-796]; Silverhart v. Mount Zion Hospital [, supra,] 20 Cal.App.3d 1022, 1027 [98 Cal.Rptr. 187] ...). It is also obvious that in the normal commercial transaction contemplated int he strict liability cases the essence of the transaction relates solely to the article sold, the seller is in the business of supplying the product to the consumer, and it is that, and that alone, for which he is paid (Magrine v. Spector (1968) 100 N.J.Super. 223 [241 A.2d 637]). The foregoing marked distinctions compel the conclusion that a hospital is not engaged in the business of distributing blood to the public and does not put the blood as a product on the market in order to profit therefrom." (Shepard, supra, 33 Cal.App.3d at p. 611, 109 Cal.Rptr. 132, emphasis original.)

Turning to the facts in the instant case, Howard Allen, M.D., Director of the Cedars-Sinai Cardiac Noninvasive Laboratory states in his declaration that the specific model and type of pacemaker to be implanted in a patient is specified by the surgeon. The surgeon ordinarily contacts the manufacturer's representative to provide for delivery of the pacemaker to the operating room when it is to be implanted. The pacemaker may be sterilized and ready for implantation when it is delivered to the hospital; the manufacturer's representative or the surgeon may pretest the pacemaker, but the hospital employees do not.

[225 Cal.Rptr. 599] Dr. Allen indicated Cedars-Sinai does not routinely stock pacemakers, nor is it in the business of recommending, selling, distributing or testing pacemakers. The treatment provided by Cedars-Sinai in relation to implantation of pacemakers includes pre- and post-operative care, nursing care, a surgical operating room and technicians.

[180 Cal.App.3d 504] Melanie Archibald, Cedars-Sinai Finance Manager for Operating Room Services, stated in her declaration the pacemaker implanted in plaintiff was delivered to Dr. Kompaniez in the operating room on the day of surgery by Jack Albrighton. Dr. Kompaniez had ordered the pacemaker directly from American Technology, Inc.; Cedars-Sinai received the packing slip and invoice slip from the manufacturer. The hospital was billed $2,295.00 for the pacemaker and $250.00 for a bipolar endocardial lead; the hospital added a routine surcharge of 85 percent to the patient's bill for the implanted pacemaker.

Ms. Archibald also indicated Cedars-Sinai does not stock, recommend, distribute or sell any pacemakers. She characterized the hospital's role as facilitating the processing of the implantation by performing the management practice of completing a purchase requisition and completing a charge ticket which is forwarded to patient billing offices.

Cedars-Sinai Director of Finance, Edward Pruchunas, stated in his declaration that Cedars-Sinai is a non-profit California corporation receiving the majority of its funding from payment for services rendered to its patients. Charges for services are billed to the patients in two forms: room and ancillary. The room charge includes the room, meals and routine nursing services. Other items and services are considered ancillary and separate charges are made for their use.

Mr. Pruchunas explained the rates for the services are set so that the cumulative charges for the services will pay for all projected expenditures. The markup for individual services and supplies is set at different levels for different items. Rate increases are applied across-the-board on a department-by-department basis, not on an individual procedure basis, and rates historically are set once a year. Prior to adjusting the rates, a survey is done of room and major high volume services to determine general comparability with rates at other facilities; modifications are proposed where individual charges appear to be incomparable.

The foregoing declarations indicate Cedars-Sinai is not "engaged in the business of distributing [pacemakers] to the public" (Vandermark v. Ford Motor Co., supra, 61 Cal.2d at p. 262, 37 Cal.Rptr. 896, 391 P.2d 168) and does not play "an integral and vital part in the overall production or marketing" of pacemakers (Silverhart v. Mount Zion Hospital, supra, 20 Cal.App.3d at p. 1026, 98 Cal.Rptr. 187; Vandermark, supra, 61 Cal.2d at p. 262, 37 Cal.Rptr. 896, 391 P.2d 168). The hospital does not order pacemakers for itself, but may fill out the purchase requisitions for surgeons who order the devices. The hospital does not stock or recommend pacemakers or provide them to the general public, dealing with pacemakers only in the context of the courses of treatment for particular patients. Even then, it is the surgeon who [180 Cal.App.3d 505] chooses or recommends the particular device to be implanted; the hospital merely provides administrative services in connection with the order and support services in connection with the implantation.

The essence of the relationship between hospital and patient is the provision of professional medical services necessary to effect the implantation of the pacemaker--the patient does not enter the hospital merely to purchase a pacemaker but to obtain a course of treatment which includes implantation of a pacemaker. (Shepard v. Alexian Brothers Hosp., supra, 33 Cal.App.3d at p. 611, 109 Cal.Rptr. 132; Silverhart v. Mount Zion Hospital, supra, 20 Cal.App.3d at p. 1027, 98 Cal.Rptr. 187.) As a provider of services rather than a seller of a product, the hospital is not subject to strict liability for a defective product provided to the patient during the course of [225 Cal.Rptr. 600] his or her treatment. (Murphy v. E.R. Squibb & Sons, Inc., supra, 40 Cal.3d at p. 679, 221 Cal.Rptr. 447, 710 P.2d 247; Shepard, supra, 33 Cal.App.3d at p. 611, 109 Cal.Rptr. 132; Silverhart, supra, 20 Cal.App.3d at pp. 1027-1028, 98 Cal.Rptr. 187; Rest.2d Torts, § 402A.)

Plaintiff argues Cedars-Sinai should not be exempt from the application of strict liability, in that its actions do not fall within any of the three previously recognized categories of exemption: blood and blood products, tools of the trade, and essential conduits. However, this argument presupposes Cedars-Sinai is in fact engaged in the business of selling pacemakers, thus otherwise subject to strict liability for selling a defective product; if the hospital is a provider of services, it is not subject to strict liability and it is unnecessary to find an exemption to protect it from the application of the doctrine.

Moreover, plaintiff's definition of the three exemptions misses the mark; the definitions are based on overly-restrictive readings of the cases from which they are drawn. Blood and blood products are exempt from strict liability for two reasons: First, the need for blood products and the inability of medical science to guarantee their purity or safety, and second, the statutory definition of their provision as a service, not a sale. (Shepard v. Alexian Brothers Hosp., supra, 33 Cal.App.3d at p. 611, 109 Cal.Rptr. 132; Health & Saf.Code, § 1606.) Moreover, as Shepard observes, the supplying of blood to a hospital patient is subordinate to the hospital's primary function of providing a course of treatment to the patient. (33 Cal.App.3d at p. 611, 109 Cal.Rptr. 132.)

Plaintiff's "tools of the trade" exemption is based on Silverhart. Yet, the decision in Silverhart does not depend upon the characterization of the defective needle as a tool of the trade, but upon the definition of a hospital as a provider of services. The opinion merely mentions the hospital itself was a user of the defective needle, since the needle was part of the surgical equipment routinely used by surgeons in the course of the provision of [180 Cal.App.3d 506] medical services. (20 Cal.App.3d at pp. 1027-1028, 98 Cal.Rptr. 187.) The opinion does not turn on the hospital's status as a user.

Plaintiff's third exemption is the "essential conduit or necessary intermediary" "for something like an ethical drug or similar product." However, once again, plaintiff's exemption applies to one who, in plaintiff's own words, "is essentially furnishing services as a healer of illnesses." As previously discussed, one who provides services rather than selling a product is not subject to strict liability.

Rather than focusing on the three "exemptions," the better approach is to view plaintiff's argument as: (1) Cedars-Sinai should be considered a seller of a product, rather than a provider of services, in that it did not rely on its skill and judgment in providing the pacemaker to plaintiff but was a mere conduit in the chain of distribtution from manufacturer to consumer, or (2) even if Cedars-Sinai was providing services, they were not of the type which should be immune from the imposition of strict liability.

In attempting to characterize Cedars-Sinai as engaged in the business of selling a product rather than providing services, plaintiff places heavy emphasis on the 85 percent surcharge on the pacemaker. But the determinative question is not how much the hospital charges for what it does, but what the hospital does. According to the declarations of hospital personnel, the 85 percent surcharge is not designed to provide the hospital with a profit from the sale of the pacemaker but is part of an overall scheme to provide that the cost to patients of services and supplies covers the hospital's projected expenditures and is comparable to the cost for the same items at other facilities. The 85 percent surcharge in and of itself does not place the hospital in the business of selling pacemakers.

Another approach to holding the hospital to be a seller rather than a provider of services is to focus on the fact the hospital, in facilitating the implantation of the pacemaker by completing the purchase requisition [225 Cal.Rptr. 601] and charge ticket and forwarding the latter to the patient billing offices, is acting as a mere conduit to the distribution of the product to the consumer and is not actually furnishing medical services. (See Silverhart v. Mount Zion Hospital, supra, 20 Cal.App.3d at pp. 1026-1027, 98 Cal.Rptr. 187; Carmichael v. Reitz, supra, 17 Cal.App.3d at p. 979, 95 Cal.Rptr. 381.) If the hospital "is engaged in activities not integrally related to its primary function of providing medical services," it is not immune from strict liability. (Silverhart, supra, 20 Cal.App.3d at p. 1027, fn. 4, 98 Cal.Rptr. 187.)

Unlike the products sold in a hospital gift shop, for which the hospital is strictly liable (ibid.), the pacemaker provided to the patient is [180 Cal.App.3d 507] necessary to the patient's medical treatment. While the hospital itself does not use its own medical skill or knowledge in providing its services in connection with the provision of the pacemaker for the patient, the hospital still is engaged in the process of providing everything necessary to furnish the patient with a course of treatment. In this regard, the hospital's actions concerning the provision of the pacemaker are "integrally related to its primary function of providing medical services." (Ibid.)

There also have been attempts made to distinguish between different types of services provided by a hospital. In Johnson v. Sears, Roebuck & Co. (E.D.Wis.1973) 355 F.Supp. 1065, the court divided the services provided by hospitals into two types: professional medical services and mechanical and administrative services, which support the former. (At p. 1066.) The court concluded the latter should not necessarily be exempt from strict liability. (Id., at p. 1067.) This distinction is not necessarily clear or easy to apply. (See Hoven v. Kelble (1977) 79 Wis.2d 444, 256 N.W.2d 379, 390, fn. 13.) The one case applying strict liability on the basis of Johnson is Grubb v. Albert Einstein Medical Center (1978) 255 Pa.Super. 381, 387 A.2d 480, in which the hospital supplied a defective tool to a surgeon who used the tool on plaintiff in surgery, injuring her. Yet, under California law, this constitutes the provision of medical services for which the hospital could not be held strictly liable. As discussed above, the hospital's conduct in the instant case falls within these parameters; hence, it cannot be held strictly liable.

Of equal importance, the policy considerations behind the imposition of strict product liability would not be served by its application here. Strict liability is imposed "to insure that the cost of injuries resulting from defective products are borne by the manufacturers who put such products on the market rather than by the injured persons who are powerless to protect themselves." (Shepard v. Alexian Brothers Hosp., supra, 33 Cal.App.3d at p. 610, 109 Cal.Rptr. 132, emphasis omitted; Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 63, 27 Cal.Rptr. 697, 377 P.2d 897, See also Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 251, 85 Cal.Rptr. 178, 466 P.2d 722.) Further, since the defendant profits from the sale of the products, it is in a good strategic position to protect itself by inquiring about or testing the products, promoting safety through pressure on the manufacturer, selling another product which is not defective, or insuring itself and distributing the risk of injury among the public as a cost of doing business. (Shepard, supra, 33 Cal.App.3d at pp. 610-611, 190 Cal.Rptr. 132; Price, supra, 2 Cal.3d at p. 251, 85 Cal.Rptr. 178, 466 P.2d 722; Vandermark v. Ford Motor Co., supra, 61 Cal.2d at pp. 262-263, 37 Cal.Rptr. 896, 391 P.2d 168.)

Plaintiff asserts the imposition of strict liability will result in lower costs for health care, since the hospital no longer will be able to charge high fees [180 Cal.App.3d 508] for processing the paperwork for pacemakers ordered by physicians for their patients. But because the overall charges to the patients must equal the overall expenditures by the hospital, any decrease in the charge on pacemakers necessarily would mean an increase in another charge, and there would be no overall decrease in the cost to the consumer of health care. Moreover, if a hospital is to be considered a seller who places a product [225 Cal.Rptr. 602] on the market and who must bear the cost of injuries resulting from defective products, it will have to insure itself and distribute the risk of injury among the public as a cost of doing business. This necessarily will result in higher costs for health care.

In the instant case, the hospital does not select the pacemaker for the patient, but the selection is made by the treating physician. Thus, the hospital is in a poor position to protect itself by inquiring about or testing the devices, pressuring the manufacturer to promote product safety or selling a different pacemaker which is not defective. The imposition of strict liability would force the hospital to become involved in the selection process. This might provide added protection to the patient; it might also increase the cost of hospital services. But once the hospital began using its medical knowledge to aid in the selection of a pacemaker, it would be in the position of providing professional medical services, for which it could not be held strictly liable. Thus, there would be no ultimate advantage to putting the hospital in the position of having to take part in the selection process.

For the foregoing reasons, we conclude Cedars-Sinai is not "engaged in the business of selling" pacemakers, but is a provider of medical services which included the provision of the pacemaker implanted in plaintiff. Inasmuch as the hospital is not a seller, it cannot be held strictly liable for injuries to plaintiff caused by defects in the pacemaker.^[3] Accordingly, the trial court did not err in granting the motion for partial summary judgment.

The order is affirmed.

LUCAS and DEVICH, JJ., concur.

[1] While a trial court's grant of partial summary judgment and dismissal of one or more causes of action generally is reviewable only on appeal from the final judgment rendered in the case, an exception to this rule is made where the case involves multiple parties and the court's disposition leaves no issue to be determined between the parties to the appeal. (Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 489, 186 Cal.Rptr. 321, see Justus v. Atchison (1977) 19 Cal.3d 564, 568, 139 Cal.Rptr. 97, 565 P.2d 122.) The effect of plaintiff's dismissal of the first cause of action as to Cedars-Sinai was that the trial court's order of dismissal determined all issues remaining between the parties. Therefore, the order is reviewable on appeal.

[2] However, the court ultimately holds, for other reasons, a pharmacy is not strictly liable for defects in the drugs it sells. (40 Cal.3d at p. 681, 221 Cal.Rptr. 447, 710 P.2d 247.)

[3] For the same reason, Cedars-Sinai cannot be held liable under a breach of warranty theory. (Shepard v. Alexian Brothers Hosp., supra, 33 Cal.App.3d at pp. 614-615, 190 Cal.Rptr. 132.)