[43] COUNSEL

Hollister, Brace & Angle, Hollister & Brace, Robert O. Angle and Richard C. Monk for Plaintiffs and Appellants.

Stearns & Nelson, Stearns, Nelson & LeBerthon, Robert S. Stearns, Lascher & Radar, Edward L. Lascher and Wendy Cole Wilner for Defendant and Appellant.

Benton, Orr, Duval & Buckingham and James F. McGahan for Defendant and Respondent.

OPINION

MOSK, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

(3a) We conclude that the record amply supports the finding of foreseeability. These tragic events unfolded in the middle of a Los Angeles summer, a time when young people were free from the constraints of school and responsive to relief from vacation tedium. [47] Seeking to attract new listeners, KHJ devised an "exciting" promotion. Money and a small measure of momentary notoriety awaited the swiftest response. It was foreseeable that defendant's youthful listeners, finding the prize had eluded them at one location, would race to arrive first at the next site and in their haste would disregard the demands of highway safety.

Indeed, "The Real Don Steele" testified that he had in the past noticed vehicles following him from location to location. He was further aware that the same contestants sometimes appeared at consecutive stops. This knowledge is not rendered irrelevant, as defendant suggests, by the absence of any prior injury. Such an argument confuses foreseeability with hindsight, and amounts to a contention that the injuries of the first victim are not compensable. (4) "The mere fact that a particular kind of an accident has not happened before does not ... show that such accident is one which might not reasonably have been anticipated." (Ridley v. Grifall Trucking Co. (1955) 136 Cal. App.2d 682, 686 [289 P.2d 31].) Thus, the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.

It is of no consequence that the harm to decedent was inflicted by third parties acting negligently. (5) Defendant invokes the maxim that an actor is entitled to assume that others will not act negligently. (Porter v. California Jockey Club, Inc. (1955) 134 Cal. App.2d 158, 160 [285 P.2d 60].) This concept is valid, however, only to the extent the intervening conduct was not to be anticipated. (Premo v. Grigg (1965) 237 Cal. App.2d 192, 195 [46 Cal. Rptr. 683].) If the likelihood that a third person may react in a particular manner is a hazard which makes the actor negligent, such reaction whether innocent or negligent does not prevent the actor from being liable for the harm caused thereby. (Richardson v. Ham (1955) 44 Cal.2d 772, 777 [285 P.2d 269].) (3b) Here, reckless conduct by youthful contestants, stimulated by defendant's broadcast, constituted the hazard to which decedent was exposed.

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

[48] (3c) We need not belabor the grave danger inherent in the contest broadcast by defendant. The risk of a high speed automobile chase is the risk of death or serious injury. Obviously, neither the entertainment afforded by the contest nor its commercial rewards can justify the creation of such a grave risk. Defendant could have accomplished its objectives of entertaining its listeners and increasing advertising revenues by adopting a contest format which would have avoided danger to the motoring public.

Defendant's contention that the giveaway contest must be afforded the deference due society's interest in the First Amendment is clearly without merit. The issue here is civil accountability for the foreseeable results of a broadcast which created an undue risk of harm to decedent. (7) The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act.

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

(8) Defendant, relying upon the rule stated in section 315 of the Restatement Second of Torts, urges that it owed no duty of care to decedent. The section provides that, absent a special relationship, an actor is under no duty to control the conduct of third parties. As explained hereinafter, this rule has no application if the plaintiff's complaint, as here, is grounded upon an affirmative act of defendant which created an undue risk of harm.

[49] The rule stated in section 315 is merely a refinement of the general principle embodied in section 314^[5] that one is not obligated to act as a "good samaritan." (Rest.2d Torts, § 314, com. (a); James, Scope of Duty in Negligence Cases (1953) 47 Nw.U.L.Rev. 778, 803.) This doctrine is rooted in the common law distinction between action and inaction, or misfeasance and nonfeasance. (9) Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. As section 315 illustrates, liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care discussed above.

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

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

Defendant contends that the instruction was argumentative in that it focused exclusively on KHJ and no other defendant. We need not examine the merit of this assertion for defendant itself requested and received an instruction to substantially the same effect. That instruction began, "Every person who engages in a business activity which directs or influences the conduct of others and who, while so engaged exercises ordinary care...."^[7] (10) It is well settled that a party cannot attack the substance of an instruction if he himself proposed similar instructions. (Smith v. Americania Motor Lodge (1974) 39 Cal. App.3d 1, 7 [113 Cal. Rptr. 771].) For the same reason, we reject defendant's contentions that there was no support in the record for the challenged instruction and that it was ambiguous.

(11a) Additionally, defendant claims that independent prejudice arose from the tardy and isolated manner in which the instruction was given. The jury, it is asserted, attached undue importance to the instruction because it was given by itself on the third day of deliberations. We do not agree.

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

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

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

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

[1] The conditions varied from the giving of a correct response to a question to the possession of particular items of clothing.

[2] It is not contended that the Steele vehicle at any time exceeded the speed limit.

[3] Plaintiffs filed a cross-appeal from an order entered after judgment denying them certain costs against Baime and KHJ. They do not assert before this court that the order was erroneous, and we shall therefore affirm the order on the cross-appeal.

[4] Defendant urges that we apply the factors enumerated in Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850, 865 [73 Cal. Rptr. 369, 447 P.2d 609, 39 A.L.R.3d 224], in determining whether it owed a duty to decedent. In that case, however, the primary issue was whether a duty was to be imposed upon the defendant notwithstanding the absence of privity, and we therefore examined considerations appropriate to that contractual framework. For example, the first of the enumerated elements was the extent to which the transaction was intended to affect the plaintiff. Such a consideration manifestly fails to illuminate our inquiry in the present case. Generally speaking, standards relevant to the determination of duty in one particular situation may not be applied mechanically to other cases.

[5] Section 314, states: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."

[6] In Shaferdefendant entered a float in a commercial parade and as the float traveled down the street, employees threw candy to the crowd. Children running to collect the candy injured a spectator. The court distinguished cases in which the conduct of the person who immediately caused the accident was not set in motion by any act of the defendant on the ground that the defendant, in throwing the candy, induced the response of the children which resulted in the plaintiff's injuries.

Contrary to defendant's assertion, Shafer is not distinguishable because there the defendant had actual knowledge children were following the float and scrambling for candy. Such knowledge only obviated the need for a determination that the acts of the children were foreseeable. In the present case, as we have seen, the jury's determination that the accident was foreseeable is supported by the evidence.

[7] The entire instruction read: "Every person who engages in a business activity which directs or influences the conduct of others and who, while so engaged, exercises ordinary care (in the manner in which said activity is conducted) has a right to assume that every other person will perform his duty and obey the law, and in the absence of reasonable cause for thinking otherwise or actual notice to the contrary, it is not negligence for such person to fail to anticipate an accident which can be occasioned only by a violation of law or duty by another person (or persons)."

141 Cal.App.3d 443 (1983)
190 Cal. Rptr. 310

[445] COUNSEL

Bostwick & Rowe and Everett P. Rowe for Plaintiff and Appellant.

Hoge, Fenton, Jones & Appel and Wayne H. Maire for Defendant and Respondent.

OPINION

ANDREEN, J.

Does a business establishment incur liability for wrongful death if it denies use of its telephone to a good samaritan who explains an emergency situation occurring without and wishes to call the police?

(1) This appeal follows a judgment of dismissal of the second cause of action^[1] of a complaint for wrongful death upon a motion for summary judgment. The motion was supported only by a declaration of defense counsel. Both briefs on appeal adopt the defense averments:

"This action arises out of a shooting death occurring on August 9, 1977. Plaintiff's father[^[2]] [Darrell Soldano] was shot and killed by one Rudolph Villanueva on that date at defendant's Happy Jack's Saloon. This defendant owns and operates the Circle Inn which is an eating establishment located [446] across the street from Happy Jack's. Plaintiff's second cause of action against this defendant is one for negligence.

"Plaintiff alleges that on the date of the shooting, a patron of Happy Jack's Saloon came into the Circle Inn and informed a Circle Inn employee that a man had been threatened at Happy Jack's. He requested the employee either call the police or allow him to use the Circle Inn phone to call the police. That employee allegedly refused to call the police and allegedly refused to allow the patron to use the phone to make his own call. Plaintiff alleges that the actions of the Circle Inn employee were a breach of the legal duty that the Circle Inn owed to the decedent." We were advised at oral argument that the employee was the defendant's bartender.^[3] The state of the record is unsatisfactory in that it does not disclose the physical location of the telephone — whether on the bar, in a private office behind a closed door or elsewhere. The only factual matter before the trial court was a verified statement of the defense attorney which set forth those facts quoted above. Following normal rules applicable to motions for summary judgment, we strictly construe the defense affidavit. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal. Rptr. 449, 398 P.2d 785].) Accordingly, we assume the telephone was not in a private office but in a position where it could be used by a patron without inconvenience to the defendant or his guests. We also assume the call was a local one and would not result in expense to defendant.

(2) There is a distinction, well rooted in the common law, between action and nonaction. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49 [123 Cal. Rptr. 468, 539 P.2d 36].) It has found its way into the prestigious Restatement Second of Torts (hereafter cited as Restatement), which provides in section 314: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." Comment c of section 314 is instructive on the basis and limits of the rule and is set forth in the footnote.^[4] The distinction between [447] malfeasance and nonfeasance, between active misconduct working positive injury and failure to act to prevent mischief not brought on by the defendant, is founded on "that attitude of extreme individualism so typical of anglo-saxon legal thought." (Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, pt. I, (1908) 56 U.Pa.L.Rev. 217, 219-220.)

Defendant argues that the request that its employee call the police is a request that it do something. He points to the established rule that one who has not created a peril ordinarily does not have a duty to take affirmative action to assist an imperiled person. (Winkelman v. City of Sunnyvale (1976) 59 Cal. App.3d 509, 511-512 [130 Cal. Rptr. 690].) It is urged that the alternative request of the patron from Happy Jack's Saloon that he be allowed to use defendant's telephone so that he personally could make the call is again a request that the defendant do something — assist another to give aid. Defendant points out that the Restatement sections which impose liability for negligent interference with a third person giving aid to another do not impose the additional duty to aid the good samaritan.^[5]

The refusal of the law to recognize the moral obligation of one to aid another when he is in peril and when such aid may be given without danger and at little cost in effort has been roundly criticized. Prosser describes the case law sanctioning such inaction as a "refus[al] to recognize the moral obligation of common decency and common humanity" and characterizes some of these decisions as "shocking in the extreme.... [¶] Such decisions are revolting to any moral sense. They have been denounced with vigor by legal writers." (Prosser, Law of Torts (4th ed. 1971) § 56, pp. 340-341, fn. omitted.) A similar rule has been termed "morally questionable" by our Supreme Court. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, fn. 5 [131 Cal. Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166].)

Francis H. Bohlen, in his article The Moral Duty to Aid Others as a Basis of Tort Liability, commented: "Nor does it follow that because the law has not as yet recognized the duty to repair harm innocently wrought, that it will continue indefinitely to refuse it recognition. While it is true that the common law does not attempt to enforce all moral, ethical, or humanitarian duties, it is, it is submitted, [448] equally true that all ethical and moral conceptions, which are not the mere temporary manifestations of a passing wave of sentimentalism or puritanism, but on the contrary, find a real and permanent place in the settled convictions of a race and become part of the normal habit of thought thereof, of necessity do in time color the judicial conception of legal obligation....

".... .... .... .... .... ...

"While courts of law should not yield to every passing current of popular thought, nonetheless, it appears inevitable that unless they adopt as legal those popular standards which they themselves, as men, regard as just and socially practicable, but which, as judges, they refuse to recognize solely because they are not the standards of the past of Brian, of Rolle, of Fineux, and of Coke; they will more and more lose their distinctive common law character as part of the machinery whereby free men do justice among themselves." (Bohlen, op. cit. supra, pt. II, 56 U.Pa.L.Rev. 316, 334-337.)

As noted in Tarasoff v. Regents of University of California, supra, 17 Cal.3d at page 435, footnote 5, the courts have increased the instances in which affirmative duties are imposed not by direct rejection of the common law rule, but by expanding the list of special relationships which will justify departure from that rule. For instance, California courts have found special relationships in Ellis v. D'Angelo (1953) 116 Cal. App.2d 310 [253 P.2d 675] (upholding a cause of action against parents who failed to warn a babysitter of the violent proclivities of their child), Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal. Rptr. 240, 447 P.2d 352] (upholding suit against the state for failure to warn foster parents of the dangerous tendencies of their ward), Morgan v. County of Yuba (1964) 230 Cal. App.2d 938 [41 Cal. Rptr. 508] (sustaining cause of action against a sheriff who had promised to warn decedent before releasing a dangerous prisoner, but failed to do so). (Tarasoff, supra, at p. 436, fn. 9.)

And in Tarasoff, a therapist was told by his patient that he intended to kill Tatiana Tarasoff. The therapist and his supervisors predicted the patient presented a serious danger of violence. In fact he did, for he carried out his threat. The court held the patient-therapist relationship was enough to create a duty to exercise reasonable care to protect others from the foreseeable result of the patient's illness.

Section 314A of the Restatement lists other special relationships which create a duty to render aid, such as that of a common carrier to its passengers, an innkeeper to his guest, possessors of land who hold it open to the public, or one who has a custodial relationship to another. A duty may be created by an undertaking to give assistance. (See Rest.2d Torts, supra, § 321 et seq.)

[449] Here there was no special relationship between the defendant and the deceased. It would be stretching the concept beyond recognition to assert there was a relationship between the defendant and the patron from Happy Jack's Saloon who wished to summon aid. But this does not end the matter.

It is time to reexamine the common law rule of nonliability for nonfeasance in the special circumstances of the instant case.

Besides well-publicized actions taken to increase the severity of punishments for criminal offenses,^[6] the Legislature has expressed a societal imperative to diminish criminal activity. Thus, in 1965, it enacted a provision for indemnification of citizens for injuries or damages sustained in crime suppression efforts. (Former Pen. Code, § 13600, added by Stats. 1965, ch. 1395, § 1, p. 3315.) In that section the Legislature declared that "[d]irect action on the part of private citizens in preventing the commission of crimes against the person or property of others, or in apprehending criminals, benefits the entire public." The section does not require direct action by a private citizen; it merely recognizes the societal benefit if one does so. It was designed to stimulate active public involvement in crime control.^[7] (Note, California Enacts Legislation To Aid Victims of Criminal Violence (1965) 18 Stan.L.Rev. 266.)

Crime is a blight on our society and a matter of great citizen concern. The President's Commission on Law Enforcement and the Administration of Justice, Task Force Report: The Police (1967) recognized the importance of citizen involvement in crime prevention: "[C]rime is not the business of the police alone.... The police need help from citizens, ..." (Op. cit. supra, The Community's Role in Law Enforcement, ch. 9, p. 221, fn. omitted.) The commission identified citizen crime reporting programs in some cities. These have proliferated in recent years. (Id., at p. 223.)

The National Advisory Commission on Criminal Justice Standards and Goals, Report on Community Crime Prevention (1973) stated: "Criminal justice professionals readily and repeatedly admit that, in the absence of citizen assistance, neither more manpower, nor improved technology, nor additional money will enable law enforcement to shoulder the monumental burden of [450] combating crime in America." (Op. cit. supra, pt. I, Crime Prevention and The Citizen, ch. 1, Citizen Action, pp. 7-8.)

The Legislature has recognized the importance of the telephone system in reporting crime and in summoning emergency aid. Penal Code section 384 makes it a misdemeanor to refuse to relinquish a party line when informed that it is needed to call a police department or obtain other specified emergency services. This requirement, which the Legislature has mandated to be printed in virtually every telephone book in this state,^[8] may have wider printed distribution in this state than even the Ten Commandments. It creates an affirmative duty to do something — to clear the line for another user of the party line — in certain circumstances.

In 1972 the Legislature enacted the Warren-911-Emergency Assistance Act. This act expressly recognizes the importance of the telephone system in procuring emergency aid. "The Legislature further finds and declares that the establishment of a uniform, statewide emergency [telephone] number is a matter of statewide concern and interest to all inhabitants and citizens of this state." (Gov. Code, § 53100, subd. (b).) The act also impliedly recognizes that "police, fire, medical, rescue, and other emergency services" are frequently sought by use of the telephone. (Ibid.) Further acknowledgment of the importance of the telephone system for summoning emergency aid is found in the act's provision that, by a specified date, all pay telephones "shall ... enable a caller to dial `911' for emergency services, and to reach an operator by dialing `0', without the necessity of inserting a coin." (Gov. Code, § 53112.) Moreover, Pacific Telephone, the largest telephone company in California, recognizing that the telephone can at times be a lifeline, has provided since 1968 a basic minimum rate "designed for the customer needing inexpensive low-usage residential telephone service for essential calls (Lifeline Service)." (Cal. P.U.C. Tariff 4-T (RATE PRACTICE 4-T, 1st Revised Sheet 12).)

The above statutes are cited without the suggestion that the defendant violated a statute which would result in a presumption of a failure to use due care under Evidence Code section 669. Instead, they, and the quotations from the prestigious national commissions, demonstrate that "that attitude of extreme individualism so typical of anglo-saxon legal thought" may need limited reexamination in the light of current societal conditions and the facts of this case to determine whether the defendant owed a duty to the deceased to permit the use of the telephone.

(3a) We turn now to the concept of duty in a tort case. The Supreme Court has identified certain factors to be considered in determining whether a duty is [451] owed to third persons. These factors include: "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]; cf. Raymond v. Paradise Unified School Dist. (1963) 218 Cal. App.2d 1, 8-9 [31 Cal. Rptr. 847].)

We examine those factors in reference to this case. (1) The harm to the decedent was abundantly foreseeable; it was imminent. The employee was expressly told that a man had been threatened. The employee was a bartender. As such he knew it is foreseeable that some people who drink alcohol in the milieu of a bar setting are prone to violence. (2) The certainty of decedent's injury is undisputed. (3) There is arguably a close connection between the employee's conduct and the injury: the patron wanted to use the phone to summon the police to intervene. The employee's refusal to allow the use of the phone prevented this anticipated intervention. If permitted to go to trial, the plaintiff may be able to show that the probable response time of the police would have been shorter than the time between the prohibited telephone call and the fatal shot. (4) The employee's conduct displayed a disregard for human life that can be characterized as morally wrong:^[9] he was callously indifferent to the possibility that Darrell Soldano would die as the result of his refusal to allow a person to use the telephone. Under the circumstances before us the bartender's burden was minimal and exposed him to no risk: all he had to do was allow the use of the telephone. It would have cost him or his employer nothing. It could have saved a life. (5) Finding a duty in these circumstances would promote a policy of preventing future harm. A citizen would not be required to summon the police but would be required, in circumstances such as those before us, not to impede another who has chosen to summon aid. (6) We have no information on the question of the availability, cost, and prevalence of insurance for the risk, but note that the liability which is sought to be imposed here is that of employee negligence, which is covered by many insurance policies. (7) The extent of the burden on the defendant was minimal, as noted.

(4) The consequences to the community of imposing a duty, the remaining factor mentioned in Rowland v. Christian, supra, is termed "the administrative [452] factor" by Professor Green in his analysis of determining whether a duty exists in a given case. (Green, The Duty Problem in Negligence Cases, I (1929) 28 Colum. L. Rev. 1014, 1035-1045; reprinted in Green, The Litigation Process in Tort Law; No Place to Stop in the Development of Tort Law (2d ed. 1977) pp. 174-184.) The administrative factor is simply the pragmatic concern of fashioning a workable rule and the impact of such a rule on the judicial machinery. It is the policy of major concern in this case.

As the Supreme Court has noted, the reluctance of the law to impose liability for nonfeasance, as distinguished from misfeasance, is in part due to the difficulties in setting standards and of making rules workable. (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 435, fn. 5.)

Many citizens simply "don't want to get involved." No rule should be adopted which would require a citizen to open up his or her house to a stranger so that the latter may use the telephone to call for emergency assistance. As Mrs. Alexander in Anthony Burgess' A Clockwork Orange learned to her horror, such an action may be fraught with danger. It does not follow, however, that use of a telephone in a public portion of a business should be refused for a legitimate emergency call. Imposing liability for such a refusal would not subject innocent citizens to possible attack by the "good samaritan," for it would be limited to an establishment open to the public during times when it is open to business, and to places within the establishment ordinarily accessible to the public. Nor would a stranger's mere assertion that an "emergency" situation is occurring create the duty to utilize an accessible telephone because the duty would arise if and only if it were clearly conveyed that there exists an imminent danger of physical harm. (See Rest.2d Torts, supra, § 327.)

Such a holding would not involve difficulties in proof, overburden the courts or unduly hamper self-determination or enterprise.

A business establishment such as the Circle Inn is open for profit. The owner encourages the public to enter, for his earnings depend on it. A telephone is a necessary adjunct to such a place. It is not unusual in such circumstances for patrons to use the telephone to call a taxicab or family member.

We acknowledge that defendant contracted for the use of his telephone, and its use is a species of property. But if it exists in a public place as defined above, there is no privacy or ownership interest in it such that the owner should be permitted to interfere with a good faith attempt to use it by a third person to come to the aid of another.

The facts of this case come very nearly within section 327 of the Restatement (see fn. 5, ante) which provides that if one knows that a third person is ready to [453] give aid to another and negligently prevents the third person from doing so, he is subject to liability for harm caused by the absence of the aid. Section 327 is contained in topic 8 of the Restatement, "Prevention of Assistance by Third Persons." The scope note for this topic provides that the "actor can prevent a third person from rendering aid to another in many ways including the following: ... second, by interfering with his efforts to give aid; third, by injuring or destroying the usefulness of a thing which the third person is using to give aid or by otherwise preventing him from using it. ..."^[10] (Rest.2d Torts, supra, scope note, p. 145, italics added.)

(3b) We conclude that the bartender owed a duty to the plaintiff's decedent to permit the patron from Happy Jack's to place a call to the police or to place the call himself.

It bears emphasizing that the duty in this case does not require that one must go to the aid of another. That is not the issue here. The employee was not the good samaritan intent on aiding another. The patron was.

It would not be appropriate to await legislative action in this area. The rule was fashioned in the common law tradition, as were the exceptions to the rule. (See Prosser, op. cit. supra, at pp. 340-343.) To the extent this opinion expands the reach of section 327 of the Restatement, it represents logical and needed growth, the hallmark of the common law. It does not involve the sacrifice of other respectable interests.

(5) The courts have a special responsibility to reshape, refine and guide legal doctrine they have created. (People v. Drew (1978) 22 Cal.3d 333, 347 [149 Cal. Rptr. 275, 583 P.2d 1318].) As our Supreme Court summarized in People v. Pierce (1964) 61 Cal.2d 879, 882 [40 Cal. Rptr. 845, 395 P.2d 893], in response to an argument that any departure from common law precedent should be left to legislative action, "In effect the contention is a request that courts abdicate their responsibility for the upkeep of the common law. That upkeep it needs continuously, as this case demonstrates."

The words of the Supreme Court on the role of the courts in a common law system are well suited to our obligation here: "`The inherent capacity of the common law for growth and change is its most significant feature. Its development has been determined by the social needs of the community which it serves. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society, and adapting itself to the gradual change of trade, commerce, arts, inventions, and the needs of the country.'...

[454] "In short, as the United States Supreme Court has aptly said, `This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.' (Hurtado v. California (1884) 110 U.S. 516, 530....) But that vitality can flourish only so long as the courts remain alert to their obligation and opportunity to change the common law when reason and equity demand it: `The nature of the common law requires that each time a rule of law is applied, it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.' (Fns. omitted.) (15 Am.Jur.2d, Common Law, § 2, p. 797.) Although the Legislature may of course speak to the subject, in the common law system the primary instruments of this evolution are the courts, adjudicating on a regular basis the rich variety of individual cases brought before them." (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 394 [115 Cal. Rptr. 765, 525 P.2d 669], fn. omitted.)

Examples of the growth of the common law in recent California cases are abundant.^[11]

The creative and regenerative power of the law has been strong enough to break chains imposed by outmoded former decisions. What the courts have power to create, they also have power to modify, reject and re-create in response to the needs of a dynamic society. The exercise of this power is an imperative function of the courts and is the strength of the common law. It cannot be surrendered to legislative inaction.

Prosser puts it this way: "New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none had been recognized before.... The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself [455] operate as a bar to the remedy." (Prosser, op. cit. supra, at pp. 3-4, fns. omitted.)

The possible imposition of liability on the defendant in this case is not a global change in the law. It is but a slight departure from the "morally questionable" rule of nonliability for inaction absent a special relationship. It is one of the predicted "inroads upon the older rule." (Rest.2d Torts, supra, § 314, com. c.) It is a logical extension of Restatement section 327 which imposes liability for negligent interference with a third person who the defendant knows is attempting to render necessary aid. However small it may be, it is a step which should be taken.

(3c) We conclude there are sufficient justiciable issues to permit the case to go to trial and therefore reverse.

Franson, Acting P.J., and Stanton, J.,^[12] concurred.

[1] This was the only cause of action against defendant Howard O'Daniels. The judgment is therefore an appealable order. (Justus v. Atchison (1977) 19 Cal.3d 564, 568 [139 Cal. Rptr. 97, 565 P.2d 122].)

[2] Any right of the plaintiff to recover would, of course, be derivative.

[3] The defendant's liability would be affixed, if at all, by the concept of respondeat superior.

[4] "The rule stated in this Section is applicable irrespective of the gravity of the danger to which the other is subjected and the insignificance of the trouble, effort, or expense of giving him aid or protection.

"The origin of the rule lay in the early common law distinction between action and inaction, or `misfeasance' and `non-feasance.' In the early law one who injured another by a positive affirmative act was held liable without any great regard even for his fault. But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act. Hence liability for non-feasance was slow to receive any recognition in the law. It appeared first in, and is still largely confined to, situations in which there was some special relation between the parties, on the basis of which the defendant was found to have a duty to take action for the aid or protection of the plaintiff.

"The result of the rule has been a series of older decisions to the effect that one human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other drown. Such decisions have been condemned by legal writers as revolting to any moral sense, but thus far they remain the law. It appears inevitable that, sooner or later, such extreme cases of morally outrageous and indefensible conduct will arise that there will be further inroads upon the older rule." (Rest.2d Torts, supra, § 314, com. c.)

[5] "One who knows or has reason to know that a third person is giving or is ready to give to another aid necessary to prevent physical harm to him, and negligently prevents or disables the third person from giving such aid, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving." (Rest.2d Torts, § 327.)

[6] See, e.g., Penal Code sections 667 (enhancement of sentence for habitual criminals, added by initiative measure, approved by the people, June 8, 1982), 667.5 (additional sentence enhancement for prior violent felonies), 667.7 (life term for certain habitual criminals), 667.6, subdivisions (c), (d) (full, separate, and consecutive sentences for multiple sex crimes), 1170.1 et seq. (Uniform Determinate Sentencing Act), 12022 et seq. (additional penalties for firearm use during a felony).

[7] Former Penal Code section 13600 was reenacted in 1969 as Government Code section 13970 and, among other changes, the Legislature added that "rescuing a person in immediate danger of injury or death as a result of fire, drowning, or other catastrophe" also benefits the entire public. (Stats. 1969, ch. 1111, § 3, p. 2168.)

[8] Penal Code section 384, subdivision (c).

[9] The moral right of plaintiff's decedent to have the defendant's bartender permit the telephone call is so apparent that legal philosophers treat such rights as given and requiring no supporting argument. (See Dworkin, Taking Rights Seriously (Harv. U. Press 1978) p. 99.) The concept flows from the principle that each member of a community has a right to have each other member treat him with the minimal respect due a fellow human being. (Id., at p. 98.)

[10] Prosser states: "Even though the defendant may be under no obligation to render assistance himself, he is at least required to take reasonable care that he does not prevent others from giving it." (Prosser, op. cit. supra, at p. 348.)

[11] See, e.g., Turpin v. Sortini (1982) 31 Cal.3d 220 [182 Cal. Rptr. 337, 643 P.2d 954] — creating "wrongful life" cause of action for special damages; Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393] — adoption of rule of comparative negligence; Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382 — permitting spousal action for loss of consortium; Rowland v. Christian, supra, 69 Cal.2d 108 — termination of distinctions between trespassers, licensees and invitees to determine liability of possessor of land; Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 [27 Cal. Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049] — introduction of strict products liability; Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 [11 Cal. Rptr. 89, 359 P.2d 457] — abrogation of governmental immunity; Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762 [97 P.2d 798] — overruling the doctrine of charitable immunity; Scott v. McPheeters (1939) 33 Cal. App.2d 629 [92 Cal. Rptr. 678, 93 P.2d 562] — establishing that child may sue for prenatal injury.

[12] Assigned by the Chairperson of the Judicial Council.

198 Cal.App.3d 971 (1988)
244 Cal. Rptr. 103

[972] COUNSEL

Andrew H. Lange and Lange & Lange for Plaintiff and Appellant.

Paul C. Glusman for Defendant and Respondent.

OPINION

LOW, P.J.

Plaintiff Donovan Stangle brought suit against defendant Fireman's Fund Insurance Company for plaintiff's loss of a sapphire ring, [973] claiming Fireman's Fund could have prevented the theft of the ring by making a telephone available to summon help. The trial court found defendant had no duty to prevent the theft. We affirm.

Plaintiff purchased a sapphire and diamond ring in Honolulu, Hawaii, in December 1979 in exchange for a $30,000 promissory note that was due and payable in six months. Plaintiff testified he bought the ring "to hold it for a short period of time and sell it for a profit." When efforts to market the ring in Seattle proved unsuccessful, plaintiff asked Barnabas Britt, a former girlfriend, to attempt to sell the ring in San Francisco and she would be entitled to any sale proceeds in excess of $45,000.

Ms. Britt placed an advertisement for the ring, priced at $60,000. She was contacted by a man who identified himself as Barry Richards. Ms. Britt arranged for a meeting with Mr. Richards at MacArthur Park restaurant. She showed him the ring, which she had carried in her purse, and a written appraisal that placed the ring's replacement value at $103,000. They discussed price, and Mr. Richards told her he would be in contact.

Later that day, Mr. Richards telephoned Ms. Britt and told her his principal wished to purchase the ring for $50,000. At Mr. Richards's direction, the sale was to take place the next day at defendant's offices on the 14th floor of One Market Plaza in San Francisco. He explained to Ms. Britt that "the person that he represented wanted the ring photographed and insured before he left the premises with it."

Ms. Britt arrived at One Market Plaza with a friend, Maria Antonidias. Mr. Richards proceeded to the 14th floor while Ms. Britt and Ms. Antonidias retrieved the ring from a nearby safety deposit box. When the women arrived on the 14th floor it was lunchtime and most of the employees were gone. They were greeted by an employee, later identified as Jeanne Hallbach, who was sitting in for the receptionist. Mr. Richards arrived, and the three sat down at an empty desk. While Ms. Britt wrote out a bill of sale, Mr. Richards asked for the ring to have it photographed. Mr. Richards left with the ring, and neither Mr. Richards nor the ring was ever seen again.

Plaintiff does not contend defendant or any of its employees were parties to the crime. The facts upon which plaintiff seeks to premise defendant's liability were set out by Ms. Britt at trial: Ms. Britt testified that her friend "was right behind" Mr. Richards when she went to the receptionist to call for assistance. She explained to the receptionist that her ring had just been stolen, but the receptionist put her hand down on the phone and said, "I'm sorry. This is for building use only." After this, Ms. Britt took the elevator [974] down to the lobby, reported the theft to security, and the police were called. However, it was too late to apprehend the thief.

The main issue presented by plaintiff's complaint was whether defendant's employees owed Ms. Britt a duty, predicated on principles of general negligence, to make a telephone available to Ms. Britt so that she could summon aid. At the conclusion of trial, the court determined "no special relationship was created between the Plaintiff and the Defendant that would impose any duty on the Defendant to prevent the alleged loss." The court further stated in its intended decision: (1) there was no negligent conduct on the part of defendant; (2) the refusal to allow Ms. Britt the use of the telephone after the theft was not the proximate cause of any damage to the plaintiff; and (3) the proximate cause of plaintiff's loss was the negligent conduct of Ms. Britt in the manner she handled the sale and the plaintiff's negligence in entrusting the ring to an inexperienced agent without security or insurance.

(1) Whether a duty to plaintiff exists is primarily a question of law. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal. Rptr. 468, 539 P.2d 36].) As a rule, "[a]bsent a special relationship giving rise to a duty to act, a person is under no duty to take affirmative action to assist or protect another, no matter how great the danger in which the other is placed, or how easily he could be rescued. [Citations.]" (Clarke v. Hoek (1985) 174 Cal. App.3d 208, 215 [219 Cal. Rptr. 845]; Williams v. State of California (1983) 34 Cal.3d 18, 23 [192 Cal. Rptr. 233, 664 P.2d 137].)

A narrow exception to this often harsh rule has been forged by the court when physical violence is threatened. (Soldano v. O'Daniels (1983) 141 Cal. App.3d 443 [190 Cal. Rptr. 310, 37 A.L.R.4th 1183].) In Soldano, it was held that a restaurant owner owed a murder victim a duty to permit a third person the use of a telephone to call police when a death threat was made. In reversing summary judgment, the court rejected the restauranteur's argument that common law never imposed a duty to rescue one in peril. The court held there was a duty to permit use of the telephone to summon emergency aid, but underlined the narrow scope of the new rule: "[T]he duty would arise if and only if it were clearly conveyed that there exists an imminent danger of physical harm." (Id., at p. 452, italics added.) The plaintiff herein argues by analogy that the rule announced in Soldano should be extended to "emergencies arising from all criminal conduct." Such a ruling would be a vast departure from the rule of nonliability for inaction, and we believe it would be ill-advised and unwarranted. (See Clarke v. Hoek, supra, 174 Cal. App.3d at pp. 218-219.)

(2) Plaintiff next urges this court to find that a "special relationship" existed between plaintiff's agent, Ms. Britt, and defendant which would [975] impose an affirmative duty on defendant to aid Ms. Britt in summoning help. Special relationships, which remove bystander status and invoke a duty to rescue or protect, are often based on economic considerations — for instance, a common carrier to its passengers, an innkeeper to his guest, possessors of land who hold it open to the public, or one who has a custodial relationship to another. (See Rest.2d Torts, § 314A.) The court in Soldano acknowledged "[i]t would be stretching the concept beyond recognition" to find a special relationship existed between the person attempting to summon aid and the person refusing to allow the use of the telephone. (Soldano v. O'Daniels, supra, 141 Cal. App.3d at p. 449.) We agree.

(3) Plaintiff would also bear the burden of showing defendant's negligence was the proximate cause of the injury. (Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 765 [91 Cal. Rptr. 745, 478 P.2d 465].) Proximate cause has generally been held to be a question of fact. (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 55-56 [192 Cal. Rptr. 857, 665 P.2d 947]; Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal. App.3d 709, 719 [236 Cal. Rptr. 633].) In this case, substantial evidence supported the judge's decision that plaintiff's loss was not caused by anything done or not done by defendant. The court heard the testimony of Walter Cracke, director of security for One Market Plaza at the time of the theft. Mr. Cracke testified that even if he had received a telephone call from someone in the building reporting a theft and describing the thief, he would not have detained anyone on that basis. His practice would dictate "[w]e send somebody up to you, or you come down to us." In light of this testimony, Ms. Britt's inability to gain immediate access to a telephone becomes inconsequential — she would have been required to personally report the incident in any event. Thus, the court's finding that defendant's conduct was not the proximate cause of plaintiff's loss is fully supported by the record and supplies one more reason to affirm this judgment.

The judgment is affirmed.

King, J., and Haning, J., concurred.

[133] COUNSEL

O'Dorisio, Wedell & Wade and Jeffrey P. Wade for Plaintiff and Appellant.

[134] Stutz, Rentto, Gallagher & Artiano, Robert E. Gallagher, Jr., Maureen L. Shellove, Post, Kirby, Noonan & Sweat, R. Bruce Wayne and Sandra L. Lackey for Defendants and Respondents.

OPINION

STANIFORTH, Acting P.J.

Plaintiff Richard Lee Cohen questions by this appeal the correctness of a summary judgment entered in favor of store owner Southland Corporation, its Linda Vista Road 7-Eleven store franchisee, James R. Simmons and its employee, Timothy G. Wolfe, all defendants in this personal injury action. The dispositive issues are (1) whether under the evidence offered in the motion, foreseeability remained a question of fact for a jury; and (2) whether defendants established as a matter of law they have fulfilled any duty of care owed. (Bigbee v. Pacific Tel & Tel. Co. (1983) 34 Cal.3d 49, 52 [192 Cal. Rptr. 857, 665 P.2d 947].)

FACTS

In the early morning hours of May 14, 1978, Cohen drove into the parking lot of the Linda Vista Road 7-Eleven store. He intended to buy a sandwich. While still in his car, Cohen was approached by a man displaying a revolver. He stated he intended to rob the store, take Cohen hostage and use Cohen's car as the getaway vehicle. The man proceeded into the store, with Cohen following. The clerk on duty that night was defendant Wolfe. Once inside, the robber approached Wolfe at the counter and displayed the gun. Cohen then seized the robber from behind. In the ensuing struggle the man shot Cohen in the stomach. Wolfe, observing the struggle, retreated to the back office, barricaded its door and did not emerge until the police arrived. The assailant escaped and remains at large.

TRIAL COURT PROCEEDINGS

Cohen filed a negligence action against Southland, Simmons and Wolfe. Southland's demurrer to Cohen's complaint was sustained with leave to amend. The amended complaint alleged defendants negligently failed to protect store patrons from assault or other threatening behavior of would-be robbers. The complaint also charged Wolfe negligently and carelessly failed to aid Cohen after Cohen was shot.

Defendants moved for summary judgment. In support of the motion, Southland offered the declaration of Edward Perkins, assistant director of 7-Eleven store security. Perkins asserted — based on his review of Southland's files of all criminal incidents in franchise stores — there was a single [135] criminal incident at the Linda Vista Road store between February 1, 1972, and May 14, 1978. This was a noninjury armed robbery which occurred December 3, 1976. Perkins also detailed Southland's policy of offering an extensive security program to franchisees, including continuing education in robbery prevention technique and methods for dealing with in-progress robberies. He suggested 7-Eleven stores regularly use security devices such as strong boxes for excess cash, warning labels on store windows advising of minimal cash on hand, and a balanced lighting system allowing store clerks to observe outside activities and persons outside to view activities within. Additionally, the stores customarily stack merchandise to a level of not more than four and one-half feet to allow unobstructed vision of the store's interior and parking lot.

Perkins mentioned Simmons had installed a video camera and recording device to monitor cash register sales; he did not suggest Simmons had participated in Southland's extensive security training program, nor did he state the Linda Vista Road 7-Eleven store used the customary security devices he detailed.

Declarations of defendants Simmons and Wolfe also were the basis for the motion. Simmons claimed from the date of his ownership of the Linda Vista Road store franchise, July 1976 to May 14, 1978, there had been a single noninjury criminal incident — "a situation where a man demanded and received the money from the cash register" — not involving a weapon. He stated at the time of the incident the interior of the store and the parking lot were equipped with lights, the store had a video-surveillance system and a window sign indicating a limited amount of cash was kept on hand at night. He also noted a police substation is located one-half mile from the store. During the late night hours the store is visited by police on an average of once an hour on an irregularly timed basis.

Wolfe stated the video-surveillance system was in operation the night of the incident and the interior of the store and the parking lot were illuminated. He also stated he did not notice the robber had a gun until the robber stepped to the store counter. At the same moment Cohen grabbed the robber from behind. Wolfe then related what happened next: "The plaintiff and the suspect struggled, knocking the cash register to the ground. At that point, I stepped back to get out of the way of the cash register and after taking two or three steps backward, I heard a shot. I did not see the gun go off. After hearing the shot, I ran to the back room of the store and locked the door. The back room had a television monitor that was linked to the camera device which was in the area of the cash register. On the television monitor, I could see the cash register area and a portion of the aisles of the store. I feared that the gunman was going to come into the back room so I barricaded [136] the door with a filing cabinet. After barricading the door, I looked back on the television monitor and I did not see the suspect. I did not know whether or not the suspect was still in the store because the camera did not view all of the interior of the store, but rather only the area around the cash register and front door. I therefore did not use the telephone that was in the back room for fear the suspect would hear me. I continued to look at the television monitor and saw the plaintiff get up, walk behind the counter, and then walk toward the front door. A car drove up and then drove away. I then observed another customer walk into the store, and walk behind the counter and use the telephone. Approximately three to five minutes after the shooting, I observed on the television monitor that the police arrived. I picked up the telephone extension in the back room and talked with the police dispatcher who then informed the investigating police officer that I was in the back room. At that point I opened up the door and talked with the police. During the entire incident, up to the point where I saw the police arrive, I did not know where the suspect was and I feared for my safety." According to Wolfe, throughout the incident the robber said nothing.

In opposition to defendants' summary judgment motion Cohen charged in his declaration the Linda Vista Road store was customarily "not very well lit" and "the only light there was on May 14, 1978 at night emanated from the inside of the store." Cohen recalled the inside lights lit only the walk in front of the store; the 7-Eleven sign on the store's roof and the 7-Eleven sign by the street were both turned off. Additionally, there were "no lights on the side of the building that were lit, nor was there any light coming from the Exxon station (which was closed) to the east or the Mexican Restaurant (which was closed) to the west." Cohen also said the store's manager had informed him prior to the shooting — during an interview for a graveyard shift opening for which Cohen had applied — the store was periodically robbed.

Cohen's counsel's investigator by declaration related in 1975 Southland experienced in excess of one robbery per store per year nationwide; in its Pacific Division (which includes San Diego), the number of robberies exceeded the corporate average. Clerk Wolfe's deposition admitted he received no training in robbery or violence prevention techniques upon being hired as the sole clerk for the 10:30 p.m. to 6:30 a.m. shift, beyond the admonition to give a robber anything he or she wanted. Jerry Lowery, Southland's head security officer, stated corporate store employees are required to participate in Southland's security training program but franchise store employees are not; Southland had no means of monitoring franchisee participation.

Finally, Cohen relied on a 1975 study funded in part by Southland which demonstrated 7-Eleven store robberies could be significantly reduced (a 30 [137] percent reduction was achieved under the study's controlled conditions) by prevention procedures such as the strategic placement of signs announcing a low amount of cash-on-hand in the store, improved lighting in the parking lot and the training of store owners, managers and clerks in a series of robbery prevention procedures and violence prevention techniques.

The trial court granted summary judgment for defendants. Cohen appeals.

DISCUSSION

I

(1) On a summary judgment motion, "[t]he moving party bears the burden of furnishing supporting documents that establish the claims of the adverse party are entirely without merit on any legal theory." (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374 [182 Cal. Rptr. 629, 644 P.2d 822].) Summary judgment should be granted only where "there is no triable issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) (2) "`The affidavits of the moving party are strictly construed and those of his [or her] opponent liberally construed, and doubts as to propriety of granting the motion should be resolved in favor of the party opposing the motion.' And, conflicts in affidavits are to be resolved in favor of the nonmoving party." (Albertini v. Schaefer (1979) 97 Cal. App.3d 822, 831 [159 Cal. Rptr. 98], citations omitted. See also Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 436-439 [74 Cal. Rptr. 895, 450 P.2d 271].) With these standards for granting a summary judgment in mind, we review the trial court's implicit determination in granting defendant's summary judgment motion that, under all the circumstances, there was no legal duty owed to Cohen to protect him from criminal activity on the 7-Eleven premises.

II

(3) It is settled law in California that an owner or occupier of land held open for business purposes has a duty to protect visitors from the wrongful acts of third persons which threaten the safety of visitors to the premises when he or she has reasonable cause to anticipate such acts and the probability [138] of resulting injury. (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [52 Cal. Rptr. 561, 416 P.2d 793].)^[1]

A legal duty to use due care is an essential element of a negligence action. (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 53, fn. 3.) (4) The existence of a legal duty of care is a question of law (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750 [167 Cal. Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701]), "to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court." (Prosser, Torts (4th ed. 1971) p. 206, fn. omitted.)

Defendants contend it was not foreseeable Cohen would be injured as a result of third party criminal activity at the Linda Vista Road 7-Eleven store and therefore owed Cohen no duty of care. (5) Foreseeability of the harm is of primary importance in establishing the element of duty (Gomez v. Ticor (1983) 145 Cal. App.3d 622, 628 [193 Cal. Rptr. 600]; Musgrove v. Ambrose Properties (1978) 87 Cal. App.3d 44, 52 [150 Cal. Rptr. 722]). It is ordinarily a question of fact for the jury, and "decided as a question of law only if, `under the undisputed facts there is no room for a reasonable difference of opinion.'" (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 56.)

(6) Foreseeability is not coterminous with duty. It is one of several factors to be balanced in determining whether a duty exists in a particular case. The other factors, articulated in Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], are: "the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to [139] 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."

We examine these factors in IV infra.

The Restatement Second of Torts, section 344, comment (f) details the factual circumstances under which a duty of care arises: "Since the [owner or occupier of land] is not an insurer of the visitor's safety, he [or she] is ordinarily under no duty to exercise any care until he [or she] knows or has reason to know that the acts of the third person are occurring, or are about to occur. He [or she] may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor even though he [or she] has no reason to expect it on the part of any particular individual. If the place or character of his [or her] business, or his [or her] past experience, is such that he [or she] should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he [or she] may be under a duty to take precautions against it. ..." (Italics added.)

III

(7a) It is Southland's position Cohen's injury was unforeseeable because no prior injury-producing armed robbery occurred at the Linda Vista Road store in the preceding six years. Cohen responds by pointing to the conflict in the facts as to the frequency of prior robberies at Simmons' store. Cohen swore Simmons told him the store was periodically robbed; Simmons reported only one previous unarmed, noninjury robbery; Perkins, assistant director of 7-Eleven store security, reported a single prior armed robbery occurred. Such conflicts must be resolved in favor of Cohen, the nonmoving party. We presume for the purpose of determining foreseeability that several prior robberies occurred.

Even if defendants established, without question, but a single prior robbery occurred, the fact of a prior incident at that particular store coupled with the uncontroverted statistic on 7-Eleven robberies generally made foreseeability of a robbery of Simmons' 7-Eleven store a triable issue of fact. It is unclear whether the one robbery or more per store per year statistic represents armed robberies. However, the robbery prevention study commissioned by Southland (relied on by Cohen) notes 80 percent of the 97 7-Eleven store robberies which were the subject of the study were armed robberies. An armed robbery of the 7-Eleven store therefore appears to have been statistically foreseeable. It may also have been foreseeable that a customer, [140] present in the store during an armed robbery, would be injured by the robber.^[2] (8) As the Supreme Court reminded in Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 57-58: "[W]hat is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence." (7b) The Cohen shooting fell within the scope of foreseeable harm, i.e., injury of a store customer present during a criminal act. (See Gomez v. Ticor, supra, 145 Cal. App.3d 622, 628, fn. 1.)

In Gomez v. Ticor, supra, the appeal court found a patron's injury by a third party on business premises arguably foreseeable by the premises owner. Gomez involved the fatal shooting of a patron of an office building's commercial parking structure. The decedent had entered the garage as an armed robbery was in progress and was shot by one of the robbers. On the basis of evidence of the general unsafe character of the neighborhood and of numerous thefts and other crimes which had occurred in the building (not in the garage) in the three years before the attack, the Gomez court ruled the plaintiff had raised a triable issue of fact as to foreseeability of the injury. Cohen has an even stronger argument for foreseeability than the Gomez plaintiff, because the self-same criminal activity at issue in the instant case which led to Cohen's injury had occurred before in the Linda Vista Road store.

The California Supreme Court in Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, evidenced a reluctance to remove foreseeability questions from the jury. The Bigbee court reversed a grant of summary judgment, ruling a triable issue of fact existed as to the foreseeability of the risk an automobile might crash into a telephone booth and injure its occupant, where the defendant's evidence placed the booth in a parking lot 15 feet from the side of a major thoroughfare and near a driveway. (34 Cal.3d at p. 58.) The court concluded: "Considering the case law and the circumstances of this case, this court cannot conclude as a matter of law that injury to plaintiff, inflicted by negligent or reckless third party drivers, was unforeseeable. `[J]ust as we may not rely upon our private judgment on this [141] issue, so the trial court may not impose its private judgment upon a situation, such as this, in which reasonable minds may differ.'" (Id., at p. 59, citation omitted and italics added.)

Added to the allegation of previous robberies of Simmons' store and the statistic demonstrating the alarming frequency of robberies in 7-Eleven stores generally, and a general reluctance to remove foreseeability questions from the jury, is a further reason for finding a triable issue of fact as to the foreseeability of injury here. In the very operation of an allnight convenience store, defendants may be said to have created "an especial temptation and opportunity for criminal misconduct," thus increasing the foreseeability of injury resulting from third party misconduct in the early morning hours. (Prosser, Torts (4th ed. 1971) p. 174.)

Cohen makes an unsupported assertion a robbery is five times more likely to occur at night than in the daylight hours. However, common experience and reason support the conclusion more robberies occur at night; fewer people are around to interfere with or witness the crime. Darkness conceals the robber's getaway. A 24-hour convenience store makes an attractive target for night time criminal activity. Gomez v. Ticor, supra, 145 Cal. App.3d at page 629, held temptation to and opportunity for crime was created by operation of a parking structure thus increasing foreseeability of criminal attack within such structure.

Finally, as the Gomez court so aptly stated: "The California Supreme Court has recently reiterated that `"foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct."' [Citations.] Parking structures are relatively new fixtures in `the setting of modern life.' Accordingly, we are not bound by any specific precedent in determining whether attacks on patrons of these structures are foreseeable. Rather, this determination must come as the result of a realistic appraisal of the foreseeability of crime in any such structure; such an appraisal is the jury's task." (Ibid.) Convenience stores are also "relatively new fixtures `in the setting of modern life.'" (Ibid.) As in Gomez, a jury must in light of all the facts, realistically appraise whether customer injury during the course of a Linda Vista Road 7-Eleven store robbery was foreseeable.

IV

Defendants contend, assuming arguendo Cohen's injury was foreseeable, the other factors in the duty analysis weigh adversely to him and dictate a no duty finding. Defendants' summation of the relevant case law is correct. [142] (9) Whenever the duty sought to be imposed upon the defendant would place an extremely onerous burden on both the defendant and the community, and where the defendant is not morally culpable, and where the proposed duty and the measures to be applied in discharge of the duty defy exact delineation and suffer from inherent vagueness, courts have declined to impose a duty when prior similar events did not make the harm highly foreseeable. (See Gomez v. Ticor, supra, 145 Cal. App.3d at pp. 631-632; Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal. App.3d 538, 545 [134 Cal. Rptr. 29]; Rogers v. Jones (1976) 56 Cal. App.3d 346, 352 [128 Cal. Rptr. 404].)

This case, for the following reasons, does not fall within the factual boundaries of cases such as Rogers v. Jones, supra, and 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal. App.3d 901 [172 Cal. Rptr. 528], which require repeated, prior similar incidents — i.e., harm that is highly forseeable — before a duty may be imposed. First, imposition of a duty to take reasonable precautions against early morning robberies of the Linda Vista Road store would not place an extremely onerous burden on both the defendant and the community, as defendants suggest. Defendants characterize Cohen's insistence on such a duty as tantamount to a requirement they hire full-time armed security guards in the hope of deterring nighttime crime. They argue imposing such a duty would result in 7-Eleven franchises' economic ruin, for "[i]t takes no elaborate economic analysis to conclude that small, independently-owned stores run on thin profit margins."

Defendants misapprehend the ramifications of a duty finding here. Imposition of a duty to make Simmons' store reasonably safe against criminal activity is not coincident with requiring the hiring of armed guards. Rather, a jury could determine the duty was more than adequately fulfilled by the less onerous, relatively inexpensive robbery and/or violence deterrence measures described in the Southland-commissioned study, e.g., making sure the store itself and its parking lot were well illuminated, and training store employees in methods for dealing with in-progress robberies. Such measures contributed to a 30 percent reduction in store robberies over the course of the Southland-commissioned study.

The community, in fact, would benefit by imposition of a duty here. As Cohen suggests, keeping a store open in the late evening and early morning hours invites criminal activity. (10) It is only fair and equitable the reasonable costs of protecting store patrons from criminal activity be borne by the owners, the operators and indirectly the patrons of convenience stores and not by the community at large. It is also not unfair that patrons pay a few cents more for items they purchase from such a store and gain the [143] assurance of reasonable protection against criminal activity while shopping there, rather than allow the emotional and physical burden of a criminal attack to fall on the store patron who inadvertently finds himself or herself in the middle of a robbery invited by the store's failure to employ minimal crime deterrence measures. (See Butler v. Acme Markets, Inc. (1982) 89 N.J. 270 [445 A.2d 1141].)

Second, implicit in the foregoing discussion is disagreement with defendants' position the measures to be applied in discharge of the proposed duty defy exact delineation and suffer from inherent vagueness. True, the duty may be fulfilled by various means, and the sufficiency of these means may often be decided by "a lay jury, after the fact." (7735 Hollywood Blvd. Venture v. Superior Court, supra, 116 Cal. App.3d at p. 905.) There is no reason, however, to doubt the capability of the jury to carry out instructions — if such defense is tendered — and limit its inquiry to deciding whether the requisite minimal duty has been satisfied. (Gomez v. Ticor, supra, 145 Cal. App.3d at p. 633.)

(11) Cohen does not contend the injury of a patron in the course of an armed robbery of the Linda Vista Road 7-Eleven was highly foreseeable. He has alleged — and we have taken as true for the purpose of this appeal — at least several prior robberies occurred at Simmons' store. Thus, the degree of foreseeability here is greater than was present in Gomez, where the plaintiff did not allege a single instance of prior assault on the premises. Gomez held the foreseeability there alleged, if confirmed by a jury, would support a minimal duty only to provide the "first line of defense" against a criminal attack, not vague and onerous duties directed at preventing an attack. In the case at bench, providing the "first line of defense" is all that is at issue. We therefore hold if Cohen proves, as he has alleged, his injury was foreseeable, defendants owed him a minimal duty of care.

Cohen has defined the duty he proposes and shown the effectiveness of means to discharge it. The Southland-commissioned study demonstrates if defendants take certain measures defendants will reduce the incidence of robberies and thereby afford store patrons reasonable protection.

V

(12) Defendants have not conclusively (as a matter of law) demonstrated they have fulfilled a minimal duty of care and are therefore entitled to a judgment as a matter of law. From the moving papers it appears Southland has instituted an extensive security training program and 7-Eleven stores regularly use security devices designed to deter robberies. Cohen introduced evidence, however, that Wolfe, the on-duty clerk the night of the incident, [144] received no security training. Additionally, defendants have not alleged the Linda Vista Road store implemented the customary 7-Eleven store security measures, such as a balanced lighting system allowing store clerks to observe outside activities and persons outside to view activities within. The Southland-commissioned study showed improved parking lot lighting contributed to a decline in 7-Eleven store robberies. Yet, there was directly conflicting evidence regarding store lighting on the night of the incident. Cohen recalled the store was "not very well lit" and on the night in question the parking lot was dark, the 7-Eleven roof and street signs were turned off, and the only light in the general vicinity emanated from inside the store. Wolfe insisted the parking lot was illuminated but did not detail the source(s) of the illumination.

The adequacy of defendants' measures to protect store patrons from assault or other threatening behavior of would-be robbers is therefore also a factual issue to be resolved by a jury.

VI

Lastly, Cohen contends defendants have not established, as a matter of law, Wolfe had no duty to rescue Cohen after the shooting. (13) The general rule declares a person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to such a duty. (Rest.2d Torts, § 314, p. 116; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 554, p. 2821.) There was no claim of a special relationship between Wolfe and Cohen which gave rise to the duty to rescue. Wolfe stated in his declaration he feared for his life when the robber displayed the weapon and Cohen grabbed the robber from behind. After retreating to the rear office to avoid being shot, Wolfe continued to fear for his life. He thought the robber was still in the store. In light of Wolfe's patently reasonable fear for his own safety we decline to depart from the general no-duty rule. The trial court properly entered summary judgment on Cohen's fourth cause of action for Wolfe's charged negligent failure to rescue.

DISPOSITION

The summary judgment is reversed as to all but Cohen's fourth cause of action upon which the summary judgment is affirmed.

Wiener, J., and Work, J., concurred.

[1] Appellate decisions of federal and other state courts are virtually unanimous in holding possessors of business premises owe a duty of care to customers to take affirmative steps to control a third party's foreseeable wrongful conduct. (See, e.g., Kenny v. Southeastern Pennsylvania Transp. (3d Cir.1978) 581 F.2d 351, cert. den. 439 U.S. 1073 [59 L.Ed.2d 35, 99 S.Ct. 845]; Hart v. Pennsylvania Turnpike Com'n (W.D. Pa. 1977) 438 F. Supp. 573; Morgan v. Bucks Assoc. (E.D. Pa. 1977) 428 F. Supp. 546; Foster v. Winston-Salem Joint Venture (1981) 303 N.C. 636 [281 S.E.2d 36]; Nallan v. Helmsley-Spear, Inc. (1980) 50 N.J.2d 507 [407 N.E.2d 451]; Alonge v. Rodriquez (Wis. 1979) 279 N.W.2d 207; Whelchel v. Strangways (1976) 275 Ore. 297 [550 P.2d 1228]; Jones v. Oberg (1981) 52 Ore.App.601 [628 P.2d 773]; Murphy v. Penn Fruit Co. (1980) 274 Pa. Super. 427 [418 A.2d 480]; Walkoviak v. Hilton Hotels Corp. (Tex.Civ.App. 1979) 580 S.W.2d 623; Carswell v. Southeastern Pa. Transp. Authority (1978) 259 Pa.Super 167 [393 A.2d 770]; Parslow v. Pilgrim Parking, Inc. (1977) 5 Mass. App. 822 [362 N.E.2d 933]; Morris v. Barnette (Tex.Civ.App. 1977) 553 S.W.2d 648; Atamian v. Supermarkets General Corp. (1976) 146 N.J. Super. 149 [369 A.2d 38]; and Stalzer v. European American Bank (1982) 113 Misc.2d 77 [448 N.Y.S.2d 631].)

[2] Defendants are in error in arguing an armed robbery resulting in injury was necessarily unforeseeable because the prior robbery they admit occurred was a noninjury incident. To state this argument is to refute it. In making this point, defendants rely on cases which rule against foreseeability where prior criminal activity was wholly dissimilar to that which resulted in plaintiffs' injury. These cases actually support Cohen's position. Wingard v. Safeway Stores, Inc. (1981) 123 Cal. App.3d 37 [176 Cal. Rptr. 320], for example, involved a rape at defendant's warehouse. The court noted the dissimilarity of the crime of rape to the crime of theft; the only evidence of prior third party criminal acts relied upon was of prior thefts. The court specifically determined defendant owed no duty to protect against rape where there had been no previous assaults, and the existence of previous thefts did not give reasonable cause to anticipate an assault. Under the Wingard analysis, the defendants owed a duty to protect against an injury-producing armed robbery where there had been a previous armed robbery but not where there had only been previous acts of vandalism.

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

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

ARNOLD, Chief Judge.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Affirmed.

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

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

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

OPINION BY: CARDOZO

OPINION:

The action is for personal injuries.

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

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

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

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

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

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

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

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

248 N.Y. 339

HELEN PALSGRAF, Respondent,

v.

THE LONG ISLAND RAILROAD COMPANY, Appellant. 

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

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

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

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

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

CARDOZO, Ch. J.

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

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

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

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

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

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

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

ANDREWS, J. (dissenting).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment reversed, etc.

50 F.3d 484 (1995)

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

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

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

POSNER, Chief Judge.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AFFIRMED.

928 P.2d 1202 (1996)

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

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

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

OPINION

PER CURIAM.

I. FACTS AND PROCEEDINGS

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

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

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

II. ANALYSIS AND DISCUSSION

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

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

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

A. Any Error Was Harmless

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

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

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

B. Sudden Emergency Instruction Disapproved

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

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

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

Id. at 193.

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

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

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

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

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

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

III. CONCLUSION

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

AFFIRMED.

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

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

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

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

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

2. David Jette did not cause the emergency; and

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

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

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

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

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

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

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

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

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

DORE, J.

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

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

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

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

I

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

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

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

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

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

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

II

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

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

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

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

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

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

III

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

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

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

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

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

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

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

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

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

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

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

...

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

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

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

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

(Italics ours.)

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

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

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

CONCLUSION

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

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

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

ROSELLINI, J., concurs.

PEARSON, J. (concurring)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recently, we stated that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

481 Pa. at 272 n. 9.

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

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

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

483 F. Supp. at 587.

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

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

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

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

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

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

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

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

90 Yale L.J. at 1363-64.

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

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

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

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

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

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

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

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

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

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

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

J. BRACHTENBACH, J. (dissenting)

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

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

I

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

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

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

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

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

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

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

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

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

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

II

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DIMMICK, J., concurs with BRACHTENBACH, J.

DOLLIVER, J. (dissenting)

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

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

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

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

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

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

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

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

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

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

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

Reconsideration denied July 21, 1983.

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

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

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

CITE TITLE AS: Martin v Herzog

Negligence Highway Law --- Driving a vehicle at night on public highway without lights is negligence --- Erroneous charge

1. Where a case has been tried and argued on the assumption of a certain fact, it is not important whether that fact might have been a question for the jury. A controversy put out of a case by the parties is not to be put into it by the court.

2. Evidence of a collision occurring more than an hour after sundown between an automobile and an unseen buggy, proceeding without the lights required by the statute (Highway Law [Cons. Laws, ch. 25], § 329-a, as amended by L. 1915, ch. 367), is evidence from which a causal connection may be inferred between the collision and the lack of signals.

3. Where, in an action to recover for the death of plaintiff's intestate, killed in a collision between a wagon in which decedent was riding at night and an automobile, negligence was charged against the driver of the car in that he did not keep to the right of the center of the highway, and negligence against decedent, who was driving the wagon, in that he was traveling without lights as required by the statute, it was error for the court to charge, at plaintiff's request, that ‘the fact that the plaintiff's intestate was driving without a light is not negligence in itself.‘ They should have been told not only that the omission of the lights was negligence, but that it was ‘prima facie evidence of contributory negligence,‘ i. e., that it was sufficient in itself, unless its probative force was overcome, to sustain a verdict that the decedent was in fault. Martin v. Herzog, 176 App. Div. 614, affirmed.

APPEAL from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 2, 1917, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial.

The nature of the action and the facts, so far as material, are stated in the opinion. Hugh A. Thornton and Martin J. Tierney for appellant. The omission of plaintiff's intestate to have a light upon his vehicle was not prima facie evidence of contributory negligence by him. (Amberg v. Kinley, 214 N. Y. 531; Barr v. Green, 210 N. Y. 252; Kelly v. N. Y. S. Rys. Co., 207 N. Y. 342; Mariano v. Lehmaier, 173 N. Y. 530; Donnelly v. City of Rochester, 166 N. Y. 315; Graham v. Manhattan Ry. Co., 149 N. Y. 336; McRickard v. Flint, 114 N. Y. 222; Briggs v. N. Y. C. & H. R. R. R. Co., 72 N. Y. 26; McGrath v. N. Y. C. R. R. Co., 63 N. Y. 522; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Flucker v. Zeigle Brewing Co., 201 N. Y. 40; Orr v. Baltimore & O. R. Co., 168 App. Div. 548; Shields v. Pugh & Co., 122 App. Div. 586; Koch v. Fox, 71 App. Div. 288; Buys v. Third Ave. R. R. Co., 45 App. Div. 11; McCambley v. Staten Is. M. R. R. Co., 32 App. Div. 346; McCauley v. Schneider, 9 App. Div. 279; Fox Constr. Co., Inc., v. Dailey's Towing Line, Inc., 180 App. Div. 593; Fitten v. Sumner, 176 App. Div. 617; Karpeles v. Heine, 227 N. Y. 74.) The court's charge in reference to contributory negligence was correct in every respect and not prejudicial error. (Kelley v. N. Y. C. Rys., 207 N. Y. 342; Mendelson v. Van Rensselaer, 118 App. Div. 516; Barr v. Green, 210 N. Y. 252; Amberg v. Kinley, 214 N. Y. 531.)

Herbert C. Smyth, Roderic Wellman and Alfred W. Andrews for respondent. The refusal to charge defendant's request, that the absence of a light on the buggy was prima facie evidence of contributory negligence, was prejudicial error. (Amberg v. Kinley, 214 N. Y. 531; Racine v. Morris, 201 N. Y. 240; Jetter v. N. Y. C. & H. R. R. R. Co., 2 Abb. Ct. App. Dec. 458; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535; Willy v. Mulledy, 78 N. Y. 310; Pauley v. S. G. & L. Co., 131 N. Y. 90; Lewis v. L. I. R. R. Co., 162 N. Y. 52; Huda v. Am. Glucose Co., 154 N. Y. 474; Lambert v. S. I. R. R. Co., 70 N. Y. 164; Fisher v. Vil. of Cambridge, 133 N. Y. 527.)

CARDOZO, J.

The action is one to recover damages for injuries resulting in death.

Plaintiff and her husband, while driving toward Tarrytown in a buggy on the night of August 21, 1915, were struck by the defendant's automobile coming in the opposite direction. They were thrown to the ground, and the man was killed. At the point of the collision the highway makes a curve. The car was rounding the curve when suddenly it came upon the buggy, emerging, the defendant tells us, from the gloom.

Negligence is charged against the defendant, the driver of the car, in that he did not keep to the right of the center of the highway (Highway Law, sec. 286, subd. 3; sec. 332; Consol. Laws, ch. 25). Negligence is charged against the plaintiff's interstate, the driver of the wagon, in that he was traveling without lights (Highway Law, sec. 329a, as amended by L. 1915, ch. 367). There is no evidence that the defendant was moving at an excessive speed. There is none of any defect in the equipment of his car. The beam of light from his lamps pointed to the right as the wheels of his car turned along the curve toward the left; and looking in the direction of the plaintiff's approach, he was peering into the shadow. The case against him must stand, therefore, if at all, upon the divergence of his course from the center of the highway. The jury found him delinquent and his victim blameless. The Appellate Division reversed, and ordered a new trial.

We agree with the Appellate Division that the charge to the jury was erroneous and misleading. The case was tried on the assumption that the hour had arrived when lights were due. It was argued on the same assumption in this court. In such circumstances, it is not important whether the hour might have been made a question for the jury (Todd v. Nelson, 109 N. Y. 316, 325). A controversy put out of the case by the parties is not to be put into it by us. We say this by way of preface to our review of the contested rulings. In the body of the charge the trial judge said that the jury could consider the absence of light ‘in determining whether the plaintiff's intestate was guilty of contributory negligence in failing to have a light upon the buggy as provided by law. I do not mean to say that the absence of light necessarily makes him negligent, but it is a fact for your consideration.‘ The defendant requested a ruling that the absence of a light on the plaintiff's vehicle was ‘prima facie evidence of contributory negligence.‘ This request was refused, and the jury were again instructed that they might consider the absence of lights as some evidence of negligence, but that it was not conclusive evidence. The plaintiff then requested a charge that ‘the fact that the plaintiff's intestate was driving without a light is not negligence in itself,‘ and to this the court acceded. The defendant saved his rights by appropriate exceptions.

We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway (Highway Law, sec. 329a). By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the established rule in this state (Amberg v. Kinley, 214 N. Y. 531; Karpeles v. Heine, 227 N. Y. 74; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535, 538; Marino v. Lehmaier, 173 N. Y. 530, 536; cf. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 39, 40; Prest-O-Lite Co. v. Skeel, 182 Ind. 583, 600, 601; Newcomb v. Boston Protective Dept., 146 Mass. 596; Bourne v. Whitman, 209 Mass. 155, 163). Whether the omission of an absolute duty, not willfully or heedlessly, but through unavoidable accident, is also to be characterized as negligence, is a question of nomenclature into which we need not enter, for it does not touch the case before us. There may be times, when if jural niceties are to be preserved, the two wrongs, negligence and breach of statutory duty, must be kept distinct in speech and thought (Pollock Torts [[[10th ed.], p. 458; Clark & Linseil Torts [6th ed.], p. 493; Salmond Jurisprudence [5th ed.], pp. 351, 363; Texas & Pac. Ry. Co. v. Rigsby, supra, p. 43; Chicago, B. & Q. Ry. Co. v. U. S., 220 U. S. 559). In the conditions here present they come together and coalesce. A rule less rigid has been applied where the one who complains of the omission is not a member of the class for whose protection the safeguard is designed (Amberg v. Kinley, supra; Union Pac. Ry. Co. v. McDonald, 152 U. S. 262, 283; Kelley v. N. Y. State Rys. 207 N. Y. 342; Ward v. Hobbs, 4 App. Cas. 13). Some relaxation there has also been where the safeguard is prescribed by local ordinance, and not by statute (Massoth v. D. & H. C. Co., 64 N. Y. 524, 532; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488). Courts have been reluctant to hold that the police regulations of boards and councils and other subordinate officials create rights of action beyond the specific penalties imposed. This has led them to say that the violation of a statute is negligence, and the violation of a like ordinance is only evidence of negligence. An ordinance, however, like a statute, is a law within its sphere of operation, and so the distinction has not escaped criticism (Jetter v. N. Y. & H. R. R. Co., supra; Knupfle v. Knickerbocker Ice Co., supra; Newcomb v. Boston Protective Dept., supra; Prest-O-Lite Co. v. Skeel, supra). Whether it has become too deeply rooted to be abandoned, even if it be thought illogical, is a question not now before us. What concerns us at this time is that even in the ordinance cases, the omission of a safeguard prescribed by statute is put upon a different plane, and is held not merely some evidence of negligence, but negligence in itself (Massoth v. D. & H. Canal Co., supra; and cf. Cordell v. N. Y. C. & H. R. R. R. Co., supra). In the case at hand, we have an instance of the admitted violation of a statute intended for the protection of travelers on the highway, of whom the defendant at the time was one. Yet the jurors were instructed in effect that they were at liberty in their discretion to treat the omission of lights either as innocent or as culpable. They were allowed to ‘consider the default as lightly or gravely‘ as they would (THOMAS, J., in the court below). They might as well have been told that they could use a like discretion in holding a master at fault for the omission of a safety appliance prescribed by positive law for the protection of a workman (Scott v. International Paper Co., 204 N. Y. 49; Fitzwater v. Warren, 206 N. Y. 355; Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33). Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes under the statute to another. It is error to tell them that they have. The omission of these lights was a wrong, and being wholly unexcused was also a negligent wrong. No license should have been conceded to the triers of the facts to find it anything else.

We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury. A defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the disaster. A plaintiff who travels without them is not to forfeit the right to damages unless the absence of lights is at least a contributing cause of the disaster. To say that conduct is negligence is not to say that it is always contributory negligence. ‘Proof of negligence in the air, so to speak, will not do‘ (Pollock Torts [10th ed.], p. 472). We think, however, that evidence of a collision occurring more than an hour after sundown between a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals (Lambert v. Staten Island R. R. Co., 70 N. Y. 104, 109, 110; Walsh v. Boston & Maine Railroad, 171 Mass. 52, 58; The Pennsylvania, 19 Wall. 125, 136, 137; Fisher v. Village of Cambridge, 133 N. Y. 527, 532). If nothing else is shown to break the connection, we have a case, prima facie sufficient, of negligence contributing to the result. There may indeed be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous. If that is so, it is for the offender to go forward with the evidence, and prove the illumination as a kind of substituted performance. The plaintiff asserts that she did so here. She says that the scene of the accident was illumined by moonlight, by an electric lamp, and by the lights of the approaching car. Her position is that if the defendant did not see the buggy thus illumined, a jury might reasonably infer that he would not have seen it anyhow. We may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing such an inference, but the decision of the case does not make it necessary to resolve the doubt, and so we leave it open. It is certain that they were not required to find that lights on the wagon were superfluous. They might reasonably have found the contrary. They ought, therefore, to have been informed what effect they were free to give, in that event, to the violation of the statute. They should have been told not only that the omission of the lights was negligence, but that it was ‘prima facie evidence of contributory negligence,‘ i. e., that it was sufficient in itself unless its probative force was overcome (THOMAS, J., in court below) to sustain a verdict that the decedent was at fault (Kelly v. Jackson, 6 Pet. 622, 632). Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road, but he did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless speed that warning would of necessity have been futile. Nothing of the kind is shown. The collision was due to his failure to see at a time when sight should have been aroused and guided by the statutory warnings. Some explanation of the effect to be given to the absence of those warnings, if the plaintiff failed to prove that other lights on the car or the highway took their place as equivalents, should have been put before the jury. The explanation was asked for, and refused.

We are persuaded that the tendency of the charge and of all the rulings following it, was to minimize unduly, in the minds of the triers of the facts, the gravity of the decedent's fault. Errors may not be ignored as unsubstantial when they tend to such an outcome. A statute designed for the protection of human life is not to be brushed aside as a form of words, its commands reduced to the level of cautions, and the duty to obey attenuated into an option to conform.

The order of the Appellate Division should be affirmed, and judgment absolute directed on the stipulation in favor of the defendant, with costs in all courts.

HOGAN, J. (dissenting).

Upon the trial of this action, a jury rendered a verdict in favor of the plaintiff. Defendant appealed from the judgment entered thereon and an order made denying an application to set aside the verdict and for a new trial to the Appellate Division. The latter court reversed the judgment on the law and granted a new trial on questions of law only, the court having examined the facts and found no error therein. The decision thus made was equivalent to a determination by the court that it had passed upon the question of the sufficiency of the evidence and as to whether the verdict rendered by the jury was against the weight of evidence. The effect of that decision was that the order denying the motion to set aside the verdict and grant a new trial was upon the facts properly denied. (Judson v. Central Vt. R. R. Co., 158 N. Y. 597, 602.) A jury and the Appellate Division having determined that upon the facts developed on the trial of the action, the plaintiff was entitled to recover, in view of certain statements in the prevailing opinion, and for the purpose of explanation of my dissent, I shall refer to the facts which were of necessity found in favor of plaintiff and approved by the Appellate Division.

The following facts are undisputed. Leading from Broadway in the village of Tarrytown, Westchester county, is a certain public highway known as Neperham road, which runs in an easterly direction to East View, town of Greenburg. The worked portion of the highway varies in width from twenty-one and one-half feet at the narrowest point a short distance easterly of the place of the collision hereinafter mentioned, to a width of twenty-seven and one-half feet at the point where the collision occurred.

On the evening of August 21st, 1915, the plaintiff, together with her husband, now deceased, were seated in an open wagon drawn by a horse. They were traveling on the highway westerly towards Tarrytown. The defendant was traveling alone on the highway in the opposite direction, viz., from Tarrytown easterly towards East View in an automobile which weighed about three thousand pounds, having a capacity of seventy horse power, capable of developing a speed of seventy-five miles an hour. Defendant was driving the car.

A collision occurred between the two vehicles on the highway at or near a hydrant located on the northerly side of the road. Plaintiff and her husband were thrown from the wagon in which they were seated. Plaintiff was bruised and her shoulder dislocated. Her husband was seriously injured and died as a result of the accident.

The plaintiff, as administratrix, brought this action to recover damages arising by reason of the death of her husband caused as she alleged solely by the negligence of defendant in operating, driving and running the automobile at a high, unlawful, excessive and unsafe rate of speed, in failing to blow a horn or give any warning or signal of the approach of said automobile and in operating, driving and riding said automobile at said time and place upon his left-hand or wrongful side of said road or highway, thereby causing the death of her husband.

Defendant by his answer admitted that he was operating the automobile, put in issue the remaining allegations of the complaint and affirmatively alleged that any injury to plaintiff's intestate was caused by his contributory negligence.

As indicated in the prevailing opinion, the manner in which the accident happened and the point in the highway where the collision occurred are important facts in this case, for as therein stated: ‘The case against him (defendant) must stand, therefore, if at all, upon the divergence of his course from the center of the highway.‘ The evidence on behalf of plaintiff tended to establish that on the evening in question her husband was driving the horse at a jogging gait along on their right side of the highway near the grass which was outside of the worked part of the road on the northerly side thereof; that plaintiff observed about one hundred twenty feet down the road the automobile operated by defendant approaching at a high rate of speed, two searchlights upon the same, and that the car seemed to be upon her side of the road; that the automobile ran into the wagon in which plaintiff and her husband were seated at a point on their side of the road while they were riding along near the grass. Evidence was also presented tending to show that the rate of speed of the automobile was eighteen to twenty miles an hour and the lights upon the car illuminated the entire road. The defendant was the sole witness on the part of the defense upon the subject under consideration. His version was: ‘Just before I passed the Tarrytown Heights Station, I noticed a number of children playing in the road. I slowed my car down a little more than I had been running. I continued to drive along the road, probably I proceeded along the road three hundred or four hundred feet further, I do not know exactly how far, when suddenly there was a crash and I stopped my car as soon as I could after I realized that there had been a collision. Whether I saw anything in that imperceptible fraction of space before the wagon and car came together I do not know. I have an impression, about a quarter of a second before the collision took place, I saw something white cross the road and heard somebody call 'whoa’ and that is all I knew until I stopped my car. * * * My best judgment is I was travelling about twelve miles an hour. * * * At the time of the collision I was driving on the right of the road.‘

The manner in which and the point in the highway where the accident occurred presented a question of fact for a jury. If the testimony of defendant was accredited by the jury, plaintiff and her intestate having observed the approaching automobile deliberately, thoughtlessly or with an intention to avoid the same left their side of the road at a moment when an automobile was rapidly approaching with lights illuminating the road, to cross over to the side of the highway where the automobile should be, and as claimed by defendant was traveling, and thereby collided with the same, or, on the contrary, defendant was driving upon his left side of the road and caused the collision. The trial justice charged the jury fully as to the claims of the parties and also charged that the plaintiff in her complaint specifically alleged the acts constituting negligence on the part of defendant (amongst which was that he was driving on the wrong side of the road thereby causing the death of her husband, the alleged absence of signals having been eliminated from the case) and in order to recover the plaintiff must show that the accident happened in the way and in the manner she has alleged in her complaint. ‘It is for you to determine whether the defendant was driving on the wrong side of the road at the time he collided with the buggy; whether his lights did light up the road and the whole road ahead of him to the extent that the buggy was visible, and so, if he negligently approached the buggy in which plaintiff and her husband were driving at the time. If you find from the evidence here, he was driving on the wrong side of the road and that for this reason he collided with the buggy which was proceeding on the proper side, or if you find that as he approached the buggy the road was so well lighted up that he saw or should have seen the buggy and yet collided with it then you may say, if you so find, that the defendant was careless and negligent.‘ No exception was taken by the defendant to that charge, but at the close of the charge counsel for defendant made certain requests to charge upon the subject as follows:

‘(1) If the jury find that Mr. Martin was guilty of any negligence, no matter how slight, which contributed to the accident, the verdict must be for defendant.

‘(2) In considering the photographs and consideration of which side of the vehicle, wagon, was damaged, that the jury have no right to disregard physical facts, and unless they find the accident happened as described by Mrs. Martin and Mrs. Cain, the verdict must be for the defendant.

‘(3) The plaintiff must stand or fall on her claim as made, and if the jury do not find that the accident happened as substantially claimed by her and her witnesses, that the verdict of the jury must be for defendant.

‘(4) It was the duty of Mr. Martin to keep to the right.‘

Each one of the several requests was charged, and in addition the trial justice charged that if the deceased, Mr. Martin, collided with the automobile while the wagon was on the wrong side of the road, the verdict must be for defendant.

The principal issue of fact was not only presented to the jury in the original charge made by the trial justice, but emphasized and concurred in by counsel for defendant.

The prevailing opinion in referring to the accident and the highway at the point where the accident occurred describes the same in the following language: ‘At the point of the collision, the highway makes a curve. The car was rounding the curve when suddenly it came upon the buggy emerging the defendant tells us from the gloom.‘ Such in substance was the testimony of the defendant but his version was rejected by the jurors and the Appellate Division, and the evidence in the record is ample to sustain a contrary conclusion. As to the statement that the car was rounding ‘a curve,‘ two maps made by engineers from actual measurements and surveys for defendant were put in evidence by counsel for plaintiff. Certain photographs made for the purposes of the trial were also before the jury. I think we may assume that the jurors gave credence to the maps and actual measurements rather than to the photographs and failed to discover therefrom a curve of any importance or which would interfere with an unobstructed view of the road. As to the ‘buggy emerging the defendant tells us from the gloom,‘ evidence was adduced by plaintiff tending to show that the searchlights on defendant's car lighted up the entire roadway to the extent that the vehicle in which plaintiff and her husband were riding was visible, that the evening was not dark, though it appeared as though a rainfall might be expected. Some witnesses testified it was moonlight. The doctor called from Tarrytown who arrived within twenty minutes after the collision, testified that the electric lights all along the highway were burning as he passed over the road. The width of the worked part of the highway at the point of the accident was twenty-seven and one-half feet. About twenty-five feet westerly on the southerly side was located an electric light which was burning. A line drawn across the highway from that light to the point of the accident would be about forty-two feet. One witness called by plaintiff lived in a house directly across the highway from the point of the accident. Seated in a front room it was sufficiently light for her to see plaintiff's intestate when he was driving along the road at a point near a telegraph pole which is shown on the map some ninety or one hundred feet easterly of the point of the accident, when she observed him turn his horse into the right towards the fence. Soon thereafter she heard the crash of the collision and immediately went across the highway and found Mr. Martin in a sitting position on the grass. A witness called by the defendant testified that she was on the stoop of her house, which is across the highway from the point of the accident and about forty feet distant from said point and while seated there she could see the body of Mr. Martin. While she testified the evening was dark, the lights on the highway were sufficient to enable her to see the body of Mr. Martin lying upon the grass forty feet distant. The defendant upon cross-examination was confronted with his testimony given before the coroner where he testified that the road was ‘fairly light.‘

The facts narrated were passed upon by the jury under a proper charge relating to the same, and were sustained by the Appellate Division. The conclusions deducible therefrom are: (A) Defendant was driving his car upon the wrong side of the road. (B) Plaintiff and her intestate were driving a horse attached to the wagon in which they were seated upon the extreme right side of the road. (C) The highway was well lighted. The evening was not dark. (D) Defendant collided with the vehicle in which plaintiff and her husband were riding and caused the accident.

I must here note the fact that concededly there was no light upon the wagon in which plaintiff and her husband were riding, in order that I may express my views upon additional phrases in the prevailing opinion. Therein it is stated: ‘There may indeed be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous.‘ I am in accord with that statement, but I dissent from the suggestion we may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing the inference that if defendant did not see the buggy thus illumined it might reasonably infer that he would not have seen it anyway. Further the opinion states: ‘Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road, but he did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless rate of speed that warning would of necessity be futile. Nothing of the kind is shown.‘ As to the rate of speed of the automobile, the evidence adduced by plaintiff's witnesses was from eighteen to twenty miles an hour, as ‘very fast,‘ further that after the collision the car proceeded one hundred feet before it was stopped. The defendant testified that he was driving about twelve miles an hour, that at such rate of speed he thought the car should be stopped in five or six feet and though he put on the foot brake he ran twenty feet before he stopped. The jury had the right to find that a car traveling at the rate of twelve miles an hour which could be stopped within five or six feet, and with the foot brake on was not halted within one hundred feet must at the time of the collision have been running ‘very fast‘ or at a reckless rate of speed, and, therefore, warning would of necessity be futile. No claim was made that defendant was intoxicated or that he purposely ran into the buggy. Nor was proof of such facts essential to plaintiff's right to recover. This case does not differ from many others wherein the failure to exercise reasonable care to observe a condition is disclosed by evidence and properly held a question of fact for a jury. In the earlier part of the prevailing opinion, as I have pointed out, the statement was: ‘The case against him (defendant) must stand or fall, if at all, upon the divergence of his course from the center of the highway.‘ It would appear that ‘lack of vision whether excusable or not was the cause of the disaster‘ had been adopted in lieu of divergence from the center of the highway. I have, therefore, discussed divergence from the center of the road. My examination of the record leads me to the conclusion that lack of vision was not on the undisputed facts the sole cause of the disaster. Had the defendant been upon his right side of the road, upon the plaintiff's theory he might have been driving recklessly and the plaintiff and her intestate being near to the grass on the northerly side of a roadway twenty-seven feet and upwards in width the accident would not have happened and the presence of or lack of vision would not be material. If, however, as found by the jury, defendant was wrongfully on plaintiff's side of the road and caused the accident, the question of whether or not under the facts in the exercise of reasonable care he might have discovered his error and the presence of plaintiff and thereupon avoid the collision was for the jury. The question was presented whether or not as defendant approached the wagon the roadway was so well lighted up that defendant saw or in the exercise of reasonable care could have seen the wagon in time to avoid colliding with the same, and upon that proposition the conclusion of the jury was adverse to defendant, thereby establishing that the lights of the car on the highway were equivalent to any light which if placed upon the wagon of plaintiff would have aroused the attention of defendant, and that no causal connection existed between the collision and absence of a light on the wagon.

At the close of the charge to the jury the trial justice was requested by counsel for defendant to charge ‘that the failure to have a light on plaintiff's vehicle is prima facie evidence of contributory negligence on the part of plaintiff.‘ The justice declined to charge in the language stated, but did charge that the jury might consider it on the question of negligence, but it was not in itself conclusive evidence of negligence. For the refusal to instruct the jury as requested, the judgment of the Trial Term was reversed by the Appellate Division.

The request to charge was a mere abstract proposition. Even assuming that such was the law, it would not bar a recovery by plaintiff unless such contributory negligence was the proximate and not a remote contributory cause of the injury. (Laidlaw v. Sage, 158 N. Y. 73; Rider v. Syracuse R. T. Ry. Co., 171 N. Y. 139, and cases cited.) The request to charge excluded that important requisite. The trial justice charged the jury that the burden rested upon plaintiff to establish by the greater weight of evidence that plaintiff's intestate's death was caused by the negligence of the defendant and that such negligence was the proximate cause of his death; that by ‘proximate cause‘ is meant that cause without which the injury would not have happened, otherwise she could not recover in the action. In the course of his charge the justice enlarged on the subject of contributory negligence, and in connection therewith read to the jury the provisions of the Highway Law and then charged that the jury should consider the absence of a light upon the wagon in which plaintiff and her intestate were riding and whether the absence of a light on the wagon contributed to the accident. At the request of counsel for defendant, the justice charged that, if the jury should find any negligence on the part of Mr. Martin, no matter how slight, contributed to the accident, the verdict must be for the defendant. I cannot concur that we may infer that the absence of a light on the front of the wagon was not only the cause but the proximate cause of the accident. Upon the evidence adduced upon the trial and the credence attached to the same, the fact has been determined that the accident would have been avoided had the defendant been upon his side of the road or attentive to where he was driving along a public highway, or had he been driving slowly, used his sense of sight and observed plaintiff and her intestate as he approached them, they being visible at the time. The defendant's request to charge which was granted, ‘that plaintiff must stand or fall on her claim as made, and if the jury do not find that the accident happened as substantially claimed by her and her witnesses that the verdict of the jury must be for the defendant,‘ presented the question quite succinctly. The jury found that the accident happened as claimed by the plaintiff and her witnesses and we cannot surmise or infer that the accident would not have happened had a light been located on the wagon.

In my opinion the charge of the trial justice upon the subject of proximate cause of the accident was a full and complete statement of the law of the case, especially when considered in connection with the charge that the slightest negligence on the part of the intestate contributing to the accident would require a verdict for defendant.

It would not be profitable to refer to and analyze the numerous decisions of this court upon the effect of a violation of an ordinance or a statute. A large number of cases were cited in the opinions in the Amberg case. That case was decided upon the principle that where a duty is imposed by statute and a violation of the duty causes an injury, such violation is evidence of negligence as matter of law. That proposition was clearly discussed in the Amberg case (Amberg v. Kinley, 214 N. Y. 531) as will appear by the result therein. The doctrine of causal connection therein declared was but a reiteration of the rule laid down in Willy v. Mulledy (78 N. Y, 310); Briggs v. N. Y. C. & H. R. R. R. Co. (72 N. Y. 26), and numerous other cases.

The charge requested and denied in this case was in effect that a failure to have a light upon the intestate's wagon was as matter of law such negligence on his part as to defeat the cause of action irrespective of whether or not such negligence was the proximate cause of the injury. My conclusion is that we are substituting form and phrases for substance and diverging from the rule of causal connection.

HISCOCK, Ch. J., POUND, MCLAUGHLIN, ANDREWS and ELKUS, JJ., concur with CARDOZO, J.; HOGAN, J., reads dissenting opinion.

Order affirmed.

Negligence — malpractice — trial — charge — action to recover for improper medical treatment — chiropractor claiming to possess skill requisite for diagnosis and treatment of disease may be held to skill and care which he claimed to possess — evidence sufficient to sustain finding of negligence — erroneous charge that practice of medicine in violation of law is in itself some evidence of negligence.

1. Though the defendant held himself out, and the plaintiff consulted him, as a chiropractor and not as a regular physician, where he claimed to possess the skill requisite for diagnosis and treatment of disease, in the performance of what he undertook to do, he may be held to the degree of skill and care which he claimed to possess. Where, therefore, in an action to recover for his negligence, the plaintiff gave testimony in regard to the manner in which she was treated and supplemented it by evidence that the treatment was not in accordance with recognized theory or practice, that it produced the injury which followed and that a person qualified to treat disease should have foreseen that the treatment might have such result, though her testimony was contradicted, the jury might well have resolved the conflict in her favor.

2. It was error, however, for the trial court to charge the jury that it might infer negligence, on the part of defendant, which produced injury to the plaintiff, from the fact that in treating the plaintiff, defendant was engaged in the practice of medicine contrary to and in violation of the Public Health Law of the State. In order to show that the plaintiff has been injured by defendant's breach of the statutory duty, proof must be given that defendant in such treatment did not exercise the care and skill which would have been exercised by qualified practitioners within the State, and that such lack of skill and care caused the injury. Failure to obtain a license as required by law gives rise to no remedy if it has caused no injury.

3. A contention that even if neglect of the statutory duty does not itself create liability, it tends to prove that injury was caused by lack of skill or care, cannot be sustained. Breach or neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is logical connection between the proven neglect of statutory duty and the alleged negligence. (Karpeles v. Heine, 227 N. Y. 74; People v. Meyer, 239 N. Y. 608, distinguished.) Brown v. Shyne, 214 App. Div. 755, reversed.

APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 25, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

Leo O. Coupe and James Coupe for appellant. The trial court erred in submitting to the jury the proposition that the failure of the defendant to obtain a license to practice medicine and surgery in New York was evidence that defendant negligently performed a chiropractic adjustment on the plaintiff when there was no evidence to show that it was the proximate cause of the injury complained of. (Clark v. Doolittle, 205 App. Div. 697; Knuvfle v. Knickerbocker Ice Co., 84 N. Y. 488; Weinberger v. Kratzenstein, 71 App. Div. 155; Hyde v. McCreery, 145 App. Div. 729; Silman v. Lewis, 49 N. Y. 383; Kock v. Fox, 71 App. Div. 288; Brazil v. Isham, 12 N. Y. 9; N. Y. C. Ins. Co. v. Nat. Prot. Ins. Co., 20 Barb. 486; Newell v. Salmons, 22 Barb. 647; Clark v. Post, 113 N. Y. 17; Hall v. 17. & Reflector Co., 30 Hun, 375; Antowill v. Friedman, 197 App. Div. 230; Brmvn v. Goffe, 125 N. Y. 458.)

William R. Lee for respondent. The trial court committed no error prejudicial to defendant in his charge to the jury on the proposition of the effect of his failure to possess a license to practice medicine in New York State on the question of negligence. (Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Cummings v. R. R. Co., 104 N. Y. 669; Donnelly v. Rochester, 166 N. Y. 315; Meyers v. Barrett, 167 App. Div. 170; Massoih v. D. & H. C. Co., 64 N. Y. 532; McRickard v. Flint, 114 N. Y. 222; Marino v. Lehmaier, 173 N. Y. 530; Amberg v. Kinley, 214 N. Y. 535; Beisegel v. N. Y. ?. R. R. Co., 14 Abb. Pr. [N. S.] 29; Hoffman v. U. F. Co., 47 N. Y. 176; Plate v. City of Cohoes, 89 N. Y. 219; Martin v. Herzog, 228 N. Y. 164.)

LEHMAN, J. The plaintiff employed the defendant to give chiropractic treatment to her for a disease or physical condition. The defendant had no license to practice medicine, yet he held himself out as being able to diagnose and treat disease, and under the provisions of the Public Health Law (Cons. Laws, ch. 45) he was guilty of a misdemeanor. The plaintiff became paralyzed after she had received nine treatments by the defendant. She claims, and upon this appeal we must assume, that the paralysis was caused by the treatment she received. She has recovered judgment in the sum of $10,000 for the damages caused by said injury.

The plaintiff in her complaint alleges that the injuries were caused by the defendant's negligence. If negligence on the part of the defendant caused the injury, the plaintiff may recover the consequent damages. Though the defendant held himself out, and the plaintiff consulted him, as a chiropractor and not as a regular physician, he claimed to possess the skill requisite for diagnosis and treatment of disease, and in the performance of what he undertook to do he may be held to the degree of skill and care which he claimed to possess. At the trial the plaintiff gave testimony in regard to the manner in which she was treated. She supplemented this testimony by evidence that the treatment was not in accordance with recognized theory or practice, that it produced the injury which followed and that a person qualified to treat disease should have foreseen that the treatment might have such result. Though her testimony was contradicted, the jury might well have resolved the conflict in her favor, and if the only question submitted to the jury had been whether or not this evidence showed that plaintiff's injury was caused by the defendant's negligence, the defendant could not complain of any substantial error at the trial. Indeed, it would seem that in some respects the rulings of the trial judge may have been too favorable to the defendant.

At the close of the plaintiff's case the plaintiff was permitted to amend the complaint to allege " that in so treating the plaintiff the defendant was engaged in the practice of medicine contrary to and in violation of the provisions of the Public Health Law of the State of New York in such case made and provided, he at the time of so treating plaintiff not being a duly licensed physician or surgeon of the State of New York." Thereafter the trial judge charged the jury that they might bring in a verdict in favor of the plaintiff if they found that the evidence established that the treatment given to the plaintiff was not in accordance with the standards of skill and care which prevail among those treating disease. He then continued: " This is a little different from the ordinary malpractice case, and I am going to allow you, if you think proper under the evidence in the case, to predicate negligence upon another theory. The public health laws of this State prescribe that no person shall practice medicine unless he is licensed so to do by the Board of Regents of this State and registered pursuant to statute * * *. This statute to which I have referred is a general police regulation. Its violation, and it has been violated by the defendant, is some evidence, more or less cogent, of negligence which you may consider for what it is worth, along with all the other evidence in the case. If the defendant attempted to treat the plaintiff and to adjust the vertebrae in her spine when he did not possess the requisite knowledge and skill as prescribed by the statute to know what was proper and necessary to do under the circumstances, or how to do it, even if he did know what to do, you can find him negligent." In so charging the jury that from the violation of the statute the jury might infer negligence which produced injury to the plaintiff, the trial justice in my opinion erred.

The provisions of the Public Health Law prohibiting the practice of medicine without a license granted upon proof of preliminary training and after examination intended to show adequate knowledge, are of course intended for the protection of the general public against injury which unskilled and unlearned practitioners might cause. If violation of the statute by the defendant was the proximate cause of the plaintiff's injury, then the plaintiff may recover upon proof of violation; if violation of the statute has no direct bearing on the injury, proof of the violation becomes irrelevant. For injury caused by neglect of duty imposed by the penal law there is civil remedy; but of course the injury must follow from the neglect.

Proper formulation of general standards of preliminary education and proper examination of the particular applicant should serve to raise the standards of skill and care generally possessed by members of the profession in this State; but the license to practice medicine confers no additional skill upon the practitioner; nor does it confer immunity from physical injury upon a patient if the practitioner fails to exercise care. Here, injury may have been carused by lack of skill or care; it would not have been obviated if the defendant had possessed a license yet failed to exercise the skill and care required of one practicing medicine. True, if the defendant had not practiced medicine in this State, he could not have injured the plaintiff, but the protection which the statute was intended to provide was against risk of injury by the unskilled or careless practitioner, and unless the plaintiff's injury was caused by carelessness or lack of skill, the defendant's failure to obtain a license was not connected with the injury. The plaintiff's cause of action is for negligence or malpractice. The defendant undertook to treat the plaintiff for a physical condition which seemed to require remedy. Under our law such treatment may be given only by a duly qualified practitioner who has obtained a license.

The defendant in offering to treat the plaintiff held himself out as qualified to give treatment. He must meet the professional standards of skill and care prevailing among those who do offer treatment lawfully. If injury follows through failure to meet those standards, the plaintiff may recover. The provisions of the Public Health Law may result in the exclusion from practice of some who are unqualified. Even a skilled and learned practitioner who is not licensed commits an offense against the State; but against such practitioners the statute was not intended to protect, for no protection was needed, and neglect to obtain a license results in no injury to the patient and, therefore, no private wrong. The purpose of the statute is to protect the public against unfounded assumption of skill by one who undertakes to prescribe or treat for disease. In order to show that the plaintiff has been injured by defendant's breach of the statutory duty, proof must be given that defendant in such treatment did not exercise the care and skill which would have been exercised by qualified practitioners within the State, and that such lack of skill and care caused the injury. Failure to obtain a license as required by law gives rise to no remedy if it has caused no injury. No case has been cited where neglect of a statutory duty has given rise to private cause of action where it has not appeared that private injury has been caused by danger against which the statute was intended to afford protection, and which obedience to the statute would have obviated. It is said that in the case of Karpeles v. Heine (227 N. Y. 74) this court held that liability per se arises from breach of the statute which prohibits employment of a child under sixteen years of age, but in that case this court merely decided that the statute was intended to protect the child against danger arising from its own lack of foresight in the course of such employment, and that, therefore, an action against the employer by a child unlawfully employed "for injuries arising in the course of such employment and as the proximate result thereof cannot be defeated by his contributory negligence." In that case the court was considering the legal effect of the proven negligence of the child who was unlawfully employed; only upon proof in the present case of negl'-gence on the part of the chiropractor would any analogy be apparent.

It is said that the trial justice did not charge that plaintiff might recover for defendant's failure to obtain a license but only that failure to obtain a license might be considered " some evidence " of defendant's negligence. Argument is made that even if neglect of the statutory duty does not itself create liability, it tends to prove that injury was caused by lack of skill or care. That can be true only if logical inference may be drawn from defendant's failure to obtain or perhaps seek a license that he not only lacks the skill and learning which would enable him to diagnose and treat disease generally, but also that he lacks even the skill and learning necessary for the physical manipulation he gave to this plaintiff. Evidence of defendant's training, learning and skill and the method he used in giving the treatment was produced at the trial and upon such evidence the jury could base finding either of care or negligence, but the absence of a license does not seem to strengthen inference that might be drawn from such evidence, and a fortiori would not alone be a basis for such inference. Breach or neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is logical connection between the proven neglect of statutory duty and the alleged negligence.

Our decision in the case of People v. Meyer (239 N. Y. 608) is not in conflict with these views. The defendant there was charged with causing death by " culpable negligence." Negligence was shown by independent evidence, but the charge of manslaughter could be sustained only if the defendant's negligence reached beyond the bounds of lack of skill and foresight where civil liability begins to a point where criminal liability is imposed because the negligence is not merely venal but is " culpable," involving fault for which the State may demand punishment. We held that the circumstance that the defendant practiced medicine without those qualifications which the law demands as a prerequisite to practice was relevant and material upon the question whether the defendant's proven negligence was venal or culpable. We did not hold that the absence of license tended to prove negligence itself.

For these reasons the judgments should be reversed and a new trial granted, with costs to abide the event.

CRANE, J. (dissenting). The defendant is a chiropractic practitioner in Utica, N. Y. The plaintiff, a woman about forty-six years of age, in March of 1923, was his patient. Through treatment received, the plaintiff claims to have become paralyzed, and has brought this action to recover damages. A judgment in her favor has been unanimously affirmed by the Appellate Division, which, however, granted leave to the defendant to come to this court, certifying that in its opinion a question of law was involved which we should review. At the time mentioned, Miss Brown had been suffering from laryngitis, and went to the defendant's, Dr. Shyne's office for treatment. She went there nine times. It was the last treatment that was injurious.

The theory of the chiropractics is that most, if not all, diseases come from pressure on the nerves caused by vertebra deviating from the normal. The treatment consists in restoring the vertebra which is out of alignment to its proper place to relieve the pressure. This is done by palpitating the spinous processes and pushing or manipulating the vertebrae into place. The chiropractic claims to be able to treat and cure many diseases in this way. One of the defendant's chief experts in this case stated that the treatment consists entirely of adjusting the vertebrae which are found out of alignment to normal position. In this way, he stated, cancer of the stomach and liver can be cured, tuberculosis, smallpox, diphtheria, scarlet fever, diabetes and heart disease. The chiropractic does not believe in the germ theory of disease.

We readily see, therefore, that the chiropractic doctor holds himself out to treat and cure sickness and disease by the readjustment of the spinal column and the proper alignment of the vertebrae.

This was the kind of treatment that the defendant was giving the plaintiff; and the theory accords with the practice, according to the plaintiff's testimony. She says of the ninth treatment, which was the same as the others, but a little harsher:- " I lay down on the couch, face downward, and the support was removed from under my abdomen, and he began working on the spine, and from the neck, way down to the waist and back again. He pressed very hard, so that it made me flinch, especially up through the shoulders. One spot was hurt especially bad. It seemed as if it was his thumbs that he was pressing down hard, and that it hurt, it made me flinch. And then he took a hold of my head, both sides of my head, and gave it a very violent turn, twist one way and then back, which gave a very bad snap, more noticeable than any of the other treatments. And it hurt."

" Q. Where was the pain located that you experienced? A. Right from the base of the neck or head, down, midway down the back."

" Q. Had you ever experienced any pain up to that time, in your spinal column before? A. No, sir."

The plaintiff left the doctor's office, returned to her home, and immediately thereafter her arms and limbs became numb and powerless; she was confined to her bed for a period of fifteen weeks, under the care of nurses; was obliged to wear a brace, and has been partially paralyzed ever since.

The Public Health Law (sect. 161) enacts:

" No person shall practice medicine, * * * unless licensed by the regents and registered as required by this article."

The practice of medicine is defined by section 160 as follows :

" A person practices medicine within the meaning of this article, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition."

By section 174 any person who, not being then lawfully authorized to practice medicine within this State, and so registered, according to law, shall practice medicine in violation of the article, shall be guilty of a misdemeanor.

The defendant was violating this law. He was practicing medicine in this State without a license. He was guilty of a misdemeanor. (People v. Ellis, 162 App. Div. 288; People v. Mulford, 140 App. Div. 716; People v. Meyer, 209 App. Div. 908, affd., 239 N. Y. 608.)

The plaintiff's complaint, as amended on the trial, alleged the negligence of the defendant, and his violation of the Public Health Law. The defendant upon the trial and his witnesses testified that his treatment of vertebras alignment was according to the established practice and methods of chiropractors, and that by such treatment it was impossible to cause the plaintiff's injuries. There was some evidence to show that the defendant may have been unusually severe and harsh.

The charge of the court to the jury treated the case as one in negligence, and stated the law as applicable to duly licensed physicians, that is, that they were bound to exercise that degree of care and skill generally possessed by members of the profession in the locality where the doctor practiced. The defendant's negligence, he stated, would consist in failing to meet this standard. He further stated to the jury the above requirements of the Public Health Law, and charged: "Its violation, and it has been violated by the defendant, is some evidence, more or less cogent, of negligence which you may consider for what it is worth, along with all the other evidence in the case. If the defendant attempted to treat the plaintiff, and to adjust the vertebras in her spine, when he did not possess the requisite knowledge and skill as prescribed by the statute to know what was proper and necessary to do under the circumstances, or how to do it, even if he did know what to do, you can find him negligent."

This is the part of the charge which *is now challenged as being error, requiring a reversal of the judgment. The point is presented that the violation of the Public Health Law by the defendant, and his practicing medicine without a license, had nothing to do with this case; was not competent evidence; and should not have been considered by the jury as some evidence of negligence. With this view I do not agree.

The judge fully and completely charged the jury that the defendant was not liable for any of the plaintiff's injuries unless they were the direct and proximate cause of his acts. The evidence was abundant to prove that the plaintiff's paralysis and injuries resulted from the defendant's manipulation and treatment of her back, neck and head. The jury were justified in finding that whatever he did, whether it were proper or improper, resulted in the plaintiff's painful condition. We start, therefore, the consideration of this point with the fact that the defendant's acts were the direct and proximate cause of the injury. The next question arises as to whether or not the acts were negligent.

As I have stated, the judge charged the jury as if this were the ordinary malpractice case, furnishing for the defendant a standard of the legally authorized physician. It is difficult for me personally to follow this reasoning and the logic of the situation. I think this rule all too liberal to the defendant. What he did was prohibited by law. He could not practice medicine without violating the law. The law did not recognize him as a physician. How can the courts treat him as such? Provided his act, in violation of the law, is the direct and proximate cause of injury, in my judgment he is liable, irrespective of negligence. It seems somewhat strange that the courts, one branch of the law, can hold up for such a man the standards of the licensed physician, while the Legislature, another branch of the law, declares that he cannot practice at all as a physician. The courts thus afford the protection which the Legislature denies.

The judge in this case, however, did not go this far. He charged for the defendant's benefit the ordinary rules of negligence in malpractice cases, and then stated that the violation of the Public Health Law was some evidence of negligence, leaving the whole question to the jury. It is this much milder form of ruling which is challenged. The defendant must be treated, so the appellant claims, as if he were a duly licensed physician, and in this action for damages, resulting from his act, he is only liable if a duly licensed physician would have been liable. Such is the effect of excluding evidence of the defendant's practicing medicine without a license. If it were competent to prove that he were practicing medicine without a license, the corollary must be true, that such evidence may be considered by the jury as bearing upon the question of his negligence.

What is the rule which is to guide us in determining whether a violation of a statute or ordinance is evidence of negligence? It is no answer to say that the statute provides a penalty, and, therefore, no other consequences can follow. Such is not the law. We are to determine it, as I read the authorities, from the purpose and object of the law, and also from the fact whether a violation of the law may be the direct and proximate cause of an injury to an individual. As was said in Bourne v. Whitman (209 Mass. 155, 166): " It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator, as to all consequences that the statute was intended to prevent. * * * A criminal statute in the usual form is enacted for the benefit of the public. It creates a duty to the public. Every member of the public is covered by the protecting influence of the obligation. If one suffers injury as an individual, in his person or his property, by a neglect of this duty, he has a remedy, not because our general criminal laws are divided in their operation, creating one duty to the public and a separate duty to individuals; but because as one of the public in a peculiar situation, he .suffers a special injury, different in kind from that of the public generally, from the neglect of the public duty."

The prohibition against practicing medicine without a license was for the very purpose of protecting the public from just what happened in this case. The violation of this statute has been the direct and proximate cause of the injury. The courts will not determine in face of this statute whether a faith healer, a patent medicine man, a chiropractor, or any other class of practitioner acted according to the standards of his own school, or according to the standards of a duly licensed physician. The law, to insure against ignorance and carelessness, has laid down a rule to be followed, namely, examinations to test qualifications, and a license to practice. If a man, in violation of this statute, takes his chances in trying to cure disease, and his acts result directly in injury, he should not complain if the law, in a suit for damages, says that his violation of the statute is some evidence of his incapacity.

At this point the appellant cites those cases dealing with the failure of chauffeurs to have a license. The principal case is Clark v. Doolittle (205 App. Div. 697). There are a number of other cases upon his brief, all of which I have examined. It was the claim in these cases that the failure to have a license to run a car absolutely prevented all recovery by the driver for injuries received, although the lack of the license had nothing whatever to do with the defendant's negligence. It is self-evident that the violation of a statute must have something to do with the case; that it must in some way bear upon proximate cause. Even in the Doolittle case it was said: " The fact that the driver was at the time engaged in a violation of some law may have had an important bearing upon plaintiff's right to recover. It may be evidence against him * * * and if the fault lay in such violation may prevent recovery." All the case decided was that such violation was not an absolute bar.

But to proceed with the main discussion. The Public Health Law was intended to guard individual members of the public from the injuries which might result from resorting to unexamined practitioners. The violation of the law in this case has brought about the very thing which the Legislature has tried to prevent. In Dent v. West Virginia (129 U. S. 114, 122) the United States Supreme Court said regarding these Public Health Laws:

" Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society may well induce the State to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified."

These words seem quite appropriate to our present Public Health Law. The defendant held himself out as a doctor, able to cure laryngitis. He had an office where his name appeared, as though he were a duly licensed physician. The plaintiff could not tell whether or not the doctor was licensed according to the Health Law; she was not obliged to look up the records before going to him; nor was she expected to understand all the requirements of the Regents. She was one of that public which the law sought to protect by declaring that the so-called doctor was forbidden to do the very thing he did do, and which resulted in injury. Proximate cause in connection with the violation of a city ordinance was before the court in Monroe v. Hartford Street Ry. Co. (76 Conn. 201). The court said: " It is apparent that the illegal act was not necessarily a mere independent concomitant or condition of the collision, but might well be a contributing cause, and might be, according as the jury should find the attendant or surrounding circumstances, a proximate cause of the injury. ' Cause' and ' consequence' are correlative terms. One implies the other. When an event is followed in natural sequence by a result it is adapted to produce, or aid in producing, that result is a consequence of the event, and the event is the cause of the result."

In recent times the difficulty with these statutes in the courts has been to determine whether the violation was negligence per se, or only some evidence of negligence. I have not been able to find any case where the violation of a statute or an ordinance was not at least some evidence of negligence, where the violation was the direct and proximate cause of the injury, that is, that the act done resulting in injury, was prohibited, and the aim and purpose of the statute or ordinance was to prevent such injuries by such prohibition. In Willy v. Mulledy (78 N. Y. 310) the charter of the city of Brooklyn imposed a duty upon the owners of tenement houses to have fire escapes thereon. It was said that where a statute imposes a duty upon a citizen, any person having a special interest in the performance thereof may sue for a breach causing him injury. In Massoth v. Delaware & Hudson Canal Co. (64 N. Y. 524) the violation of a city ordinance regulating the speed of trains through the city was taken as some evidence of negligence.

A statute of Colorado required the operators of coal mines to fence the ground around their slack coal so as to prevent loose cattle or horses from having access to such slack pile. A child strayed on an unfenced slack pile, and the owner was held liable. (Union Pacific Railway Co. v. McDonald, 152 U. S. 262.) The court said: " Primarily, that statute was intended for the protection of cattle and horses. But it was not, for that reason, wholly inapplicable to the present case upon the issue as to negligence. * * * ' The duty is due, not to the city as a municipal body, but to the public, considered as composed of individual persons; and each person specially, injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery.' The nonperformance by the railroad company of the duty imposed by statute, of putting a fence around its slack pit, was a breach of its duty to the public, and, therefore, evidence of negligence, for which it was liable in this case, if the injuries in question were, in a substantial sense, the result of such violation of duty."

The same thing holds true here. The defendant was under an obligation, a command, a duty, not to practice medicine. By failing to heed this command and duty plaintiff received injury. The statute and his breach is at least some evidence of negligence. To the same effect we have Fluker v. Ziegele Brewing Co. (201 N. Y. 40); McRickard v. Flint (114 N. Y. 222).

In his dissenting opinion in Marino v. Lehmaier (173 N. Y. 530, 540) Judge O'BRIEN mentions a number of violations of statutes and ordinances which would not be considered evidence of negligence in the particular case for the reason that the violation of such ordinance or statute did not constitute the proximate cause of the accident, that is, was in no way the cause of it. Quoting from Thompson on Negligence, he gives the rule to be applied, as follows: " And it may be stated as a general proposition, though there may be difficulty in some cases in applying it, that the violation of a statute or municipal ordinance is not of itself a cause of action grounded upon negligence in favor of an individual unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claiming the damages and often not then, the question depending upon judicial theories and surmises." The Public Health Law was designed to prevent such injuries as were suffered by the plaintiff in this case, through the illegal practice of medicine. Judge O'BRIEN cites the instances of taking fish out o? season, of smuggling, as not preventing a recovery for injury inflicted upon the violator. Within this category may be placed the instance of a person injured through negligence while violating the Sunday Law. (Platz v. City of Cohoes, 89 N. Y. 219.) Likewise, the failure to register an automobile was in no way the cause of an accident, and did not prevent recovery for another's negligence. (Hyde v. McCreery, 145 App. Div. 729.)

We now come to three cases holding that the violation of statutes created negligence per se. Amberg v. Kinley (214 N. Y. 531) related to the Labor Law (Cons. Laws, ch. 31), which required fire-escapes on factory buildings. The action was for death caused in a fire, where the factory had no such fire-escapes. This court said: "In a suit upon a cause of action thus given by statute, it is not necessary for the plaintiff to prove negligence on the part of the defendant, because the failure to observe the statute creates a liability per se, or, as is otherwise and with less accuracy sometimes said, is conclusive evidence of negligence. * * * Whether a statute gives a cause of action to a person injured by its violation, or whether it is intended as a general police regulation, and the violation made punishable solely as a public offense ' must to a great extent depend on the purview of the Legislature in the particular statute and the language which they have there employed.' "

In my judgment there can be no doubt as to the intent of the Legislature in passing the Public Health Law as herein stated by me. It was to prevent injury to people from ignorant and incompetent practitioners, unqualified men. No one can practice unless examined and licensed. That the danger was one to be guarded against; that such legislation was necessary, is apparent in this case.

Karpeles v. Heine (227 N. Y. 74) also related to the Labor Law, which provided that no child under sixteen years should operate a freight or passenger elevator. Here was a prohibition disqualifying certain persons from doing an act, in the same way that the Public Health Law disqualifies unlicensed persons from practicing medicine. This court held the case one of liability per se, following Amberg v. Kinley (supra).

Martin v. Herzog (228 N. Y. 164) related to the Highway Law (Cons. Laws, ch. 25) requiring lights on wagons after sundown. We held that the unexcused omission of the statutory signals was more than some evidence of negligence; it was negligence itself.

In view of these authorities, I am convinced that the plaintiff in this case was a part of that public for whose benefit the Public Health Law in this particular was passed. It was to prevent injury to such as she that the Legislature forbade the unlicensed practice of medicine. The plaintiff was injured through the defendant's disobedience of the law. He was treating her for laryngitis by pushing her vertebra. In pushing her vertebra and twisting her head, that is, by doing the very thing the law said he must not do, he caused paralysis. Thus by these authorities, the plaintiff could prove in connection with his acts that he was practicing medicine without a license, and such violation was, to say the least, some evidence of negligence. This is as far as the trial judge went in charging the jury. Personally, I am of the opinion that where an injury is the direct and proximate result of practicing medicine without a license, a recovery can be had, as for an act negligent per se; but we do not need to go so far in this case.

Could the defendant in this case have sued the plaintiff for his services, and recovered? Clearly he could not have maintained such an action. (Steed v. Henley, 1 Carr. & P. 574; Allison v. Haydon, 4 Bing. [C. P.] 619; Acceita v. Zupa, 54 App. Div. 33, 35.) " We cannot permit a recovery of compensation for doing an act which this statute declares to be a misdemeanor."

We have recently had a case in this court where these principles have been applied (People v. Meyer, 209 App. Div. 908; affd., 239 N. Y. 608). The defendant was there prosecuted for manslaughter, in causing the death of a child about five years of age, through his culpable neglect. The defendant was a chiropractor, and he sought to treat the child for diphtheria. The treatment was the same as given Miss Brown in this case — that is, by the manipulation of the spinal cord. The child died. The defendant was not a licensed physician.

If the defendant was to be measured simply by the standard of licensed physicians, or of his own school, the Public Health Law had nothing to do with the case. Negligence is negligence (the same in civil as in criminal proceedings), and culpable negligence is merely accentuated negligence. The defendant's negligence had to be proved. The prosecution did not rest with merely showing that the defendant was neglectful from the licensed physician's standpoint. The People proved his acts and omissions, and also the fact that the Public Health Law had been violated, that is, that the defendant was illegally practicing medicine. The judge made this an important part of his charge, for he read to the jury section 160 of the Public Health Law, and said: " I charge you, gentlemen, that the practice of chiropractic is practicing medicine under this law as I have read it to you." He then read section 161 of the Public Health Law, and continued as follows: " Now, gentlemen, the charge in this case is not that the defendant violated the provisions of this law. I want that clearly in your minds. It is not brought on that theory. The defendant is not brought into court and is not on trial now for practicing in violation of this statute, for which another penalty is prescribed. That is an entirely separate and distinct offence. The charge in this case is culpable negligence, under the law as I have read it to you; and in connection with that and in reaching your conclusions and coming to your decision you may consider this law that I have just read to you. * * * So, as I have charged you, if the act is in violation of a statute intended and designed to prevent injury to the person and is in itself dangerous — that is, the act itself — and is liable to result in death by reason of omission or commission, and death ensues, then the person may be guilty of culpable negligence."

We affirmed the conviction in that case. The jury were authorized to consider the violation of the statute as bearing upon the question of negligence. In this case we also have the question of negligence, and as bearing upon it the judge permitted the jury to consider together with all the other facts the practice of medicine without a license.

The ruling was correct, and the judgments below should be affirmed, with costs.

HISCOCK, Ch. J., POUND and ANDREWS, JJ., concur with LEHMAN, J.; CRANE, J., writes dissenting opinion, in which MCLAUGHLIN, J., concurs; CARDOZO, J., absent.

Judgments reversed, etc.

Sweeney, Kane and Casey, JJ., concur. Mahoney, P. J., and Weiss, J., concur in the following memorandum by Mahoney, P. J.

On August 9, 1978, defendant Mary Jane Gerstheimer, a stenographer employed by the Letchworth Village Developmental Center, drove an automobile owned by her husband, defendant George F. Gerstheimer, to a pharmacy located on the grounds of the Middletown Psychiatric Center. After parking the automobile in front of the pharmacy, she left it unattended with the keys in the ignition. Moments later, Stephen E. Rushink, a resident patient at the facility, drove away in the vehicle and met his death soon thereafter when it left the road and struck a tree. After issue was joined, plaintiff moved at Special Term for summary judgment contending that there were no triable issues of fact since defendant Mary Jane Gerstheimer violated subdivision (a) of section 1210 of the Vehicle and Traffic Law and that the violation of the statute was the proximate cause of the occurrence. Defendants opposed the motion arguing that subdivision (a) of section 1210 of the Vehicle and Traffic Law is not applicable to the instant case and, assuming it was, that the alleged violation was not the proximate cause of plaintiff's decedent's accident. Defendants also moved for summary judgment to dismiss the complaint. Special Term denied both motions and these appeals ensued. Subdivision (a) of section 1210, which prohibits a person in charge of a vehicle from leaving it unattended without removing or hiding the key, was enacted to deter theft and injury from the operation of motor 945*945 vehicles by unauthorized persons (see Banellis v Yackel, 69 AD2d 1013, affd 49 N.Y.2d 882; 8 NY Jur 2d, Automobiles, § 628, p 281). In our view, however, its provisions were plainly not designed to protect such unauthorized users from the consequences of their own actions (cf. Imerson v Benway, 12 AD2d 694). That plaintiff's decedent may not have been capable of forming a larcenous intent is irrelevant to our conclusion that he could not have been within the class of persons the enactment was meant to protect. Of course, redress for wrongs suffered by one under a legal disability may be pursued in a common-law negligence action wholly apart from statutory considerations. The instant complaint is sufficient to support such a cause of action and, since there are obvious factual issues to be resolved in determining defendants' liability, if any, the motions for summary judgment were properly denied.

Order affirmed, without costs.

Mahoney, P. J. (concurring).

While we concur in the majority's holding that the order denying both plaintiff's and defendants' motions for summary judgment must be affirmed, we cannot accept the view that subdivision (a) of section 1210 of the Vehicle and Traffic Law does not create a class of persons entitled to be protected by the statute, and, further, that plaintiff's decedent is not among its membership. In recommending the enactment of section 1210, the Joint Legislative Committee on Motor Vehicle Problems stated that the proposed law was "designed to obviate the risk of a vehicle moving from the place where it was left parked and possibly injuring the person or property of others as well as itself being damaged. It serves to lessen the likelihood of theft" (NY Legis Doc, 1954, No. 36, pp 106-107). Since at common law the owner was not liable, as a matter of law, for the negligence of a thief, on the basis that the use of the car by the thief intervened between the occurrence of the negligence of the owner and the unskillful operation of the car by the thief (Walter v Bond, 267 App Div 779, affd 292 N.Y. 574; Mann v Parshall, 229 App Div 366), the statute changed the common law and made it clear that the intervention of an unauthorized person no longer operates to break the chain of causation. Where, as here, the legislative intent to protect the public generally from the consequences that foreseeably flow from unauthorized use of motor vehicles is clear, and, again as here, the violation of subdivision (a) of section 1210 is undisputed, it is patently unfair to deny to plaintiff the evidentiary weight of such violation and leave him to the more vigorous burden of establishing common-law negligence.

[1899] COUNSEL

Morris, Polich & Purdy, Robert S. Wolfe, Douglas J. Collodel and Kathleen A. Kelleher for Defendant and Appellant.

Davis & Thomas, Joseph Daniel Davis and Charlotte E. Costan for Plaintiff and Respondent.

[Opinion certified for partial publication.^[1]]

OPINION

EPSTEIN, J.

Southern Pacific Transportation Co. has appealed from a judgment against it in favor of respondent Panfilo Lua. (1) (See fn. 1.) The dispute between the parties arises out of the injuries Mr. Lua sustained when he tried to climb over appellant's train, which was stopped and blocking a public grade crossing.^[2] The case was tried to a jury, which found for the plaintiff and awarded damages in the amount of $309,400.

Southern Pacific contends that the trial court erred in instructing the jury that a violation of General Order No. 135 of the Public Utilities Commission (P.U.C.) (see 77 Cal.P.U.C. at p. 323), which regulates the length of time a stopped train may block a public grade crossing, constitutes negligence per se. The railroad also contends that the judgment should be reversed due to the misconduct of plaintiff's counsel. Finally, Southern Pacific asks us to reconsider and overrule the decision of another division of this district [1900] following an earlier appeal in this case, and on that basis direct the entry of judgment in its favor.

Because we agree with Southern Pacific's first contention and reverse on that ground, we need not reach its contentions regarding attorney misconduct. We decline to depart from established precedent regarding the law of the case and revisit the issues resolved in the earlier appeal.

FACTUAL AND PROCEDURAL SUMMARY

On September 28, 1977, the date of the incident, Panfilo Lua was an unemployed farm worker. He had traveled from Merced to Los Angeles looking for work. Having heard that a cannery was hiring, he took a bus to the vicinity of the cannery and began to walk the remaining blocks, intending to arrive before 8 p.m. It was getting dark by the time he got off the bus.

Plaintiff walked to the railroad tracks at the intersection of San Pablo Avenue and Valley Boulevard. He was unable to cross because the intersection was blocked by a stationary train. The traffic control crossing arms were up, and plaintiff saw no flashing lights and heard no bells. Plaintiff did not know how to use a watch and could not tell time, but he estimated at trial that he waited for 10 or 15 minutes before he climbed onto the train in an attempt to cross. As he put his foot on a coupler the train began to move. Plaintiff's injury resulted.

Plaintiff filed his complaint in August of 1978, and the matter was tried to a jury in July of 1983. The jury found that the defendant was negligent and the plaintiff contributorily negligent. Damages were assessed at $350,000. Ninety percent of the fault was apportioned to Southern Pacific and 10 percent to the plaintiff. An appeal (B007114) from the judgment was heard by Division One of this court. In an unpublished opinion issued in August 1985, that division reversed the judgment and remanded the matter for a new trial on all issues.^[3]

The case was retried in June of 1988. This appeal follows.

[1901] DISCUSSION

I

As pertinent here, P.U.C. General Order No. 135^[4] provides: "1.... . Except as provided in Paragraph 5, a public grade crossing which is blocked by a stopped train, other than a passenger train, must be opened within 10 minutes, unless no vehicle or pedestrian is waiting at the crossing. Such a cleared crossing must be left open until it is known that the train is ready to depart. When recoupling such a train at the crossing, movement must be made promptly, consistent with safety. [¶] 2.... . Switching over public grade crossings should be avoided whenever reasonably possible. If not reasonably possible, such crossings must be cleared frequently to allow a vehicle or pedestrian to pass and must not be occupied continuously for longer than 10 minutes unless no vehicle or pedestrian is waiting at the crossing." (Dec. No. 83446, Case No. 8949, supra, 77 Cal. P.U.C. at pp. 323-324.)

The trial court instructed the jury that "The Public Utilities Commission of the State of California has ordered that each railroad corporation operating in the State of California shall observe the following regulations in conducting operations on and across public grade crossings." The instruction went on to quote the subsections of Order No. 135 recited above. The court further instructed that "If you find that the defendant to this action violated the Public Utilities Commission Order just read to you and that such violation was a legal cause of injury to another, you will find that such violation was negligence."

(2) Evidence Code section 669 codifies the doctrine of negligence per se based on violation of a statute or regulation. (See Capolungo v. Bondi (1986) 179 Cal. App.3d 346, 349 [224 Cal. Rptr. 326].) The section provides, in pertinent part, "(a) The failure of a person to exercise due care is presumed if: [¶] (1) [A person] violated a ... regulation of a public entity; [¶] (2) The violation proximately caused ... injury ...; [¶] (3) The ... injury resulted from an occurrence of the nature which the ... regulation was designed to prevent; and [¶] (4) The person suffering the ... injury ... was one of the class of persons for whose protection the ... regulation was adopted." (Evid. Code, § 669.)

In order for a claim of negligence per se to succeed, all four elements must be shown. The first two are matters for the trier of fact; the second two are [1902] to be determined by the court as a matter of law. (Capolungo v. Bondi, supra, 179 Cal. App.3d at pp. 349-350.)

(3) We find that plaintiff's injury did not result from an occurrence the regulation was designed to prevent.

Respondent has cited several cases for the proposition that the California rule is that violation of a regulation limiting the time which a railroad may block a grade crossing is negligence per se. None is persuasive authority. One of them, Hofstadt v. Southern Pac. Co. (1931) 1 P.2d 470, was decertified for publication and is not citable as precedent. A second case, Hanlon D. & S. Co. v. Southern Pac. Co. (1928) 92 Cal. App. 230 [268 P. 385], involved an injury caused when a stopped train delayed fire trucks responding to an alarm. The final California case cited on this point, Matoza v. Southern Pacific Co. (1922) 59 Cal. App. 636 [211 P. 252], also concerned injury caused by delay, and did not involve a statute or ordinance, nor an issue of negligence per se.

Both parties argue by analogy to California cases reviewing a variety of statues and ordinances. We find none of those analogies enlightening, and turn instead, as those courts did, to the history of the regulation we are reviewing. (See Capolungo v. Bondi, supra, 179 Cal. App.3d at pp. 350-352.)

Prior to promulgating General Order No. 135, the P.U.C. heard from interested parties and solicited written comments. In findings of fact resulting from that process, the P.U.C. found that "1. The blocking of public grade crossings interferes with the freedom of access of the public using the streets and highways and can result in substantial traffic problems for the public agencies responsible for the control of traffic upon such streets and highways. [¶] 2. Public convenience and necessity require regulations which will require the clearing of crossings so as to result in the minimum delay to the public.... [¶] 4. The occupancy and blocking of public grade crossings by railroads and the clearing of such crossings by railroads necessarily involve the safety of railroad operations...." (Dec. No. 83446, Case No. 8949, supra, 77 Cal. P.U.C. at p. 322.)

These findings are addressed to the free flow of traffic and the harm which might be caused by delay. And, since section 5 of the order allows longer delays for a variety of reasons without requiring special precautions for the [1903] safety of those blocked by the train, it is apparent that the safety of passersby is not addressed by this order.^[5]

The weight of other authority is in accord with this conclusion. "Statutes which limit the time during which railway trains may obstruct crossings usually are held to be intended to prevent delays of traffic, and so may give rise to an action for damages resulting from such delay, but afford no protection against personal injuries caused by the position of the train." (Prosser & Keeton, Torts (5th ed. 1984) § 36, p. 225.)

In Fox v. Illinois Cent. R. Co. (1941) 308 Ill. App. 367 [31 N.E.2d 805, 808-809], the Illinois Appellate Court held that the purpose of a statue prohibiting trains from remaining on the tracks for longer than 10 minutes was the prevention of traffic delay, and that it was not enacted to protect drivers from damage caused by collision with a stopped railroad car. (See also Dunn v. Baltimore & Ohio R. Co. (1989) 127 Ill.2d 350 [130 Ill.Dec. 409, 537 N.E.2d 738, 746-747] [similar].)

Peigh v. Baltimore & O.R. Co. (D.C. Cir.1953) 204 F.2d 391, 394 [92 App.D.C. 198, 44 A.L.R.2d 671], is to the same effect. In that case, the court concluded that a regulation similar to the one at issue here was intended to expedite traffic and encourage commerce, and was not directed at the safety of drivers.

The cases cited by respondent to the contrary are not on point. They establish, at best, that in some jurisdictions a railroad may have a duty to signal, with lights or otherwise, before a stopped train begins to move. (See, e.g., Dodwell v. Missouri Pacific Railroad Company (Mo. 1964) 384 S.W.2d 643 [11 A.L.R.3d 1156]; Walker v. Southern Ry., Carolina Division (1907) 77 S.C. 161 [57 S.E. 764], Texas & N.O.R. Co. v. Owens (Tex. Ct. App. 1932) 54 S.W.2d 848.)

The California decisions agree that the per se effect of a statute is limited to the conduct the statute or regulation was designed to prevent. (See, e.g., Mark v. Pacific Gas & Electric Co. (1972) 7 Cal.3d 170, 183 [101 Cal. Rptr. 908, 496 P.2d 1276] [ordinance prohibiting persons from extinguishing street lights not designed to prevent death by electrocution]; Atkins v. Bisigier (1971) 16 Cal. App.3d 414, 422 [94 Cal. Rptr. 49] [regulations requiring deep [1904] end of swimming pool to be marked designed to prevent drowning accidents, not diving accidents]. See also Prosser & Keeton, Torts, supra, § 36, p. 222, "... courts ... have been careful not to exceed the purpose which they attribute to the legislature.")

It follows that P.U.C. Order No. 135 is not a basis for per se liability of the railroad to a pedestrian who chooses to climb on a train that is stopped at an intersection. The trial court erred in instructing that it was. It remains for us to consider whether this error is prejudicial.

II

(4) "Generally speaking, if it appears that error in giving an improper instruction was likely to mislead the jury and thus to become a factor in its verdict, it is prejudicial and 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.]" (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670 [117 Cal. Rptr. 1, 527 P.2d 353], internal quotation marks omitted; Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 767 [206 Cal. Rptr. 354, 686 P.2d 1158].)

Other theories of liability were presented at the trial, but it is apparent from a review of the record that this instruction probably misled the jury. A negligence per se instruction is strong medicine, designed to have an impact on the jury. Respondent relied heavily on the instruction in argument, a factor we consider in measuring the prejudicial effect of a jury instruction. (See Seaman's Direct Buying Service, Inc. v. Standard Oil Co., supra, 36 Cal.3d at p. 771.) Counsel used a blowup of the instruction, referred to it as a "key instruction," and told the jurors that if they found that the defendant had blocked the intersection for more than 10 minutes "Mr. Lua is entitled to your verdict."

Since the jury returned a general verdict, we cannot determine the exact basis of its decision, but it is unlikely that the jury ignored the instruction and more than probable that the verdict was based on the erroneous instruction. For that reason, the judgment must be reversed.

(5) Respondent argues that by failing to object to the instruction Southern Pacific waived its right to assert instructional error on appeal. This argument also fails. Instructions are deemed excepted to, and the claim of error was thus preserved. (Code Civ. Proc., § 647, Enis v. Specialty Auto [1905] Sales (1978) 83 Cal. App.3d 928, 940 [148 Cal. Rptr. 255].) Gamboa v. Atchison, Topeka & Santa Fe Ry. Co. (1971) 20 Cal. App.3d 61 [97 Cal. Rptr. 471], cited by respondent for a rule to the contrary, is based on federal practice, and has no application here.^[6]

III-IV^[7]

.... .... .... .... .... .... .... .

CONCLUSION

The accident that gave rise to this litigation occurred in September 1977, and the lawsuit commenced in August of the following year. Now, almost 15 years after the accident, we must reverse the case for a third trial. Given the gravity of the error, we have no other course. Hopefully, this case will soon proceed to a final resolution.

DISPOSITION

The judgment is reversed and remanded for a new trial on all issues. Each party to bear its own costs on appeal.

Woods (A.M.), P.J., and Stephens, J.,^[8] concurred.

[1] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts III and IV.

[2] A "grade crossing" is "[a] place where a railroad is crossed at grade by a public or private road." (See Black's Law Dict. (5th ed. 1979) p. 628, col. 1.)

[3] We take judicial notice of that decision, and base this portion of the statement of facts on matters contained therein. (See Evid. Code, § 452.)

[4] We have notified the parties of an intention to take judicial notice of all matters contained in Decision No. 83446, Case No. 8949 (1974) 77 Cal. P.U.C. 320. Having done so, and having invited and received their comments, we now take judicial notice of this decision. (See Evid. Code, § 455, subd. (a).)

[5] Appellant additionally argues that the instruction was erroneous because it did not include the provisions of section 5, noted above, and therefore did not ask the jury to find as a basic fact that the delay was not one which was permitted. Respondent argues that it was the appellant's burden to produce evidence on this point, as a rebuttal to the Evidence Code section 669 presumption. We need not and do not decide that issue, since we conclude that the regulation does not inure to the benefit of individuals in respondent's position.

[6] Respondent also cited Wilkinson v. Bay Shore Lumber Co. (1986) 182 Cal. App.3d 594, 599 [227 Cal. Rptr. 327, 61 A.L.R.4th 111], for the proposition that failure to object to an instruction relieves an appellate court of the obligation to review any claimed error. Wilkinson cites Gamboa for this proposition, but fails to note that Gamboa was applying federal rules. Further, the statement was dictum since the court assumed for purposes of its discussion that an objection had been raised.

[7] See footnote, ante, page 1897.

[8] Retired Associate Justice of the Court of Appeal, Second District, sitting under assignment by the Chairperson of the Judicial Council.

159 Eng. Rep. 299

BYRNE

v.

BOADLE.

Nov. 25, 1863

The plaintiff was walking in a public street past the defendant's shop when a barrel of flour fell upon him from a window above the shop, and seriously injured him. Held sufficient prima facie evidence of negligence for the jury, to cast on the defendant the onus of proving that the accident was not caused by his negligence.

[S.C. 33 L.J. Ex. 13; 12 W.R. 279; 9 L.T. 450. Followed, Briggs v. Oliver, 1866, 4 H. & C. 407. Adopted, Smith v. Great Eastern Railway, 1866, L. R. 2 C.P. 11.]

Declaration. For that the defendant, by his servants, so negligently and unskillfully managed and lowered certain barrels of flour by means of a certain jigger-hoist and machinery attached to the shop of the defendant, situated in a certain highway, along which the plaintiff was then passing, that by and through t he negligence of the defendant, by his said servants, one of the said barrels of flour fell upon and struck against t he plaintiff, whereby the plaintiff was thrown down, wounded, lamed, and permanently injured, and was prevented from attending to his business for a long time, to wit, thence hitherto, and incurred great expense for medical attendance, and suffered great pain and anguish, and was otherwise damnified.

Plea. Not guilty.

At the trial before the learned Assessor of the Court of Passage at Liverpool, the evidence adduced on the part of the plaintiff was as follows:—A witness named Critchley said: "On the 18th July, I was in Scotland Road, on the right side going north, defendant's shop is on that side. When I was opposite to his shop, a barrel of flour fell from a window above in defendant's house and shop, and knocked [2 Hurlst. & Colt. 723] the plaintiff down. He was carried into an adjoining shop. A horse and cart came opposite the defendant's door. Barrels of flour were in the cart. I do not think the barrel was being lowered by a rope. I cannot say: I did not see the barrel until it struck the plaintiff. It was not swinging when it struck the plaintiff. It struck him on the shoulder and knocked him towards the shop. No one called out until after the accident." The plaintiff said: "On approaching Scotland Place and defendant’s shop, I lost all recollection. I felt no blow. I saw nothing to warn me of danger. I was taken home in a cab. I was helpless for a fortnight." (He then described his sufferings.) "I saw the path clear. I did not see any cart opposite defendant's shop." Another witness said: "I saw a barrel falling. I don't know how, but from defendant's." The only other witness was a surgeon, who described the injury which the plaintiff had received. It was admitted that the defendant was a dealer in flour.

It was submitted, on the part of the defendant, that there was no evidence of negligence for the jury. The learned Assessor was of that opinion, and nonsuited t he plaintiff, reserving leave to him to move the Court of Exchequer to enter the verdict for him with 501. damages, the amount assessed by the jury.

Littler, in the present term, obtained a rule nisi to enter the verdict for the plaintiff, on the ground of misdirection of the learned Assessor in ruling that there was no evidence of negligence on the part of the defendant; against which

Charles Russell nowshewed cause. First, there was noevidence to connect the defendant or his servants with the occurrence. It is not suggested that the defendant himself was present, and it will be argued that upon these pleadings it is not open to the defendant to contend that his servants were not engaged in lowering the barrel of flour. But the [2 Hurlst. & Colt. 724]declaration alleges that the defendant, by his servants, so negligently lowered the barrel of flour, that by and through the negligence of the defendant, by his said servants, it fell upon the plain tiff. That is tantamount to an allegation that the injury was caused by t he defendant's negligence, and it is competent to him, under t he plea of not guilty, to contend that his servants were not concerned in the act alleged. The plaintiff could not properly plead to this declaration that his servants were not guilty of negligence, or that the servants were not his servants. If it [159 Eng. Rep. 300] had been stated by way of inducement that at the time of the grievance the defendant’s servants were engaged in lowering the barrel of flour, that would have been a traversable allegation, not in issue under the plea of not guilty. Mitchell v. Crassweller (13 C. B. 237) and Hart v. Crowley (12 A. & E. 378) are authorities in favour of the defendant. Then, assuming the point is open upon these pleadings, there was no evidence that the defendant, or any person for whose acts he would be responsible, was engaged in lowering the barrel of flour. It is consistent with the evidence that the purchaser of the flour was superintending the lowering of it by his servant, or it may be that a stranger was engaged to do it without the knowledge or authority of the defendant. [Pollock, C. B. The presumption is that the defendant's servants were engaged in removing the defendant's flour; if they were not it was competent to the defendant to prove it. J Surmise ought not to be substituted for strict proof when it is sought to fix a defendant with serious liability. The plaintiff should establish his case by affirmative evidence.

Secondly, assuming the facts to be brought home to the defendant or his servants, these facts do not disclose any evidence for the jury of negligence. The plaintiff was bound to give affirmative proof of negligence. But there [2 Hurlst. & Colt. 725]was not a scintilla of evidence, unless the occurrence is of itself evidence of negligence. There was not even evidence that the barrel was being lowered by a jigger-hoist as alleged in the declaration. [Pollock, C. B. There are certain cases of which it may be said res ipsa loquitur, and this seems one of them. In some cases the Courts have held that the mere fact of the accident having occurred is evidence of negligence, as, for instance, in the case of railway collisions.] On examination of the authorities, that doctrine would seem to be confined to the case of a collision between two trains upon the same line, and both being the property and under the management of the same Company. Such was the case of Skinner v. The London, Brighton and South Coast Railway Company (5 Exch. 787), where the train in which the plaintiff was ran into another train which had stopped a short distance from a station, in consequence of a luggage train before it having broken down. In that case there must have been negligence, or the accident could not have happened. Other cases cited in the text-books, in support of the doctrine of presumptive negligence, when examined, will be found not to do so. Amongst them is Carpue v. The London and Brighton Railway Company (5 Q.B. 747), but there, in addition to proof of the occurrence, the plaintiff gave affirmative evidence of negligence, by shewing that the rails were somewhat deranged at the spot where the accident took place, and that the train was proceeding at a speed which, considering the state of the rails, was hazardous. Another case is Christie v. Griggs (2 Campb. 79), where a stage-coach on which the plaintiff was travelling broke down in consequence of the axle-tree having snapped asunder. But that was an action on the contract to carry safely, and one of the counts imputed the accident to the insufficiency of the [2 Hurlst. & Colt. 726]coach, of which its breaking down would be evidence for the jury. [Pollock, C. B. What difference would it have made, if instead of a passenger a bystander had been injured?) In the one case the coach proprietor was bound by his contract to provide a safe vehicle, in the other he would only be liable in case of negligence. The fact of the accident might be evidence of negligence in the one case, though not in the other. It would seem, from the case of Bird v. The Great Northern Railway Company (28 L.J. Exch. 3), that the fact of a train running off the line is not prima facie proof where the occurrence is consistent with the absence of negligence on the part of the defendants. Later cases have qualified the doctrine of presumptive negligence. In Cotton v. Wood (11 C.B. N.S. 568) it was held that a Judge is not justified in leaving the case to the jury where the plaintiff's evidence is equally consistent with the absence as with the existence of negligence in the defendant. In Hammack v. White (11 C.B. N.S. 588, 594), Erie, J., said that he was of opinion “that the plaintiff in a case of this sort was not entitled to have the case left to the jury unless he gives some affirmative evidence that there has been negligence on the part of the defendant.” [Pollock, C.B. If he meant that to apply to all cases, I must say, with great respect, that I entirely differ from him. He must refer to the mere nature of the accident in that particular case. Bramwell, B. No doubt, the presumption of negligence is not raised in every case of injury from accident, but in some it is. We must judge of the facts in a reasonable way; and regarding them in that light we know that these accidents do not take place without a cause, and in general that cause is negligence.] The law will not presume that a man is guilty of a wrong. It is consistent with the [159 Eng. Rep. 301] facts proved that the defendant's servants were using [2 Hurlst. & Colt. 727] the utmost care and the best appliances to lower the barrel with safety. Then why should the fact that accidents of this nature are sometimes caused by negligence raise any presumption against the defendant? There are many accidents from which no presumption of negligence can arise. [Bramwell, B. Looking at the matter in a reasonable way it comes to this—an injury is done to the plaintiff, who has no means of knowing whether it was the result of negligence; the defendant, who knows how it was caused, does not think fit to tell the jury.] Unless a plaintiff gives some evidence which ought to be submitted to the jury, the defendant is not bound to offer any defence. The plaintiff cannot, by a defective proof of his case, compel the defendant to give evidence in explanation. [Pollock, C.B. I have frequently observed that a defendant has a right to remain silent unless a prima facie ease is established against him. But here the question is whether the plaintiff has not shewn such a case.] In a case of this nature, in which the sympathies of a jury are with the plaintiff, it would be dangerous to allow presumption to be substituted for affirmative proof of negligence. Littler appeared to support the rule, but was not called upon to argue.

POLLOCK, C.B. We are all of opinion that the rule must be absolute to enter the verdict for the plaintiff. The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong tolay down asa rule that in no case can presumption of negligence arise from the fact of an accident. Suppose in this case the barrel bad rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred?It is [2 Hurlst. & Colt. 728] the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be prima facie evidence of negligence. Or if an article calculated to cause damage is put in a wrong place and does mischief, I think that those whose duty it was to put it in the right place are prima facie responsible, and if there is any state of facts to rebut the presumption of negligence, they must prove them. The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the controul of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to shew that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.

BRAMWELL, B. I am of the same opinion.

CHANNELL, B. I am of the same opinion. The first part of the rules assumes the existence of negligence, but takes this shape, that there was no evidence to connect the defendant with the negligence. The barrel of flour fell from a warehouse over a shop which the defendant occupied, and [2 Hurlst. & Colt. 729] therefore prima facie he is responsible. Then the question is whether there was any evidence of negligence, not a mere scintilla, but such as in the absence of any evidence in answer would entitle the plaintiff to a verdict. I am of opinion that there was. I think that a person who has a warehouse by the side of a public highway, and assumes to himself the right to lower from it a barrel of flour into a cart, has a duty cast upon him to take care that persons passing along the highway are not injured by it. I agree that it is not every accident which will warrant the inference of negligence. On the other hand, I dissent from the doctrine that there is no accident which will in itself raise a presumption of negligence. In this case I think that there was evidence for the jury, and that the rule ought to be absolute to enter the verdict for the plaintiff.

PIGOTT, B. I am of the same opinion.

Rule absolute.

83 Cal.App.2d 210 (1948)

BEULAH LARSON, Appellant,
v.
ST. FRANCIS HOTEL et al., Respondents.

Civ. No. 13573.

California Court of Appeals. First Dist., Div. One.

Jan. 12, 1948.

Harry G. Henderson for Appellant.

Hoge, Pelton & Gunther and Leo V. Killion for Respondents.

BRAY, J.

The accident out of which this action arose was apparently the result of the effervescence and ebullition of San Franciscans in their exuberance of joy on V-J Day, August 14, 1945. Plaintiff (who is not included in the above description), while walking on the sidewalk on Post Street adjoining the St. Francis Hotel, just after stepping out from under the marquee, was struck on the head by a heavy, overstuffed armchair, knocked unconscious, and received injuries for which she is asking damages from the owners of the hotel. Although there were a number of persons in the immediate vicinity, no one appears to have seen from whence the chair came nor to have seen it before it was within a few feet of plaintiff's head, nor was there any identification of the chair as belonging to the hotel. However, it is a reasonable inference that the chair came from some portion of the hotel. For the purposes of this opinion, we will so assume, in view of the rule on nonsuit cases that every favorable [212] inference fairly deducible from the evidence must be drawn in favor of plaintiff, and that all the evidence must be construed most strongly against the defendants. (9 Cal.Jur. p. 551.)

At the trial, plaintiff, after proving the foregoing facts and the extent of her injuries, rested, relying upon the doctrine of res ipsa loquitur. On motion of defendant the court granted a nonsuit. The main question to be determined is whether under the circumstances shown, the doctrine applies. The trial court correctly held that it did not.

In Gerhart v. Southern Cal. Gas Co., 56 Cal.App.2d 425 [132 P.2d 874], cited by plaintiff, the court sets forth the test for the applicability of the doctrine. "... for a plaintiff to make out a case entitling him to the benefit of the doctrine, he must prove (1) that there was an accident; (2) that the thing or instrumentality which caused the accident was at the time and prior thereto under the exclusive control and management of the defendant; (3) that the accident was such that in the ordinary course of events, the defendant using ordinary care, the accident would not have happened. ... The doctrine of res ipsa loquitur applies only where the cause of the injury is shown to be under the exclusive control and management of the defendant and can have no application ... to a case having a divided responsibility where an unexplained accident may have been attributable to one of several causes, for some of which the defendant is not responsible, and when it appears that the injury was caused by one of two causes for one of which defendant is responsible but not for the other, plaintiff must fail, if the evidence does not show that the injury was the result of the former cause, or leaves it as probable that it was caused by one or the other." (Emphasis added.)

Applying the rule to the facts of this case, it is obvious that the doctrine does not apply. While, as pointed out by plaintiff, the rule of exclusive control "is not limited to the actual physical control but applies to the right of control of the instrumentality which causes the injury" it is not clear to us how this helps plaintiff's case. A hotel does not have exclusive control, either actual or potential, of its furniture. Guests have, at least, partial control. Moreover, it cannot be said that with the hotel using ordinary care "the accident was such that in the ordinary course of events ... would not have happened." On the contrary, the mishap would quite as likely be due to the fault of a guest or other person [213] as to that of defendants. The most logical inference from the circumstances shown is that the chair was thrown by some such person from a window. It thus appears that this occurrence is not such as ordinarily does not happen without the negligence of the party charged, but, rather, one in which the accident ordinarily might happen despite the fact that the defendants used reasonable care and were totally free from negligence. To keep guests and visitors from throwing furniture out windows would require a guard to be placed in every room in the hotel, and no one would contend that there is any rule of law requiring a hotel to do that.

The cases cited by plaintiff as authority for the application of the doctrine of res ipsa loquitur are easily distinguishable from this case. In Gerhart v. Southern Cal. Gas Co., supra, which involved an explosion from leaking gas, the court found (p. 427) that defendant was in the exclusive ownership, control and management of the supply, flow and existence of the gas which exploded. In Helms v. Pacific Gas & Electric Co., 21 Cal.App.2d 711 [70 P.2d 247], a glass portion of an electrolier fell and injured the plaintiff, who was standing on the sidewalk beneath it. The parties stipulated that the electrolier was owned and maintained by the defendant. There, not only was the instrumentality which caused the accident in the exclusive control and management of the defendant, but the falling of the glass portion was something that in the ordinary course of events would not occur if the defendant used ordinary care in maintaining it.

In Michener v. Hutton, 203 Cal. 604 [265 P. 238, 59 A.L.R. 480], the length of pipe which fell and caused the injury was "unquestionably under the management of the appellants at the time of the accident." (P. 609.) While the court holds that (p. 608) "The doctrine has also found frequent application in actions for damages for injuries incurred by reason of being struck by falling objects," it is limited to situations in which the thing is shown to be under the exclusive management or control of the defendant or his servants, or in which it must necessarily follow that the injury would not have occurred had the defendant used ordinary care.

In Mintzer v. Wilson, 21 Cal.App.2d 85 [68 P.2d 370], a paid guest in defendant's hotel was injured while in bed by the falling of a huge piece of plaster from the ceiling. It was held by the court that the ceiling was in the exclusive [214] control of the hotel, and that plaster does not ordinarily fall from properly constructed ceilings.

Hubbert v. Aztec Brewing Co., 26 Cal.App.2d 664 [80 P.2d 185, 1016], holds (p. 688): "The mere fact that an accident has occurred does not of itself result in any inference of negligence as against a defendant. ... To justify the invocation of the rule res ipsa loquitur the instrumentality which caused the injury must have been under the exclusive management of the defendant" and quotes from Biddlecomb v. Haydon, 4 Cal.App.2d 361, 364 [40 P.2d 873], as follows: "Neither does it apply where the cause of the accident is unexplained and might have been due to one of several causes for some of which the defendant is not responsible." See, also, Hilson v. Pacific G. & E. Co., 131 Cal.App. 427, 434 [21 P.2d 662], which held that in a situation as last above quoted, the doctrine "can in no event apply."

Plaintiff quotes 9 California Jurisprudence, page 548 to the effect "that a motion for a nonsuit must point the attention of the court and counsel to the precise grounds upon which it is made" and contends that the motion for nonsuit in the trial court did not do this. The motion was made on the ground that "there is no evidence from which it might be inferred that the hotel was guilty of any negligence which caused the chair" to hit plaintiff. It further points out that the only evidence attempting to connect the hotel with the accident is the fact that it occurred in the proximity of the hotel, and that such proof is not sufficient to establish liability. The motion was sufficient.

In her complaint plaintiff alleged in paragraph III that the defendant was engaged in the hotel business on all the premises described therein and had the right of control and management thereof. In its answer defendants denied all of the allegations of paragraph III and then stated: "Further answering paragraph III, these defendants admit that they operated the St. Francis Hotel at said time as copartners." Plaintiff contends that in some way this is an admission that defendants had exclusive control and management of the furniture of the hotel so as to warrant the application of the doctrine of res ipsa loquitur. It is obvious that such contention is without merit.

The judgment appealed from is affirmed.

Peters, P. J., and Ward, J., concurred.

[95 N.W.2d 659] Syllabus by the Court

1. Where a hotelkeeper knows or has reason to know of the danger of injury to passers-by from the acts of its transient guests within the hotel, it is under the duty to take reasonable steps to avoid such injury.

2. One who assembles a large number of people upon his premises for the purpose of financial gain to himself assumes responsibility for using all reasonable care to protect others from injuyr from causes reasonably to be anticipated. In the exercise of this duty it is necessary for him to furnish a sufficient number of guards or attendants and to take precautions to control the actions of the crowd. Whether the guards furnished or the precautions taken are sufficient is ordinarily a question for the jury to determine.

3. The common-law test of duty is the probability of injury to [254 Minn. 374] others. The risk of injury to others reasonably to be perceived within the range of apprehension defines the duty to be obeyed.

4. For the risk of injury be within a defendant's range of apprehension it is not necessary that the defendant should have notice of the particular method in which an accident might occur, if the possibility of an accident is clear to a person of ordinary prudence.

5. While the standard of care remains the same, the degree of care owed by the defendant varies with the facts and circumstances surrounding each particular case.

6. It is the policy of the law, both statutory and decisional, to protect the public from social consequences of intoxicating liquor, and a hotel operator engaged in that business who permits [95 N.W.2d 660] crowds to gather upon his premises for profit must recognize the risks which flow from the nature of the business.

7. Where the operator of a hotel permitted its facilities to be used in the conduct of a convention attended by more than 4,000 young men, 350 to 400 of whom were registered guests, during which convention intoxicating liquor was sold and dispensed free of charge at 'hospitality centers' throughout the building; where after several days the hotel management had notice of a course of disorderly conduct followed by its guests as evidenced by damage to the hotel property, objects being thrown from the upper floors of the building, and where hallways and adjacent premises were daily littered with the debris of broken glasses and bottles, a question was presented to the jury as to whether or not the defendant had notice or should have foreseen that in the course of such conduct objects might be thrown from hotel windows to the sidewalk below as a result of which members of the public would be exposed to bodily harm.

8. Where a hotelkeeper whose premises were used as headquarters for a convention attended by more than 4,000 young men, after notice of the disorderly nature of the convention, failed to make any request [254 Minn. 375] to convention authorities to control the conduct of those attending the convention, and where he failed to request additional police protection or to hire additional guards after it became apparent that the convention was 'out of control,' a question was presented to the jury under facts recited in opinion as to whether or not the defendants in the exercise of reasonable care used such precautions as the circumstances required to protect members of the public using adjacent streets from harm resulting from objects being thrown from the hotel premises to the sidewalk below.

9. A pedestrian using a sidewalk adjacent to a hotel where intoxicating liquor is sold and dispensed has the right to assume that the owner will exercise reasonable care to the end that the acts and conduct permitted upon the property will not expose a member of the public to the risk of bodily harm.

10. Whether the proprietors of a hotel, having notice of the disorderly behavior of their guests and invitees, took such steps as a person of ordinary prudence would take to protect others from foreseeable hazards resulting from disorderly conduct was a question of fact for the jury.

11. The law does not require every fact and circumstance which make up a case of negligence to be proved by direct and positive evidence or by the testimony of eyewitnesses, and circumstantial evidence alone may authorize a finding of negligence. Negligence may be inferred from all of the facts and surrounding circumstances and, where the evidence of such facts and circumstances is such as to take the case out of the realm of conjecture and into the field of legitimate inference from established facts, a prima facie case is made.

[254 Minn. 376] G. M. Sullivan and Charles R. Murnane, Murnane & Murnane, St. Paul, for appellant.

Meagher, Geer, Markham & Anderson, O. C. Adamson, II, and Wm. T. Egan, Minneapolis, for respondents.

MURPHY, Justice.

Action by Marcella A. Connolly against The Nicollet Hotel, a copartnership, and Alice Shmikler, as trustee of Joseph Shmikler, and others, doing business as The Nicollet Hotel, for the loss of the sight of her left eye alleged to have been caused by defendants' negligence.

The accident occurred about midnight June 12, 1953, during the course of the 1953 National Junior Chamber of Commerce Convention which had its headquarters [95 N.W.2d 661] at The Nicollet Hotel in Minneapolis. It was occasioned when plaintiff was struck in her left eye by a substance falling from above her as she walked on a public sidewalk on Nicollet Avenue adjacent to the hotel.

The 1953 National Junior Chamber of Commerce Convention, Inc., was joined as a defendant in the action, but at the close of the testimony a verdict was directed in its favor. The jury returned a verdict against The Nicollet Hotel copartnership, which will hereinafter be designated defendants, in the sum of $30,000. This is an appeal from an order of the trial court granting judgment for such defendants notwithstanding the verdict. On appeal plaintiff contends that defendants were negligent in failing to maintain order and control the conduct of their guests with respect to persons using the sidewalk adjacent to the hotel building and that hence the court erred in granting judgment notwithstanding the verdict.

The evidence, presented entirely by plaintiff inasmuch as defendants rested at the conclusion of plaintiff's case, established the following: The easterly side of The Nicollet Hotel is adjacent to Nicollet Avenue. The hotel lies between Washington Avenue to the north and Third Street to the south. It is a 12-story building, but on the Nicollet Avenue side it [254 Minn. 377] is limited to eight stories in height. It has a capacity of approximately 490 sleeping rooms on the upper eleven floors. There are no other high buildings in its vicinity. Just south of the hotel on Nicollet Avenue is The Nicollet Hotel garage also operated by defendants. On the east side of Nicollet Avenue opposite the hotel were two 4-story buildings. To the south of these is a parking lot.

Nicollet Avenue in his block is about 50 feet in width. The sidewalks adjacent to it on each side are about 10 feet in width from curb line to building line. At the time of the accident that half of the west sidewalk nearest to the hotel was blocked off by a barricade from the Nicollet Avenue hotel entrance south for about 95 feet, leaving an area about 5 feet in width for pedestrian traffic for such distance. The hotel entrance on Nicollet Avenue is about midway between Washington Avenue and the entrance to the hotel garage.

The time of the accident there was nothing unusual about the weather. Plaintiff, in company with one Margaret Hansen, had just left the hotel via its Nicollet Avenue entrance and was walking southerly toward Third Street on the west side of Nicollet Avenue. When she had traveled approximately six to ten steps from the canopy extending over such entrance, she observed two people walking toward her. She then heard a noise which sounded like a small explosion and saw something strike the walk in front of her. She observed that one of the persons approaching her was struck on the left shoulder by some substance. She then exclaimed, 'We better get off this sidewalk, * * * or somebody is going to get hit.' Immediately thereafter she glanced upward and was struck in the left eye by a substance she described as a mud-like substance or a 'handful of dirt.' Margaret Hansen testified that she also saw the substance falling from eye level to the sidewalk a step or two in front of her. She described the sound made by the striking object as explosive and accompanied by a splattering. The only place from which the article might have fallen from above was the hotel building.

The blow which struck plaintiff caused her to lose her balance but not to fall. Her knees buckled and she was caught by Margaret Hansen and held on her feet. Following the blow, she stated that she could not open her left eye and the left side of her face and head became numb, [254 Minn. 378] and her shoulders, hair, and the left side of her face were covered with dirt. A dark substance which looked like mud was found imbedded in her left eye. After the acciden the assistant manager of the hotel attempted to remove a 'mud like substance' [95 N.W.2d 662] from plaintiff's eye by using a cotton applicator. As a result of the foregoing accident, plaintiff lost the sight of the injured eye.

As stated above, the 1953 National Junior Chamber of Commerce Convention occupied a substantial portion of the hotel at the time of the accident. In connection therewith various delegates and firms maintained hospitality centers there where intoxicants, beer, and milk were served to guests and visitors. Two of such centers were located on the Nicollet Avenue side of the building.

The assistant manager of the hotel on duty at the time of the accident and in charge of maintaining order had received notice that water bags had been thrown from the hotel during the previous days of the convention. The night engineer testified that on the Hennepin Avenue side of the hotel he had observed liquor and beer bottles and cans on the sidewalk and described the accumulation in this area as greater than he had ever witnessed during the 18-month period he had been employed at the hotel. He also testified that he had found cans and beer bottles upon the fire escape at the third-floor level during the convention.

Arthur Reinhold, an employee of the garage, had been informed that objects had fallen or been thrown from the hotel and that a window screen had fallen from the building, first striking the barricade covering the sidewalk next to the garage, and then falling upon a pedestrian. He also was advised that ice cubes had been thrown from the hotel and that a bottle had been thrown or had fallen therefrom during the course of the convention.

Since in reviewing an order upon a motion granting judgment notwithstanding the verdict we are required to view the evidence in the light most favorable to the verdict, it is material to point out these additional facts: A floral shop was maintained on the premises where potted plants were sold. During the course of the convention a mule was stabled in the lobby of the hotel, and a small alligator was kept on the fourth floor. There was firing of guns in the lobby. Broken bottles and broken glass [254 Minn. 379] were found on the sidewalk near the garage adjacent to the building so that it was necessary to clean the sidewalk near the garage as frequently as twice a day during the course of the convention. The doorman at the hotel was equipped with a shovel and broom which he used for this sidewalk maintenance. Property of the hotel was damaged on the third, fourth, fifth, sixth, eighth, ninth, tenth, and eleventh floors. The window of the office of the credit manager was broken. From the testimony of the executive housekeeper of the hotel the damage consisted of wet carpets, broken chairs, broken screens, molding torn loose from connecting doors, and walls spotted with liquor and water. The inspection of the building made after the accident indicated that there were three missing window screens, mirrors pulled off the walls in bathrooms, light fixtures were broken, signs were broken, hall lights were broken, exit lights were broken, the bowl in the men's washroom was torn off the wall, holes were drilled through door panels, and 150 face towels had to be removed from service. Borken glass and bottles were found on landings and stair wells, a condition which existed almost every night at all floor levels. It became apparent to the general manager of the hotel on June 11, 1953, the day prior to the happening of the accident to the plaintiff, that the disorderly behavior of the hotel guests created a hazard to the defendant's property. He issued the following memorandum to his staff:

'WE HAVE ALMOST ARRIVED AT THE END OF THE MOST HARROWING EXPERIENCE WE HAVE HAD IN THE WAY OF CONVENTIONS, AT LEAST IN MY EXPERIENCE! WHEN WE BECAME INVOLVED AND SAW WHAT THE SITUATION WAS, [95 N.W.2d 663] WE HAD NO ALTERNATIVE BUT TO PROCEED AND 'TURN THE OTHER CHEEK.' HOWEVER, IT INVOLVES CERTAIN EXPENSES THAT I DO NOT PROPOSE TO FOREGO WITHOUT AT LEAST AN ARGUMENT--AND MAYBE LEGAL SUIT.

'I, OF COURSE, AM SPEAKING OF ANY DAMAGE, WHICH FOR THE MOST PART WILL BE REPORTED BY THE HOUSEKEEPING DEPARTMENT. HOWEVER, THAT I MAY DRAW UP A COMPREHENSIVE CASE, PLEASE HAVE THE INFORMATION IN MY OFFICE NOT LATER THAN NOON, FRIDAY. WE WILL, [254 Minn. 380] INCIDENTALLY, START TO TAKE DOWN ALL SIGNS, ETC., AT 9:00 AM, FRIDAY MORNING.'

In granting the defendants' motion for judgment notwithstanding the verdict, the trial court was of the view that there was no evidence which would support a finding that the defendants had knowledge of the particular risk of injury to a member of the public and that by the exercise of ordinary care they could not know that a guest's conduct would naturally result in injury to others. The trial court apparently agreed with the defendants' contention that prior to the plaintiff's injury there was no time to ascertain the location of the room from which the object fell or from which it was thrown and to evict therefrom the person or persons responsible therefor. Bruner v. Seelbach Hotel Co., 133 Ky. 41, 117 S.W. 373, 19 Ann.Cas. 217.

It is generally agreed that a hotel owner or innkeeper owes a duty to the public to protect it against foreseeable risk of danger attendant upon the maintenance and operation of his property (Wolk v. Pittsburgh Hotels Co., 284 Pa. 545, 131 A. 537, 42 A.L.R. 1081; Kapphahn v. Martin Hotel Co., 230 Iowa 739, 298 N.W. 901); and to keep it in such condition that it will not be of danger to pedestrians using streets adjacent thereto. Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 83 S.W.2d 114.

The failure of a hotel owner and operator to take reasonable precautions to eliminate or prevent conditions of which he is or should be aware and which might reasonably be expected to be dangerous to the public may constitute negligence. Wolk v. Pettsburgh Hotels Co., supra. In Holly v. Meyers Hotel & Tavern, Inc., 9 N.J. 493, 495, 89 A.2d 6, 7, the Supreme Court of New Jersey has stated the rule this way:

'We accept the general doctrine that if the defendant hotel knew, or had reason to know, of the danger of injury to passers-by from the acts of its transient guests within the hotel, then it was under the duty to take reasonable steps to avoid such injury. See Wolk v. Pittsburgh Hotels Co., 284 Pa. 545, 131 A. 537, 42 A.L.R. 1081 (Sup.Ct.1925); Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 83 S.W.2d 114 (Ct.App.1935); Bruner v. Seelbach Hotel Co., 133 Ky. 41, 117 S.W. 373, 376 (Ct.App.1909); 43 C.J.S., p. 1176 (1945); 28 Am.Jur., p. 636 [254 Minn. 381] (1940).'

The plaintiff contends that the act which caused the injury was foreseeable and that the defendants failed in their duty to exercise reasonable care to restrain their guests or to prevent the injury.

There are certain controlling principles of law which must be kept in mind in considering the merits of the plaintiff's claims as they are established by the record. It is recognized that one who assembles a large number of people upon his premises for the purpose of financial gain to himself assumes the responsibility for using all reasonable care to protect others from injury from causes [95 N.W.2d 664] reasonably to be anticipated.^[1] In the exercise of this duty it is necessary for him to furnish a sufficient number of guards or attendants and to take other precautions to control the actions of the crowd.^[2] Whether the guards furnished or the precautions taken are sufficient is ordinarily a question for the jury to determine under all of the circumstances.

The common-law test of duty is the probability or foreseeability of injury to the plaintiff. As expressed by Chief Judge Cardozo, 'The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.' Palsgraf v. Long Island R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100, 59 A.L.R. 1253, 1256; 13 Dunnell, Dig. (3 ed.) § 6973, note 25. In Restatement, Torts, § 348, the same rule is expressed with respect to liability of one who holds out his property for use of the public. It is said that in the exercise of reasonable care the owner of a public place has a 'duty to police the premises' and to furnish a sufficient number of servants to afford reasonable protection 'if the place is one or the character of the business is such that the utility or other possessor should expect careless or criminal third persons to be thereon either generally or at some particular time.' Schubart v. Hotel Astor, Inc., 168 Misc. 431, 438, 5 N.Y.S.2d 203, 210.

For the risk of injury to be within the defendants' 'range of apprehension,' it is not necessary that the defendants should have had [254 Minn. 382] notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the person of ordinary prudence.^[3]

It should further be emphasized that, while the standard of care remains constant, the degree of care varies with the facts and circumstances surrounding each particular case. And, in considering the degree of care to be exercised by the defendants under the circumstances in the case before us, it is relevant to consider authorities dealing with the liability of hotelkeepers and bar operators.^[4]

Since the defendants are not only hotel operators but are engaged as well in the sale of intoxicating liquor, it is material to point out that they are under the duty to use reasonable care to protect guests and patrons from injury at the hands of irresponsible persons whom they knowingly permit to be in and about the premises on which their business is conducted. In Mastad v. Swedish Brethren, 83 Minn. 40, 42, 85 N.W. 913, 914, 53 L.R.A. 803, 805, 85 Am.St.Rep. 446, 448, we said:

'* * * All who engage in a public business of that nature are bound to protect their guests, both in person and property, from acts and misconduct of wrongdoers permitted to remain upon the premises; and the rules of law applicable to the common carrier are applicable alike to them.'

See, also, Windorski v. Doyle, 219 Minn. 402, 18 N.W.2d 142; Priewe v. Bartz, 249 Minn. 488, 83 N.W.2d 116. Although it appears from the record that the defendants doubted the wisdom of permitting free liquor and beer to be served upon the premises, they nevertheless permitted it.

[95 N.W.2d 665] It is policy of the law, both statutory and decisional, to protect the public from social consequences of intoxicating liquor. There is perhaps no field of business activity more hedged about with state and municipal laws and regulations designed to protect the public. When a [254 Minn. 383] person engaged in that business permits crowds to gather upon his premises for profit, he must recognize the risks which flow from the nature of the business.

In the light of the foregoing observations we may examine the record for the purpose of determining whether or not the act causing the injury was within the range of foreseeability and, if so, whether the defendants exercised the required degree of care to protect the public from the consequences of such an act. Since the act causing the injury must be considered in the light of the circumstances and conditions under which it is alleged to have occurred, it should be observed that the defendants not only furnished room accommodations for from 350 to 400 delegates but also provided their rooms and facilities as headquarters for a convention attended by more than 4,000 young men. This use differed from the ordinary commercial business of the hotel in that its rooms and facilities were turned over to the convention for meetings, caucuses, and social purposes. An officer of the convention described the delegates as a group of young men who 'work hard and * * * play hard.' It may be expected that in the light of human experience the defendants were aware of the fact that among this number, as in any group of young men, would be a certain number not concerned with the serious work of the convention. It must have been apparent to the defendants that the ready availability of free intoxicants would not tend to repress the urges of this element. After the convention had been in session for several days, it came to the attention of the management of the hotel that the premises, both inside and out, had been littered with the debris of broken glasses and bottles. They became aware of the considerable damage to their property and received complaints from a pedestrian and policemen that water bags were being thrown from the hotel upon the sidewalk. The accumulated effect of these happenings was to the executive director of the hotel a 'harrowing experience.' This was all before the accident to the plaintiff occurred. That the dropping of objects from the hotel windows by certain of those occupying the premises was within the range of foreseeability is evidenced by the fact that the hotel company, prior to the convention, took the precaution of cutting the corners out of hotel laundry bags so as to [254 Minn. 384] prevent their use as water containers. Moreover, it seems to us that in light of what had happened prior to the accident the management of the hotel must have been aware of the fact that in the indiscriminate throwing of glasses, bottles, and other objects in and about the hotel they might expect as part of that course of conduct that objects might be thrown from the windows to the sidewalk below. It is our view that these facts and circumstances presented a question for the jury to determine as to whether the negligent act which caused the plaintiff's injuries was within the defendants' range of foreseeability.

We turn next to inquire as to what precautions were taken by the defendants to protect the plaintiff as a member of the public from such foreseeable risk. It appears from the record that, after the hotel menager received the report that water bags had been dropped to the street, he said they patrolled the house and in rooms where they found 'they were doing entertaining we told them to be careful about throwing out anything.' He said that it wouldn't have done any good to try to find out the room from which the water bags were thrown, apparently for the reason that the convention was 'out of control.' He said the loss of control occurred every night 'Any time after seven o'clock in the evening, from seven on.' There is this testimony:

[95 N.W.2d 666] 'Q. Would you say yes or no that it was the most harrowing experience you had as a hotel operator of that hotel? A. Well, I would say yes.

'Q. And isn't it true that you and the other officers of the hotel were all of that view even before the convention was over?

'A. Well, I would say, yes.

'Q. Now, is it true at the conclusion of this convention that you and the other members of the hotel management were shocked by the damage done to your premises during the course of this convention? A. Yes, we were.'

The manager of the hotel was asked if, when Miss Connolly was injured, he did not say, 'Well, here is another of those incidents. I will be glad when this * * * convention is over.' He did not deny making [254 Minn. 385] that statement and admitted that he might have made it because that was the way he felt at the time it happened. There is this testimony from the housekeeper:

'Q. But when you have in combination in a matter of a couple days time mirrors broken, recessed lights in the hallway broken, permanent quiet signs attached to the wall torn off, when you have the exit lights damaged, when you have the hall fixtures damaged, when you have the screens damaged, as you described, when you have wash bowls torn off of the wall in the men's room, when you have doors kicked in, when you have mouldings torn off, when you have seven holes drilled into a door of the hotel, wouldn't you say that is a shocking experience over a two day period of time?

'A. Yes, I think it is.

'Q. The like of which you had never seen before in that interval of time with any convention in that hotel. A. That's right. It really is true.'

The record establishes that the defendants made no complaint as to the conduct of the guests and invitees to any responsible official of the Junior Chamber of Commerce. Had one been made, it may be assumed that the officers of the convention could have controlled their own members. Neither did the management of the hotel complain to the authorities or ask for additional police protection. On the record we are satisfied that it was plainly a question for the jury to say whether under these unusual circumstances the defendants should have anticipated an accident such as happened and whether they should have taken some precautions by way of securing additional police or watchmen to supervise the conduct of their patrons. It is apparent from the record that, after the hotel management became aware of the disorderly character of the convention, it took no further affirmative action to protect the interests of the public. We are of the view that, once it became apparent to the defendants that the preliminary precautions which had been taken were not sufficient to protect the public from foreseeable risks which might arise from the disorderly character of the convention, the hotel had an affirmative duty to take further precautions [254 Minn. 386] to protect the public. Without undertaking to state precisely what precautions should have been taken by the defendants under the circumstances, we think that evidence of the defendants' failure to hire additional guards, to secure additional police protection, or to appeal to responsible officers of the convention presented a fact question as to whether the defendants exercised due care commensurate with the circumstances. The argument may well be advanced that by 'turning the other cheek,' to use an expression of the hotel's managing director, the defendants acquiesced in the misuse of their [95 N.W.2d 667] property and became for all practical purposes participants in such misuse.

The defendants further contend that there can be no liability to the plaintiff for the reason that she was neither an invitee nor patron of their establishment. They argue that they cannot be held liable for the unauthorized acts of a third person who, while on their premises, causes injury to an occupant of a public sidewalk. It may be briefly said that, even though the plaintiff was not a patron or a guest of the defendants, a relationship existed between them at the time and place of the injury which gave rise to a legal duty on the part of the defendants. That relationship imposed an affirmative duty upon the defendants to guard the public from danger flowing from the use of their property by their guests and invitees, even though that use was not authorized by the defendants. There was a duty on the part of the defendants to members of the public at large to protect them from injury by forces set in motion as a result of the use which the defendants permitted to be made of their property. Here the plaintiff was a pedestrian within her rights as an occupant of the sidewalk on a street adjacent to the defendants' hotel. There was evidence from which a jury could find that she was injured as a result of disorderly conduct upon the premises, the risk of which was foreseeable and in regard to which the defendants after notice failed to take measures to protect her as a member of the public. In Priewe v. Bartz, 249 Minn. 488, 491, 83 N.W.2d 116, 119, in discussing the rights of a patron of a 3.2 beer establishment we said that such a person 'has a right to rely on the belief that he is in an orderly house and that its operator, personally or by his delegated employee, will exercise reasonable care 'to the end that the doings in [254 Minn. 387] the house shall be orderly." By the same token it may be said that a pedestrian using a sidewalk adjacent to a hotel where intoxicating liquor is sold and dispensed may assume that the owner will exercise reasonable care to the end that the acts and conduct permitted upon the property will not expose a member of the public to the risk of bodily harm.

The conclusions we reach are supported by respected authority. In Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 83 S.W.2d 114, a pedestrian was injured in an accident resulting from the throwing of a paper bag containing water from an upper floor of the defendant hotel while a convention of the Veterans of Foreign Wars was in progress. The manager of the hotel admitted that objects had been thrown from the hotel on every night of the convention. It was the contention of the defendant that in order to impose liability it was necessary to establish that the proprietor of the hotel had reason to foresee that the object would be dropped or thrown so that the proprietor would have notice and an opportunity to exercise reasonable care to prevent the occurrence; that the guests to whom the defendant had assigned rooms were entitled to courteous treatment; and that the defendant had no right of access to the rooms of guests. The court held, however, that the guests were under a duty to refrain from unlawful and disorderly conduct which endangered the safety of others; that a willful violation of that duty forfeited the right of the guest to possession of the room; and that when the defendant became aware of the existence of the disorderly conduct of the guest it was its duty to exercise reasonable care to abate the condition. There, as here, there was no evidence to identify the particular room from which the object was thrown. Nevertheless, the court held that it was the duty of the defendant in the exercise of reasonable care to identify the offenders and the rooms used by them in the perpetration of the wrong. In that case the house officer had checked various rooms occupied by the guests and made inquiry as to whether or not they had thrown water into the streets. The night manager also went across the street and watched windows of the hotel but could not [95 N.W.2d 668] identify any of the rooms from which the objects were thrown. The court there said (229 Mo.App. 916, 83 S.W.2d 118):

[254 Minn. 388] 'The mere failure of defendant to exercise ordinary care to identify the rioters was not sufficient to fix liability upon it. The defendant was not liable unless it could by the exercise of ordinary care have abated the condition in time to have prevented the injury to plaintiff. The evidence was sufficient to allow the jury to find that the defendant, though it had the right to evict the wrongdoers, negligently failed to identify them and, hence, never attempted to exercise such right. Having the legal right to evict the offenders, this court cannot say as a matter of law that the defendant could not by the exercise of reasonable care have enforced this right prior to the time plaintiff was injured. The question was one for the jury.'

See, also, Weihert v. Piccione, 273 Wis. 448, 78 N.W.2d 757; Pfeifer v. Standard Gateway Theater, Inc., 259 Wis. 333, 48 N.W.2d 505; Fortier v. Hibernian Bldg. Ass'n, 315 Mass. 446, 53 N.E.2d 110; Southern Enterprises of Texas, Inc. v. Marek, Tex.Civ.App., 68 S.W.2d 384. Admittedly under the facts in the Gore case there were more frequent incidents of objects having been thrown from the hotel by its occupants. But it does not seem to us that the duration or frequency of the disorderly acts is determinative. The issue is whether the proprietors of the hotel had notice of the disorderly behavior of their guests and, after having had such notice, whether they took such steps as a person of ordinary prudence would take to protect others from foreseeable hazards resulting from the disorderly conduct of their guests.

We think the authorities relied upon by the defendants may be distinguished. Wolk v. Pettsburgh Hotels Co., 284 Pa. 545, 131 A. 537, 42 A.L.R. 1081, where it was held that an innkeeper is not liable for injuries caused by a transient guest's placing of objects on a window sill, which objects fell to the street injuring a person in an automobile, and Larson v. St. Francis Hotel, 83 Cal.App.2d 210, 211, 188 P.2d 513, 514, where a pedestrian was injured when a guest of the defendant hotel as 'the result of the effervescence and ebullition of San Franciscans in their exuberance of joy on V--J Day' tossed an armchair out of a hotel window, may be distinguished in that they deal with instances of sporadic or isolated acts of which the owner did not have notice and in regard to which he had no opportunity to take steps to [254 Minn. 389] remove the danger. We think that Holly v. Meyers Hotel & Tavern, Inc., 9 N.J. 493, 89 A.2d 6, may also be distinguished. Under the facts in that case the court concluded (9 N.J. 496, 89 A.2d 7): '* * * there was no occasion for any affirmative action' during the 2-hour period between the time the guests of the hotel who were responsible for the accident were warned by the hotel management and the time the accident occurred. These cases do not deal with facts establishing a course of disorderly conduct continuing over a period of days and under circumstances where the defendants admitted that they had lost control of the orderly management of their property and failed to do anything about it.

The defendants contend that the proof is circumstantial and that there is no evidence that the object which struck the plaintiff came from the hotel. The plaintiff was struck in the eye by a mass of moist dirt or earth. The jury could find that this object was not an accumulation of dirt which fell from the structure. The record indicates that periodic inspections were made of the exterior of the building so that there would be no sizeable collection of dirt on it. Nor was it likely that the mass of dirt or earth came from some other building. From the physical location of the place where the accident occurred and the surrounding structures, there was ample evidence from which the jury could find that the place from which the mass of dirt or earth came would be the Nicollet [95 N.W.2d 669] Hotel property. The record before us indicates that the Nicollet Hotel is a 12-story structure. The accident occurred approximately 100 feet from Washington Avenue and 100 feet from the garage entrance south of the hotel. Across the street from the hotel on Nicollet Avenue are two 4-story buildings. Nicollet Avenue is 50 feet in width. There was nothing unusual about the weather conditions and no evidence of a wind which might carry a mass of mud from a distant source. There is no evidence to indicate that the mass of mud came from a vehicle or other pedestrian. We think that under the facts in this case the evidence presents inferences which make the question of where the mass of mud came from one for the jury.

We have said many times that the law does not require every fact and circumstance which make up a case of negligence to be proved by [254 Minn. 390] direct and positive evidence or by the testimony of eyewitnesses, and that circumstantial evidence alone may authorize a finding of negligence. Negligence may be inferred from all the facts and surrounding circumstances, and where the evidence of such facts and circumstances is such as to take the case out of the realm of conjecture and into the field of legitimate inference from established facts, a prima facie case is made. Standafer v. first Nat. Bank, 243 Minn. 442, 448, 68 N.W.2d 362, 366; 38 Am.Jur., Negligence, § 333; Westling v. Holm, 239 Minn. 191, 58 N.W.2d 252.

Reversed.

THOMAS GALLAGHER, Justice (dissenting).

The question presented is whether defendant should have reasonably anticipated that someone would throw or drop some substance from a window on the Nicollet Avenue side of the hotel shortly after midnight the last day of the convention and whether it had taken reasonable precautions to prevent such conduct.

It is well settled that an innkeeper is liable to third persons for the act of a guest only where he knew, or by the exercise of ordinary care could have known, that the guest was likely to do some act that would result in injury to such third person. 28 Am.Jur., Innkeepers, § 138; Annotation, 42 A.L.R. 1088. The duty rests upon him to protect such persons from foreseeable risks attendant upon the maintenance and operation of the property and to exercise reasonable care to keep it in such condition so as not to endanger them. He is not required to guard against every conceivable or possible danger, but only against those which appear reasonably probable. Kepphahn v. Martin Hotel Co., 230 Iowa 739, 298 N.W. 901; Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 83 S.W.2d 114; Wolk v. Pittsburgh Hotels Co., 284 Pa. 515, 131 A. 537, 42 A.L.R. 1081; Holly v. Meyers Hotel & Tavern Inc., 9 N.J. 493, 89 A.2d 6.

When plaintiff was injured shortly after midnight, the convention had been in progress for 3 days and had reached its final stages. It had been quite disorderly. There is testimony that on previous days some of the guests had thrown or dropped ice cubes and in one instance a screen from the upper windows of the hotel. There is no evidence that [254 Minn. 391] acts of this kind had been a continuous practice during the convention, or that they had been engaged in at all on the day of plaintiff's injury. There is no evidence that defendant knew that any such misconduct was taking place just prior to the time of the occurrence involved. Defendant had retained two men regularly employed at the hotel and had six more men to patrol its corridors and prevent disorders during the convention. In addition the convention corporation had employed two men for this purpose, and the police of the city continued to maintain a regular 24-hour beat on the sidewalks adjacent to the hotel. During previous days of the convention, when defendant's manager had been notified that objects had been thrown from hotel windows, he had promptly [95 N.W.2d 670] checked the rooms in which he suspected such misconduct was occurring, but in each instance their occupants had denied that anyone therein had been guilty of the offenses described.

It is difficult to speculate as to what further precautions should reasonably have been required of defendant without making it an absolute insurer. Obviously, it could not direct its employees to enter guest rooms at random or to remain therein to prevent possible misconduct when it lacked evidence that any misconduct was occurring or was contemplated by room occupants. Not only would such procedure deprive guests of room privileges for which they had paid, but, if carried to its logical conclusion, it would require that defendant, to be exonerated from any claim of negligence, employ and station a guard in every convention guest room of the hotel during the entire convention. As stated in Larson v. St. Francis Hotel, 83 Cal.App.2d 210, 213, 188 P.2d 513, 515:

'* * * The most logical inference * * * is that the chair was thrown * * * from a window. * * * this occurrence is not such as ordinarily does not happen without the negligence of the party charged, but, rather, one in which the accident ordinarily might happen despite the fact that the defendants used reasonable care and were totally free from negligence. To keep guests and visitors from throwing furniture out windows would require a guard to be place in every room in the hotel, and no one would contend that there is any rule of law requiring a hotel to do that.'

[254 Minn. 392] The situation here is distinguishable from that in Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 83 S.W.2d 114, where convention guests had thrown placards, feathers, telephone books, pillows, waterfilled sacks, laundry bags, and like items from hotel windows for 3 days in a 'regular deluge'; and from that in Pfeifer v. Standard Gateway Theater, Inc., 259 Wis. 333, 48 N.W.2d 505, where, for some time prior to plaintiff's injury, objects were being thrown about a theater and the theater owner had done nothing to stop such misconduct.

The majority opinion recites a number of acts of misconduct on the part of the convention guests which seem to be entirely irrelevant to the issue to be determined. The fact that on a previous day, following the convention parade, beer bottles and beer cans had been left on the sidewalk adjacent to the Hennepin Avenue side of the hotel is not evidence that such articles had been thrown or dropped from the hotel windows. The same is true as to beer bottles and beer cans placed upon the third-floor fire escape on the day prior to the accident. Evidence of objects being dropped or thrown from the hotel on two or three isolated occasions is far from evidence of a deluge which might require prompt and positive preventative measures by a hotel proprietor as in Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 915, 83 S.W.2d 114, 117. An animal mascot in the hotel lobby and others on an upper floor of the hotel; broken glass on the sidewalk near the garage; and the firing of guns in the hotel lobby bear no relationship to defendant's obligation to use reasonable care to prevent articles from being thrown from its upper windows. Evidence of wet carpets, broken chairs, broken screens, and soiled walls inside the hotel, all resulting from misconduct on the part of convention guests, is likewise totally unrelated to the issue to be determined here.

It is suggested that All such factors might support a finding of negligence based upon defendant's failure to 'properly police the premises' or to 'furnish a sufficient number of servants to afford reasonable protection.' As pointed out above, to satisfy such a requirement would impose upon a hotel owner the obligation of stationing a guard in each room in which a convention guest was quartered so that its occupants might be kept under constant surveillance [95 N.W.2d 671] day and night. [254 Minn. 393] Such is not the obligation which has been imposed upon innkeepers or hotel owners by any decision on this subject. As stated in Bruner v. Seelbach Hotel Co., 133 Ky. 41, 49, 117 S.W. 373, 376, where a hotel owner was absolved from liability for the action of a guest in throwing a beer bottle into the street:

'* * * It is only when they (the hotel owners) know, or by the exercise of ordinary care could know, that the guest's conduct is such that injury will naturally result to others, that they have the right to eject the guest, or take precautions to control his conduct.'

The rule of conduct prescribed by the majority opinion would seem to eliminate any possibility of an innekeeper or hotel owner escaping the charge of negligence in connection with any injuries which might occur during a hotel convention regardless of any reasonable care or precautions taken by them.

MATSON, Justice (dissenting).

I concur in the dissent of Mr. Justice THOMAS GALLAGHER.

KNUTSON, Justice (dissenting).

I concur in the dissent of Mr. Justice THOMAS GALLAGHER.

[1] Pfeifer v. Standard Gateway Theater, Inc., 259 Wis. 333, 48 N.W.2d 505.

[2] Ibid.

[3] Zurich General Accident & Liability Ins. Co. v. Childs Co., 253 N.Y. 324, 328, 329, 171 N.E. 391, 392, and cases there cited.

[4] 28 Am.Jur., Innkeepers, §§ 54 and 55; Peck v. Gerber, 154 Ore. 126, 59 P.2d 675, 106 A.L.R. 996; 65 C.J.S., Negligence, § 45c; Weihert v. Piccione, 273 Wis. 448, 78 N.W.2d 757.

25 Cal.2d 486

Ybarra

v.

Spangard

L. A. No. 19067. In Bank.

Dec. 27, 1944.

JOSEPH ROMAN YBARRA, Appellant, v. LAWRENCE C. SPANGARD et al., Respondents.

COUNSEL

Marion P. Betty and Wycoff Westover for Appellant.

Parker & Stanbury, Harry D. Parker, Raymond G. Stanbury and Vernon W. Hunt for Respondents.

OPINION

GIBSON, C.J.

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

On October 28, 1939, plaintiff consulted defendant Dr. Tilley, who diagnosed his ailment as appendicitis, and made arrangements for an appendectomy to be performed by defendant Dr. Spangard at a hospital owned and managed by defendant Dr. Swift. Plaintiff entered the hospital, was given a hypodermic injection, slept, and later was awakened by Doctors Tilley and Spangard and wheeled into the operating room by a nurse whom he believed to be defendant Gisler, an employee of Dr. Swift. Defendant Dr. Reser, the anesthetist, also an employee of Dr. Swift, adjusted plaintiff for [25 Cal.2d 488] the operation, pulling his body to the head of the operating table and, according to plaintiff's testimony, laying him back against two hard objects at the top of his shoulders, about an inch below his neck. Dr. Reser then administered the anesthetic and plaintiff lost consciousness. When he awoke early the following morning he was in his hospital room attended by defendant Thompson, the special nurse, and another nurse who was not made a defendant.

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

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

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

Plaintiff's theory is that the foregoing evidence presents a proper case for the application of the doctrine of res ipsa loquitur, and that the inference of negligence arising therefrom makes the granting of a nonsuit improper. Defendants takes the position that, assuming that plaintiff's condition was in fact the result of an injury, there is no showing that the act of any particular defendant, nor any particular instrumentality, was the cause thereof. They attack plaintiff's [25 Cal.2d 489] action as an attempt to fix liability "en masse" on various defendants, some of whom were not responsible for the acts of others; and they further point to the failure to show which defendants had control of the instrumentalities that may have been involved. Their main defense may be briefly stated in two propositions: (1) that where there are several defendants, and there is a division of responsibility in the use of an instrumentality causing the injury, and the injury might have resulted from the separate act of either one of two or more persons, the rule of res ipsa loquitur cannot be invoked against any one of them; and (2) that where there are several instrumentalities, and no showing is made as to which caused the injury or as to the particular defendant in control of it, the doctrine cannot apply. We are satisfied, however, that these objections are not well taken in the circumstances of this case.

The doctrine of res ipsa loquitur has three conditions: "(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." (Prosser, Torts, p. 295.) It is applied in a wide variety of situations, including cases of medical or dental treatment and hospital care. (Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Brown v. Shortlidge, 98 Cal.App. 352 [277 P. 134]; Moore v. Steen, 102 Cal.App. 723 [283 P. 833]; Armstrong v. Wallace, 8 Cal.App2d 429 [47 P.2d 740]; Meyer v. McNutt Hospital, 173 Cal. 156 [159 P. 436]; Vergeldt v. Hartzell, 1 F.2d 633; Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228]; Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425]; see Shain, Res Ipsa Loquitur, 17 So.Cal.L. Rev. 187, 196.)

There is, however, some uncertainty as to the extent to which res ipsa loquitur may be invoked in cases of injury from medical treatment. This is in part due to the tendency, in some decisions, to lay undue emphasis on the limitations of the doctrine, and to give too little attention to its basic underlying purpose. The result has been that a simple, understandable rule of circumstantial evidence, with a sound background of common sense and human experience, has occasionally been transformed into a rigid legal formula, which [25 Cal.2d 490] arbitrarily precludes its application in many cases where it is most important that it should be applied. If the doctrine is to continue to serve a useful purpose, we should not forget that "the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person." (9 Wigmore, Evidence [3d. ed.], § 2509, p. 382; see, also, Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425, 432]; Ross v. Double Shoals Cotton Mills, 140 N.C. 115 [52 S.E. 121; 1 L.R.A.N.S. 298]; Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231].) In the last-named case, where an unconscious patient in a hospital received injuries from a fall, the court declared that without the doctrine the maxim that for every wrong there is a remedy would be rendered nugatory, "by denying one, patently entitled to damages, satisfaction merely because he is ignorant of facts peculiarly within the knowledge of the party who should, in all justice, pay them."

The present case is of a type which comes within the reason and spirit of the doctrine more fully perhaps than any other. The passenger sitting awake in a railroad car at the time of a collision, the pedestrian walking along the street and struck by a falling object or the debris of an explosion, are surely not more entitled to an explanation than the unconscious patient on the operating table. Viewed from this aspect, it is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone's negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability. (See Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228].) If this were the state of the law of negligence, the courts, to avoid gross injustice, would be forced to invoke the principles of absolute liability, irrespective of negligence, in actions by persons suffering injuries [25 Cal.2d 491] during the course of treatment under anesthesia. But we think this juncture has not yet been reached, and that the doctrine of res ipsa loquitur is properly applicable to the case before us.

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

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

We have no doubt that in a modern hospital a patient is quite likely to come under the care of a number of persons in different types of contractual and other relationships with each other. For example, in the present case it appears that Doctors Smith, Spangard and Tilley were physicians or surgeans commonly placed in the legal category of independent contractors; and Dr. Reser, the anesthetist, and defendant Thompson, the special nurse, were employees of Dr. Swift and not of the other doctors. But we do not believe that either the number or relationship of the defendants alone determines whether the doctrine of res ipsa loquitur applies. Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for [25 Cal.2d 492] failure in this regard. Any defendant who negligently injured him, and any defendant charged with his care who so neglected him as to allow injury to occur, would be liable. The defendant employers would be liable for the neglect of their employees; and the doctor in charge of the operation would be liable for the negligence of those who became his temporary servants for the purpose of assisting in the operation.

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

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

The other aspect of the case which defendants so strongly emphasize is that plaintiff has not identified the instrumentality any more than he has the particular guilty defendant. Here, again, there is a misconception which, if carried to the extreme for which defendants contend, would unreasonably limit the application of the res ipsa loquitur rule. It should be enough that the plaintiff can show an injury resulting [25 Cal.2d 493] from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make.

An examination of the recent cases, particularly in this state, discloses that the test of actual exclusive control of an instrumentality has not been strictly followed, but exceptions have been recognized where the purpose of the doctrine of res ipsa loquitur would otherwise be defeated. Thus, the test has become one of right of control rather than actual control. See Metx v. Southern Pac. Co., 51 Cal.App.2d 260, 268 [127 P.2d 670].) In the bursting bottle cases where the bottler has delivered the instrumentality to a retailer and thus has given up actual control, he will nevertheless be subject to the doctrine where it is shown that no change in the condition of the bottle occurred after it left the bottler's possession, and it can accordingly be said that he was in constructive control. (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453 [150 P.2d 436].) Moreover, this court departed from the single instrumentality theory in the colliding vehicle cases, where two defendants were involved, each in control of a separate vehicle. (See Smith v. O'Donnell, 215 Cal. 714 [12 P.2d 933]; Godfrey v. Brown, 220 Cal. 57 [29 P.2d 165, 93 A.L.R. 1072]; Carpenter, 10 So.Cal.L.Rev. 170.) Finally, it has been suggested that the hospital cases may properly be considered exceptional, and that the doctrine of res ipsa loquitur "should apply with equal force in cases wherein medical and nursing staffs take the place of machinery and may, through carelessness or lack of skill, inflict, or permit the infliction of, injury upon a patient who is thereafter in no position to say how he received his injuries." (Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231]; see, also, Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425, 435], where the court refers to the "instrumentalities" as including "the unconscious body of the plaintiff.")

In the face of these examples of liberalization of the tests for res ipsa loquitur, there can be no justification for the rejection of the doctrine in the instant case. As pointed out above, if we accept the contention of defendants herein, there will rarely be any compensation for patients injured while unconscious. A hospital today conducts a highly integrated system of activities, with many persons contributing their efforts. There may be, e.g., preparation for surgery by nurses [25 Cal.2d 494] and internes who are employees of the hospital; administering of an anesthetic by a doctor who may be an employee of the hospital, an employee of the operating surgeon, or an independent contractor; performance of an operation by a surgeon and assistants who may be his employees, employees of the hospital, or independent contractors; and post surgical care by the surgeon, a hospital physician, and nurses. The number of those in whose care the patient is placed is not a good reason for denying him all reasonable opportunity to recover for negligent harm. It is rather a good reason for re-examination of the statement of legal theories which supposedly compel such a shocking result.

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

The judgment is reversed.

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

C. Nicholas Pereos, Reno, for appellant.

Cromer, Barker & Michaelson, Las Vegas, for respondents Knobbe.

McDonald, Carano, Wilson, Bergin & Bible, Reno, for respondents Doherty.

OPINION

MOWBRAY, Justice:

The sole issue presented is whether the doctrine of res ipsa loquitur may be invoked to recover damages from a hotel's guests for a fire that originated in one of the guests' rooms. The district judge on a motion for summary judgment held that [93 Nev. 202] under the facts presented the doctrine was not applicable. We agree and affirm.

A fire was discovered in a hotel room in Las Vegas. The cause of the fire was determined to be a cigarette. On the night of the fire, the room was occupied by Respondents John and Marilyn Doherty. The Dohertys were traveling in the company of Respondents Andrew and Geraldine Knobbe, who occupied an adjoining, connecting room.

A complaint was filed by appellant insurance company against respondents, claiming subrogation to the rights of the hotel and alleging negligence predicated both on a standard evidentiary negligence theory and on the doctrine of res ipsa loquitur. Respondents moved for summary judgment. The court denied the motion, on the ground that there was a conflict of material fact under the standard evidentiary theory; however, the court granted the motion as to the res ipsa loquitur theory of liability. Appellant then stipulated that there was insufficient evidence to establish negligence without the aid of res ipsa loquitur. This appeal followed.

In Bialer v. St. Mary's Hosp., 83 Nev. 241, 243, 427 P.2d 957, 958 (1967), this court said:

For the doctrine of res ipsa loquitur to apply, three conditions must be met: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) the event must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the event must not have been due to any voluntary action or contribution on the part of the plaintiff.

Evidence was presented that the hotel had 18 keys to the room where the fire occurred. The staff was not questioned to determine whether anyone had entered the room after the four respondents had departed and before the discovery of the fire. Further, appellant failed to demonstrate [562 P.2d 826] that respondents had exclusive control or joint control of the instrumentality causing the damage. Taken in the light most favorable to the appellant, the evidence established that all four respondents were smoking in the room. While each had exclusive control of his or her own cigarette, there is no evidence as to which cigarette started the fire. Traditionally, such a failure defeats the plaintiff's case. There have been cases, however, in which res ipsa loquitur has been applied to multiple defendants, thereby shifting the burden to each individual defendant to present exculpating evidence. Appellant relies upon the leading case of Ybarra v. Spangard, 25 Cal.2d 486, [93 Nev. 203] 154 P.2d 687 (1944), in urging this theory in this case. In Ybarra, an appendectomy patient who awoke with a shoulder injury was permitted to invoke the doctrine of res ipsa loquitur against several medical petitioners in whose care he had been while unconscious. No showing had been made as to which defendant or what instrumentality had caused the injury. The court concluded this did not bar the doctrine, holding, however, that the ruling was limited to the fact situation presented.

The rule has also been applied, upon occasion, in a variety of other fact situations: Smith v. Claude Neon Lights, Inc., 110 N.J.L. 326, 164 A. 423 (1933) (plaintiff injured by falling sign sued owner of building and light company which erected and maintained sign); Schroeder v. City & County Sav. Bank, 293 N.Y. 370, 57 N.E.2d 57 (1944) (plaintiff injured by collapse of construction barricade sued owner of building and two construction companies); Bond v. Otis Elevator Co., 388 S.W.2d 681 (Tex. 1965) (plaintiff injured when elevator went into free fall sued owner of building and company which installed and maintained elevator); Burr v. Sherwin-Williams Co., 258 P.2d 58 (Cal.App.1953) (plaintiff whose cotton crop was damaged by insecticide spray sued manufacturer of spray, spraying company, and local cooperative which advised use of spray); Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574 (1951) (plaintiff injured by a falling ladder sued lessee of premises and carpenter doing repairs on premises).^[1] In the foregoing cases, the instrumentality causing the damage was known. While the plaintiff had not established which defendant had been negligent, he had established that each was at some time or to some extent responsible for that instrumentality. Only the cases involving unconscious patients lack direct evidence as to both the particular defendant and the particular instrumentality responsible, as does the instant case.

More commonly, it has been held that when any of several defendants wholly independent of each other may be responsible for plaintiff's injury, the doctrine of res ipsa loquitur cannot [93 Nev. 204] be applied. See, e.g., Estes v. Estes, 127 S.W.2d 78 (Mo.App.1939); Gerber v. Faber, 54 Cal.App.2d 674, 129 P.2d 485 (1942); Wolf v. American Tract Soc'y, 164 N.Y. 30, 58 N.E. 31 (1900). In Wolf, the plaintiff had been injured by a brick falling from a building under construction in which 19 independent contractors were at work. The court rejected the lower court's application of res ipsa loquitur to two of these contractors, which would have required them to come forward with proof of their innocence. It concluded, at 32, that:

Cases must occasionally happen where the person really responsible for a personal injury cannot be identified or pointed out by proof, as in this case; and then it is far better and more consistent with reason and law that the injury should go without redress, than that innocent persons should be held responsible, upon [562 P.2d 827] some strained construction of the law developed for the occasion.

Clearly, the doctrine has no application in this case, where there is lacking even a scintilla of evidence indicating which respondent had control of the cigarette that started the fire.

The order granting summary judgment is affirmed.^[2]

BATJER, C.J., and ZENOFF, THOMPSON and GUNDERSON, JJ., concur.

[1] In his dissent in Raber, Justice Traynor noted, 226 P.2d at 579, the danger of extending the Ybarra holding to other fact situations:

Under the rule of the Ybarra case as here applied a plaintiff who has suffered an injury of a kind that ordinarily does not occur in the absence of someone's negligence may establish a cause of action against all persons who had an opportunity to cause the injury. A plaintiff, for instance, who is struck on the head by a flower pot falling from a multistoried apartment building may recover judgment against all the tenants unless the innocent tenants are able to identify the guilty one.

[2] As the parties have not raised the question, we do not here decide whether an insurance carrier indeed has a right of subrogation where a hotel purchases insurance to protect against negligence of its guests. See Central Nat'l Ins. Co. v. Dixon, 93 Nev. ---, 559 P.2d 1187 (1977).

17 F.3d 209 (1994)

Philip J. Schmidt, Chicago, IL (argued), Justin J. Tedrowe, Woodridge, IL, for plaintiff-appellant.

John C. Kiely, Dennis M. Glynn, John J. Zachara, Robert H. Riley, Thomas P. Heneghan (argued), Schiff, Hardin & Waite, Chicago, IL, for defendants-appellees.

[210] Before POSNER, Chief Judge, ROVNER, Circuit Judge, and MIHM, District Judge.^[1]

POSNER, Chief Judge.

Richard Welge, forty-something but young in spirit, loves to sprinkle peanuts on his ice cream sundaes. On January 18, 1991, Karen Godfrey, with whom Welge boards, bought a 24-ounce vacuum-sealed plastic-capped jar of Planters peanuts for him at a K-Mart store in Chicago. To obtain a $2 rebate that the maker of Alka-Seltzer was offering to anyone who bought a "party" item, such as peanuts, Godfrey needed proof of her purchase of the jar of peanuts; so, using an Exacto knife (basically a razor blade with a handle), she removed the part of the label that contained the bar code. She then placed the jar on top of the refrigerator, where Welge could get at it without rooting about in her cupboards. About a week later, Welge removed the plastic seal from the jar, uncapped it, took some peanuts, replaced the cap, and returned the jar to the top of the refrigerator, all without incident. A week after that, on February 3, the accident occurred. Welge took down the jar, removed the plastic cap, spilled some peanuts into his left hand to put on his sundae, and replaced the cap with his right hand—but as he pushed the cap down on the open jar the jar shattered. His hand, continuing in its downward motion, was severely cut, and is now, he claims, permanently impaired.

Welge brought this products liability suit in federal district court under the diversity jurisdiction; Illinois law governs the substantive issues. Welge named three defendants (plus the corporate parent of one—why we don't know). They are K-Mart, which sold the jar of peanuts to Karen Godfrey; Planters, which manufactured the product—that is to say, filled the glass jar with peanuts and sealed and capped it; and Brockway, which manufactured the glass jar itself and sold it to Planters. After pretrial discovery was complete the defendants moved for summary judgment. The district judge granted the motion on the ground that the plaintiff had failed to exclude possible causes of the accident other than a defect introduced during the manufacturing process.

No doubt there are men strong enough to shatter a thick glass jar with one blow. But Welge's testimony stands uncontradicted that he used no more than the normal force that one exerts in snapping a plastic lid onto a jar. So the jar must have been defective. No expert testimony and no fancy doctrine are required for such a conclusion. A nondefective jar does not shatter when normal force is used to clamp its plastic lid on. The question is when the defect was introduced. It could have been at any time from the manufacture of the glass jar by Brockway (for no one suggests that the defect might have been caused by something in the raw materials out of which the jar was made) to moments before the accident. But testimony by Welge and Karen Godfrey, if believed— and at this stage in the proceedings we are required to believe it—excludes all reasonable possibility that the defect was introduced into the jar after Godfrey plucked it from a shelf in the K-Mart store. From the shelf she put it in her shopping cart. The checker at the check-out counter scanned the bar code without banging the jar. She then placed the jar in a plastic bag. Godfrey carried the bag to her car and put it on the floor. She drove directly home, without incident. After the bar-code portion of the label was removed, the jar sat on top of the refrigerator except for the two times Welge removed it to take peanuts out of it. Throughout this process it was not, so far as anyone knows, jostled, dropped, bumped, or otherwise subjected to stress beyond what is to be expected in the ordinary use of the product. Chicago is not Los Angeles; there were no earthquakes. Chicago is not Amityville either; no supernatural interventions are alleged. So the defect must have been introduced earlier, when the jar was in the hands of the defendants.

But, they argue, this overlooks two things. One is that Karen Godfrey took a knife to the jar. And no doubt one can weaken a glass jar with a knife. But nothing is more common or, we should have thought, more harmless than to use a knife or a razor [211] blade to remove a label from a jar or bottle. People do this all the time with the price labels on bottles of wine. Even though mishandling or misuse, by the consumer or by anyone else (other than the defendant itself), is a defense, though a limited and (subject to a qualification noted later) partial defense, to a products liability suit in Illinois as elsewhere, e.g., J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc., 118 Ill.2d 447, 114 Ill.Dec. 105, 111, 516 N.E.2d 260, 266 (1987); King v. American Food Equipment Co., 160 Ill.App.3d 898, 112 Ill. Dec. 349, 356, 513 N.E.2d 958, 965 (1987); Early-Gary, Inc. v. Walters, 294 So.2d 181, 186-87 (Miss.1974); Annot., "Products Liability: Sufficiency of Evidence to Support Product Misuse Defense in Actions Concerning Bottles, Cans, Storage Tanks, or Other Containers," 58 A.L.R.4th 160 (1987), and even if, as we greatly doubt, such normal mutilation as occurred in this case could be thought a species of mishandling or misuse, a defendant cannot defend against a products liability suit on the basis of a misuse that he invited. The Alka-Seltzer promotion to which Karen Godfrey was responding when she removed a portion of the label of the jar of Planters peanuts was in the K-Mart store. It was there, obviously, with K-Mart's permission. By the promotion K-Mart invited its peanut customers to remove a part of the label on each peanut jar bought, in order to be able to furnish the maker of Alka-Seltzer with proof of purchase. If one just wants to efface a label one can usually do that by scraping it off with a fingernail, but to remove the label intact requires the use of a knife or a razor blade. Invited misuse is no defense to a products liability claim. Invited misuse is not misuse.

The invitation, it is true, was issued by K-Mart, not by the other defendants; and we do not know their involvement, if any, in the promotion. As to them, the defense of misuse must fail, at this stage of the proceedings, for two other reasons. The evidence does not establish with the certitude required for summary judgment that the use of an Exacto knife to remove a label from a jar is a misuse of the jar. And in a regime of comparative negligence misuse is not a defense to liability but merely reduces the plaintiff's damages, unless the misuse is the sole cause of the accident.

Even so, the defendants point out, it is always possible that the jar was damaged while it was sitting unattended on the top of the refrigerator, in which event they are not responsible. Only if it had been securely under lock and key when not being used could the plaintiff and Karen Godfrey be certain that nothing happened to damage it after she brought it home. That is true— there are no metaphysical certainties—but it leads nowhere. Elves may have played ninepins with the jar of peanuts while Welge and Godfrey were sleeping; but elves could remove a jar of peanuts from a locked cupboard. The plaintiff in a products liability suit is not required to exclude every possibility, however fantastic or remote, that the defect which led to the accident was caused by someone other than one of the defendants. The doctrine of res ipsa loquitur teaches that an accident that is unlikely to occur unless the defendant was negligent is itself circumstantial evidence that the defendant was negligent. The doctrine is not strictly applicable to a products liability case because unlike an ordinary accident case the defendant in a products case has parted with possession and control of the harmful object before the accident occurs. St. Paul Fire & Marine Ins. Co. v. Michelin Tire Corp., 12 Ill.App.3d 165, 298 N.E.2d 289, 297-98 (1973). But the doctrine merely instantiates the broader principle, which is as applicable to a products case as to any other tort case, that an accident can itself be evidence of liability. Id., 298 N.E.2d at 298; Doyle v. White Metal Rolling & Stamping Corp., 249 Ill.App.3d 370, 188 Ill. Dec. 339, 346 and n. 3, 618 N.E.2d 909, 916 and n. 3 (1993). If it is the kind of accident that would not have occurred but for a defect in the product, and if it is reasonably plain that the defect was not introduced after the product was sold, the accident is evidence that the product was defective when sold. The second condition (as well as the first) has been established here, at least to a probability sufficient to defeat a motion for summary judgment. Normal people do not lock up their jars and cans lest something happen to damage these containers while no one is [212] looking. The probability of such damage is too remote. It is not only too remote to make a rational person take measures to prevent it; it is too remote to defeat a products liability suit should a container prove dangerously defective.

Of course, unlikely as it may seem that the defect was introduced into the jar after Karen Godfrey bought it if the plaintiffs' testimony is believed, other evidence might make their testimony unworthy of belief—might even show, contrary to all the probabilities, that the knife or some mysterious night visitor caused the defect after all. The fragments of glass into which the jar shattered were preserved and were examined by experts for both sides. The experts agreed that the jar must have contained a defect but they could not find the fracture that had precipitated the shattering of the jar and they could not figure out when the defect that caused the fracture that caused the collapse of the jar had come into being. The defendants' experts could neither rule out, nor rule in, the possibility that the defect had been introduced at some stage of the manufacturing process. The plaintiff's expert noticed what he thought was a preexisting crack in one of the fragments, and he speculated that a similar crack might have caused the fracture that shattered the jar. This, the district judge ruled, was not enough.

But if the probability that the defect which caused the accident arose after Karen Godfrey bought the jar of Planters peanuts is very small—and on the present state of the record we are required to assume that it is— then the probability that the defect was introduced by one of the defendants is very high. In principle there is a third possibility —mishandling by a carrier hired to transport the jar from Brockway to Planters or Planters to K-Mart—but we do not even know whether a carrier was used for any of these shipments, rather than the shipper's own trucks. Apart from that possibility, which has not been mentioned in the litigation so far and which in any event, as we are about to see, would not affect K-Mart's liability, the jar was in the control of one of the defendants at all times until Karen Godfrey bought it.

Which one? It does not matter. The strict-liability element in modern products liability law comes precisely from the fact that a seller subject to that law is liable for defects in his product even if those defects were introduced, without the slightest fault of his own for failing to discover them, at some anterior stage of production. Crowe v. Public Building Comm'n, 74 Ill.2d 10, 23 Ill.Dec. 80, 81, 383 N.E.2d 951, 952 (1978); Thomas v. Kaiser Agricultural Chemicals, 81 Ill.2d 206, 40 Ill.Dec. 801, 805, 407 N.E.2d 32, 36 (1980); Flaminio v. Honda Motor Co., 733 F.2d 463, 467 (7th Cir.1984). So the fact that K-Mart sold a defective jar of peanuts to Karen Godfrey would be conclusive of K-Mart's liability, and since it is a large and solvent firm there would be no need for the plaintiff to look further for a tortfeasor. This point seems to have been more or less conceded by the defendants in the district court—the thrust of their defense was that the plaintiff had failed to show that the defect had been caused by any of them— though this leaves us mystified as to why the plaintiff bothered to name additional defendants.

And even if, as we doubt, the plaintiff took on the unnecessary burden of proving that it is more likely than not that a given defendant introduced the defect into the jar, he might be able to avail himself of the rule of Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944), and force each defendant to produce some exculpatory evidence. Hessel v. O'Hearn, 977 F.2d 299, 305 (7th Cir.1992). In fact K-Mart put in some evidence on the precautions it takes to protect containers of food from being damaged by jarring or bumping. A jury convinced by such evidence, impressed by the sturdiness of jars of peanuts (familiar to every consumer), and perhaps perplexed at how the process of filling a jar with peanuts and vacuum-sealing it could render a normal jar vulnerable to collapsing at a touch, might decide that the probability that the defect had been introduced by either K-Mart or Planters was remote. So what? Evidence of K-Mart's care in handling peanut jars would be relevant only to whether the defect was introduced after sale; if it was introduced at any [213] time before sale—if the jar was defective when K-Mart sold it—the source of the defect would be irrelevant to K-Mart's liability. In exactly the same way, Planters' liability would be unaffected by the fact, if it is a fact, that the defect was due to Brockway rather than to itself. To repeat an earlier and fundamental point, a seller who is subject to strict products liability is responsible for the consequences of selling a defective product even if the defect was introduced without any fault on his part by his supplier or by his supplier's supplier.

In reaching the result she did the district judge relied heavily on Erzrumly v. Dominick's Finer Foods, Inc., 50 Ill.App.3d 359, 8 Ill.Dec. 446, 365 N.E.2d 684 (1977). A six-year-old was injured by a Coke bottle that she was carrying up a flight of stairs to her family's apartment shortly after its purchase. The court held that the plaintiff had failed to eliminate the possibility that the Coke bottle had failed because of something that had happened after it left the store. If, as the defendants in our case represent, the bottle in Erzrumly "exploded," that case would be very close to this one. A nondefective Coke bottle is unlikely to explode without very rough handling. The contents are under pressure, it is true, but the glass is strengthened accordingly. But it was unclear in Erzrumly what had happened to the bottle. There was testimony that the accident had been preceded by the sound of a bottle exploding but there was other evidence that the bottle may simply have been dropped and have broken—the latter being the sort of accident that happens commonly after purchase. Although the opinion contains some broad language helpful to the defendants in the present case, the holding was simply that murky facts required the plaintiff to make a greater effort to determine whether the product was defective when it left the store. Here we know to a virtual certainty (always assuming that the plaintiff's evidence is believed, which is a matter for the jury) that the accident was not due to mishandling after purchase but to a defect that had been introduced earlier.

Even the narrow holding of Erzrumly is probably wrong, in light of bottle and other container cases decided by Illinois courts both before and after, Tweedy v. Wright Ford Sales, Inc., 64 Ill.2d 570, 2 Ill.Dec. 282, 357 N.E.2d 449 (1976); Mabee v. Sutliff & Case Co., 404 Ill. 27, 88 N.E.2d 12 (Ill.1949); Fullreide v. Midstates Beverage Co., 70 Ill.App.3d 758, 27 Ill.Dec. 107, 388 N.E.2d 1070 (1979); Roper v. Dad's Root Beer Co., 336 Ill.App. 91, 82 N.E.2d 815 (1948), as well as by courts of other states. E.g., Van Duzer v. Shoshone Coca Cola Bottling Co., 103 Nev. 383, 741 P.2d 811 (1987) (per curiam); Virgil v. "Kash N' Karry" Service Corp., 61 Md.App. 23, 484 A.2d 652, 657 (Md.App.1984); Renninger v. Foremost Dairies, Inc., 171 So.2d 602, 604 (Fla.App. 1965). Right or wrong, Erzrumly is plainly contrary to Fullreide; and obviously when state courts of the same level reach opposite conclusions, a federal court in a diversity case is not bound to follow either.

REVERSED AND REMANDED.

[1] Hon. Michael M. Mihm of the Central District of Illinois.

[629] Darryl J. Tschirn, New Orleans, La., for plaintiff.

Lawrence J. Ernst, New Orleans, La., for defendants.

ALVIN B. RUBIN, District Judge:

A doctor who suffered a heart attack as a result of his exertions in saving the life of a mutilated diver invokes the Good Samaritan doctrine. The question presented is whether the doctrine extends to injuries sustained only indirectly from the perilous situation by a professional who was compensated for attempting the rescue.

Boone, a deep-sea diver, was injured in part due to the negligence of his employer, Taylor Diving, and in part due to his own contributory negligence. Boone was one of a group of divers who lived in a pressurized tube, six feet in diameter, for seven days during the course of which they made deep-sea dives. Living in the chamber made it unnecessary for them repeatedly to adjust to pressure and to be depressurized. They ate and slept, rested and relaxed, in the chamber between dives. The chamber was aboard a barge in the Gulf, off the Coast of Louisiana.

While living in the chamber, the divers used a toilet that flushed to the outside. When the toilet was flushed, the lower outside pressure sucked the atmosphere from the chamber. To prevent escape of pressure as well as danger to the divers while using the toilet, the toilet was controlled by two valves. When the diver was ready for the toilet to be flushed, he opened the inside valve, and, using a two-way speaker, asked personnel outside the chamber to open the outside valve and flush the toilet.

On this occasion, Boone left the inside valve open when using the toilet. While he was on the commode, the toilet was unaccountably flushed from the outside. Boone was partly eviscerated, a portion of his anus was ejected, and his condition presented the likelihood of his death if there were not immediate surgical treatment.

After a first aid man entered the chamber and diagnosed the problem, Taylor Diving telephoned and then sent a helicopter for Dr. Carter, a physician who was expert in medical diving problems. Dr. Carter was 46 years of age, and, although he had suffered from cardiac problems for a number of years, he continued to offer his services for offshore cases.

Before he left New Orleans, Dr. Carter decided surgical assistance might be needed, and he asked for the services of Dr. Tedesco, a surgeon. The two doctors were rushed by helicopter to the barge. They looked at Boone through a window, decided it was imperative he be operated on immediately, ordered surgical supplies, and, after being pressurized, entered the chamber.

[630] The operation was performed under great physical and mental strain. There were bunks on both sides of the cylinder, and a narrow passage between them. A sheet of plywood was placed between two lower bunks to serve as the operating table. The doctors could not work standing so they performed most of the necessary major abdominal surgery on their knees. No general anesthesia was available; the patient was provided merely with sedation. In a hospital the doctors would have been assisted by three trained attendants. They operated on Boone with the assistance only of the pharmacist's mate. The surgery required two hours of intense effort, and there is no question that, without it, Boone would have died.

After the operation, the doctors and Boone remained in the chamber to be depressurized. During this period, the doctors took turns attending Boone. As soon as it was safe to do so, they left the chamber. This was at 5:30 a. m., September 19, after the doctors had been in the pressurized tube for over 54 hours. They flew with Boone in a helicopter to a New Orleans hospital where an operation on Boone was again performed under normal conditions to be certain the emergency surgery was correct. Indeed it was, a remarkable surgical feat, and the task later attracted favorable medical comment.

After viewing the preliminaries of the hospital operation, Dr. Carter went to another room in the hospital to have a cup of coffee. Shortly after he arrived, he suffered a heart problem, which was later diagnosed as early congestive heart failure, atrio-fibrillation, and physical exhaustion.

Dr. Carter has engaged in the practice of medicine since 1954. Since 1960, he has represented himself as, and has been accepted as, a medical diving consultant. He and Dr. Tedesco expected to be compensated for their efforts on a fee basis set by themselves. Dr. Carter, who had previously been consulted by Taylor Diving, as well as by other companies in the diving business, had raised his fees to $100 per hour for medical services in his office; and $200 per hour for services outside his office, portal to portal, and an additional $100 per hour for all time spent in diving chambers. If it be of any consequence, there had been no express agreement to pay this rate though Taylor Diving did, after some dispute, pay it for both Dr. Carter's services and Dr. Tedesco's.

Dr. Carter had a pre-existing arteriosclerotic or incipient arteriosclerotic condition. It had been developing over a period of years and had been brought on or aggravated by long hours of work, obesity and excessive smoking. The attack he suffered in September 1969 was precipitated by the stress he had undergone in the three previous days, but it was merely an aggravation of the previous existing condition, not a new disease.

"Danger," a great jurist wrote, "invites rescue. The cry of distress is the summons to relief." Cardozo, J., in Wagner v. International Railway, 1921, 232 N.Y. 176, 133 N.E. 437. Since that day, over 40 years ago, the law has not doubted that "(t)he wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer." 232 N.Y. at 180, 133 N.E. at 437.

The person who by his tort imperils another has a duty to attempt to rescue the victim. He is responsible for the damages his tort causes. This embraces a duty to one who attempts to rescue the person who is endangered. When the rescuer acts from motives of altruism, and risks himself to save another, the risk of his harm falls on the tortfeasor who created the peril. Restatement, Second, Torts, § 449c; Annotation, 1945, Liability for Death of, or Injury to, One Seeking to Rescue Another, 158 A.L.R. 189; Annotation, 1922, Liability for Death of, or Injury to, One Seeking to Rescue Another, 19 A.L.R. 4; Annotation, 1955, Liability of One Negligently Causing Fire for Personal Injuries Sustained in Attempt to Control Fire or to Save Life or Property, 42 A. [631] L.R.2d 494; Harper and James, The Law of Torts, 1956, Vol. 2, § 18.2, p. 1020. Nor is the rule limited to spontaneous action; it also protects those who act after deliberation. See Prosser, The Law of Torts, 4th Ed. 1971, § 44, p. 277.

The jurisprudence has only touched the closely related problem of the directness or remoteness of the kind of injury suffered by the rescuer. Of course, when the condition negligently created is the direct cause of the injury to the rescuer, there can be no doubt of his right to recover. Without dwelling on the problem, most of the cases appear to assume that the Good Samaritan should be recompensed by the tortfeasor for any harm he suffers in the course of the rescue, even though it is unconnected with the tortfeasor's negligence. This case presents, then, the interrelated problems of the duty of care owed to those who may seek to succor the injured and the kind of harm for which damages may be awarded.

I. DUTY OF CARE

Here we deal with no altruist, no "act of charity," as Dr. Carter labels his conduct. Nor are we dealing with a fellow employee who leaps to the rescue, either for his normal pay or for motives of self-sacrifice. Here the rescuer was engaged to save. His injury thereafter resulted from no negligence on the part of the defendant, save the negligence that put Boone in his original danger.

There is little precedent for this occasion. Public servants, like firemen and police officers, we know, do not assume the risk of all injury in the course of their duties. Langlois v. Allied Chemical Corp., 1971, 258 La. 1067, 249 So.2d 133. Certainly where the original negligence continues and causes them injury in the act of rescue, they are entitled to damages. See Walker Hauling Co. v. Johnson, 1964, 110 Ga.App. 620, 139 S.E.2d 496; Cf. Nastasio v. Cinnamon, 1956, Mo., 295 S.W.2d 117. There may be other occasions where they are due a duty by those whose fault causes them to run a risk.

The warranty of seaworthiness does not extend to a fireman brought aboard a ship as a firewatcher. McDaniel v. M/S Lisholt, 2 Cir. 1958, 257 F.2d 538. "There can be no duty to furnish a seaworthy ship to a fireman who was on the vessel knowing it to be unseaworthy, and was on board because of its unseaworthiness." 257 F.2d at 540. The concept of that opinion is relevant: those who are paid to remedy defects are not indemnified against all injury by him who created the need for their services. Like reasoning would apply the same rule to those paid to render succor.

II. ASSUMPTION OF RISK

The physical strain of performing an operation in the diving chamber was greater than the physical exertion of operating in a hospital, and there must have been greater emotional stress. But neither of these differed in kind from the risk Dr. Carter's already damaged heart would have incurred from an assumption of similar responsibility in a hospital. Presumably his fee was set with some regard for the added inconvenience and exertion that the occasion demanded.

The peril to Dr. Carter's health was well known to him when he accepted employment: he knew his own physical weakness. He had repeatedly consulted other physicians and had treated himself for cardiac problems. He knew or should have known far better than Taylor Diving that the travel to and from offshore assignments, the long hours involved, and the tension inevitable in the circumstances would put a strain on his weak heart. This indicates that, in the literal sense, Dr. Carter knew, and assumed, the risk of what happened to him in the course of his professional efforts. See Prosser, The Law of Torts, 4th Ed. 1971, § 68, p. 447. By the classic test there stated, Dr. Carter knew and understood the risks he incurred and he [632] made an entirely free and voluntary choice to confront them.

Nor may we ignore the question whether the duty Taylor Diving owed Dr. Carter included protection against the consequences that he actually suffered. This issue, commonly referred to as "causation," really involves the question whether the defendant should be legally responsible for events occasioned at least in part by his conduct. Prosser, op. cit. supra, at 244. Restatement, Second, Torts § 431. This is "essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred." Prosser, op. cit. supra, at 244.

It would appear evident that a policeman who suffers a heart attack while chasing a suspect may not hold responsible a property owner whose negligence created the opportunity for crime. A fire fighter who is engaged to extinguish a well put aflame by a negligent act would not appear ipso facto to have a cause of action arising from the negligence that lit the flame. Cf. Corey v. Hiberly, 7 Cir. 1965, 346 F.2d 368, holding that the widow of a voluntary fire fighter who suffered a coronary occlusion while attempting to extinguish a small fire at a road side could not recover because the danger was too remote and was not proximately caused by the fire; and see Williams v. Chick, 8 Cir. 1967, 373 F.2d 330, where the court held it was improper to enter summary judgment because there were factual questions involved when a volunteer rescuer suffered a heart attack after physical exertion in effecting a rescue.

These may be mere a priori judgments. But it is unnecessary to multiply examples. The real question is whether the negligent act created the kind of peril that injured the rescuer and whether the injured rescuer suffered the kind of harm that the law considers to be the responsibility of the original actor.

In this case, there was no duty to Dr. Carter, as a professional surgeon, engaged at a special rate, to avoid creating a risk of hard work under great emotion. Nor can it be said that the negligence was, as to him, a proximate cause of his injury in any usual sense. Indeed, as has been indicated, he was well paid to undertake the exact sort of risk that caused his injury.

There being no duty, it is needless to deal in terms of "causation." But, as in Theodories v. Hercules Navigation Co., Inc., 5 Cir. 1971, 448 F.2d 701, Dr. Carter's injury resulted "not directly from the unseaworthy condition (or negligence) itself, but from a succession of events only tenuously related, in a causal sense, to the original condition." 448 F.2d at 704. The court there characterized an attempt to impose liability for the rescuer's "unforeseen cardiac failure after only slight exertion" as a "sort of for-want-of-the-nail-the-shoe-was-lost `proximate cause'." 448 F.2d at 704, n. 8.

It may be said that a humanitarian spirit would reach out to recompense the injured doctor. But dollars paid as balm for his hurt may not properly be extracted by the force of the law from the employer who did no negligent act toward him and who engaged him to save Boone without dickering on fee in advance. It may be said that the result of this case deters physicians from undertaking to render treatment, but it is evident that a contrary conclusion might well cause the employers of injured persons to hesitate before paying high prices to "Professional Samaritans" assuming known risks. It is the injured worker whose succor is society's first concern, and the result here will encourage providing aid to him without regard to the expense of experts' fees.

For these reasons, judgment will be rendered for the defendant.

[293] Steven H. Wilhelm, San Diego, for plaintiff and appellant.

Daley & Heft, Sarah H. Mason and Dennis W. Daley, Solana Beach, for defendant and respondent.

TODD, Acting Presiding Justice.

Kendra Knight appeals a summary judgment granted in favor of Michael Jewett in her lawsuit against Jewett for negligence and assault and battery stemming from a touch football game in which she was injured. Knight contends (1) it was error to apply the doctrine of assumption of risk to defeat the negligence cause of action, (2) it was error to apply the doctrine of assumption of risk to defeat the assault and battery cause of action and (3) there were triable issues of fact that should have precluded the granting of summary judgment.

FACTS

On January 25, 1987, Knight and several other individuals, including Jewett, gathered at the Vista home of Ed McDaniels to observe the Super Bowl football game. Knight and Jewett were among those who decided to play a game of co-ed touch football during half-time using a "peewee" football often used by children. Apparently, no explicit rules were written down or discussed before the game, other than the requirement that to stop advancement of the player with the ball it was necessary to touch that player above the waist with two hands. Knight and Jewett were on different teams.

Previously, Knight had played touch football and frequently watched football on television. Knight voluntarily participated in the Super Bowl half-time game. It was her understanding that this game would not involve forceful pushing, hard hitting or hard shoving during the game. She had never observed anyone being injured in a touch football game before this incident.

About five to ten minutes after the game started, Jewett ran into Knight during a play and afterward Knight asked Jewett not to play so rough. Otherwise, she told him, she would stop playing.

On the next play, Knight suffered her injuries, when she was knocked down by Jewett and he stepped on the little finger of her right hand. Kendra had three surgeries on the finger, but they proved unsuccessful. The finger was amputated during a fourth surgery.

According to Jewett, he had jumped up to intercept a pass and as he came down he knocked Knight over. When he landed, he stepped back and onto Knight's hand.

According to Knight's version, her teammate, Andrea Starr had caught the ball and was proceeding up the field. Knight was headed in the same direction, when Jewett, [294] in pursuit of Starr, came from behind Knight and knocked her down. Knight put her arms out to break the fall and Jewett ran over her, stepping on her hand. Jewett continued to pursue Starr for another 10 to 15 feet before catching up with her and tagging her. Starr said the tag was rough enough to cause her to lose her balance and fall and twist her ankle.

Jewett did not intend to step on Knight's hand and did not intend to hurt her.

DISCUSSION

I

Knight contends it was error to apply the doctrine of assumption of risk to the facts of this case and negate her cause of action for negligence. We disagree.

It is fundamental that a plaintiff in a negligence action can prevail only if he or she establishes the defendant owed the plaintiff a duty to use reasonable care and breached that duty. (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, 732, p. 60.) The doctrine of assumption of the risk is "another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event. Where no duty of care is owed with respect to a particular mishap, there can be no breach; consequently, as a matter of law, a personal injury plaintiff who has voluntarily--and reasonably--assumed the risk cannot prevail." (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 104, 243 Cal.Rptr. 536.)

We begin with a short history of California cases which have explored the defense of assumption of the risk after our Supreme Court handed down its decision in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808, 119 Cal.Rptr. [232 Cal.App.3d 1148] [3 Cal.App.4th 1028] 858, 532 P.2d 1226, abolishing the defense of contributory negligence and replacing it with a system of comparative negligence. Li raised considerable doubt as to the survival of assumption of the risk as a tort defense, except for express contractual assumption. (See, e.g., Schwartz, Comparative Negligence (2d ed. 1986) 9.1, p. 156.)

The first reported post-Li case in this area was Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578, in which the plaintiff was injured during a flag football game. In Segoviano, the Fifth Appellate District concluded that reasonable implied assumption of the risk had been abolished by Li:

"We interpret Li to mean that the separate defense of implied assumption of the risk is abolished under the comparative negligence law. It is only when the plaintiff expressly agrees to assume the risk that the defendant is relieved of a duty of care toward the plaintiff, thus barring any recovery. In our view, this is the only rational meaning to be given to the principles articulated in Li. The Supreme Court recognized that implied assumption of risk if unreasonable could be fairly handled under the comparative negligence concept, i.e., the plaintiff's recovery would be reduced to the extent his own lack of reasonable care contributed to his injury. If the plaintiff's conduct was entirely reasonable under all of the circumstances, we find no basis in reason or equity for barring his recovery." (Id. at pp. 169-170, 191 Cal.Rptr. 578.)

The position of the court in Segoviano, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, has found little support in subsequent cases. ^[1] The Third Division of our appellate district issued the first of these cases, Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793, 800, footnote 4, 202 Cal.Rptr. 900, in which the lead opinion, in dictum, affirmed the continued viability of an assumption of the risk defense and questioned the reasoning of Segoviano. Rudnick involved injury to a spectator at a baseball game at Anaheim Stadium, and one of the interposed defenses was assumption of risk. The appellate court did not reach this issue because it concluded summary judgment had been improvidently [295] granted on the basis of an insufficient declaration.

In Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668, a case involving injuries to a veterinary assistant, the Third Appellate District held the defense of assumption of the risk was applicable even though the claim was based upon strict liability under the dog-bite statute. The Nelson court said a veterinarian or his assistant is aware dogs may bite during treatment and "has assumed this risk as part of his or her occupation." (Id. at p. 715, 211 Cal.Rptr. 668.)

In Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 183, 229 Cal.Rptr. 612, a Second Appellate District case, the court said Li, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, did not abrogate the doctrine of implied reasonable assumption of the risk. In Neinstein, the plaintiff had occupied a seat in an unscreened area of Dodger Stadium and was struck by a batted ball. The appellate court upheld the granting of summary judgment in favor of the Dodgers, noting the plaintiff consented to take her own chances that she would not be injured when she voluntarily elected to sit in the unscreened area and "was sufficiently warned of the risk by common knowledge of the nature of the sport...." (Neinstein, supra, 185 Cal.App.3d at p. 184, 229 Cal.Rptr. 612.)

The definitive statement of the law of "reasonable implied assumption of the risk" is contained in Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, another decision by the Third Division of this appellate district. Ordway involved injuries suffered by a professional jockey during a race when other jockeys "crossed over" without sufficient clearance. The Ordway court, in a comprehensive review of the subject, compared (a) express assumption of the risk, (b) unreasonable implied assumption of the risk, and (c) reasonable assumption of the risk, and concluded Li, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, had merged only unreasonable implied assumption of the risk into the comparative negligence doctrine. Rejecting Segoviano, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, the Ordway court held that reasonable implied assumption of risk remained, after Li, a complete defense. (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 102-105, 243 Cal.Rptr. 536.) ^[2]

We join the clear California trend in adopting the Ordway analysis and conclusion that--notwithstanding the adoption of comparative negligence--reasonable implied assumption of risk remains a viable defense. We conclude the doctrine of reasonable implied assumption of risk is a logical allocation of risk among those who have impliedly agreed in advance. "Reasonable implied assumption of risk is the inferred agreement to relieve a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in encountering a known danger." (Ordway, supra, 198 Cal.App.3d at p. 102, 243 Cal.Rptr. 536, original italics.) In other words, it is the undertaking of a risk which a reasonable person would assume, with knowledge of all the circumstances. As Dean Prosser explained:

"[W]here the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation ... [h]e may then be regarded as tacitly or impliedly consenting to the negligence, and agreeing to take his own chances." (Prosser & Keeton, op. cit. supra, 68, p. 481, emphasis in original.)

The question remains whether application of the defense was proper here. Here, Knight was familiar with football and voluntarily joined a group of men and women to play a game of touch football. It is axiomatic that those who engage in or follow competitive sports know physical contact causing injuries is routinely caused by both the acts of adversaries and of [296] collaborators by reason of the very nature of the activity in which all participate. As an avid television watcher of Monday night professional football and sometime touch football player, Knight had to have been aware of the fact that contact is an inherent part of the game of football--even a social game of touch football. Though in her experience of playing touch football no one had previously been injured, Knight said in her deposition she was aware of the fact that in touch football people generally try to block the ball from the receiving player.

"If the defendant's actions, even those which might cause incidental physical damage in some sports, are within the ordinary expectations of the participants--such as blocking in football, checking in hockey, knock-out punches in boxing, and aggressive riding in horse racing--no cause of action can succeed based on a resulting injury." (Ordway, supra, 198 Cal.App.3d at pp. 111-112, 243 Cal.Rptr. 536, fn. omitted.)

When she voluntarily played in the game, Knight assumed a risk of physical contacts within the ordinary parameters of a game of touch football--and the dangers inherent in such contacts. Thus, her assumption of the risk of contact injury bars her negligence cause of action.

Knight's argument that implied reasonable assumption of risk was inapplicable because Jewett's conduct was outside the reasonable expectations of the participants is not persuasive. For one thing, the failure to set down explicit rules before the game started indicates the participants did not attempt to delineate the level of permissible force or aggressiveness or roughness for the game. Moreover, in the context of sports, it is always unrealistic to expect a narrow range of conduct among the participants. Knight makes much of the fact that on a previous play, she asked Jewett to play less roughly. However, we find the fact that Knight continued to play after she learned that Jewett was playing at a level of aggressiveness and roughness that was not to her liking tends to show that she indeed had voluntarily and knowingly assumed the risks of this particular touch football game when she was injured. ^[3]

II

Knight contends that even if we find the doctrine of implied reasonable assumption of the risk to be applicable here, summary judgment was inappropriate because there were questions of fact to be determined. The contention is without merit.

Code of Civil Procedure section 437c, subdivision (c), provides, in part, that "the motion for summary judgment shall be granted if all the papers submitted 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." (Italics added.) The California Supreme Court has stated that:

"The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue.... Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the trial judge hearing the motion sufficient to present a triable issue." (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

In reviewing an order granting summary judgment, "the appellate court has the duty to determine whether a triable issue of material fact exists." (Estate of Pitzer (1984) 155 Cal.App.3d 979, 986, 202 Cal.Rptr. 855.)

[297] Here, the parties dispute how the injury occurred: Jewett claims he collided with Knight as he was trying to intercept a pass, while Knight claims Jewett ran into her from behind as he was pursuing the ball carrier. While this is a factual dispute, it is immaterial to the issue of assumption of risk. Knight also posits there is a factual dispute about whether she had knowledge of the risk involved in this game because she did not appreciate the magnitude of the danger presented by Jewett's over-exuberant or aggressive level of play. This argument begs the question. The issue is whether the defendant's conduct is within the ordinary expectations of the participants in the particular sport. (Ordway, supra, 198 Cal.App.3d at p. 111, 243 Cal.Rptr. 536.) It cannot be disputed that Knight knew a touch football game entails physical contact. As discussed in part I of this opinion, Knight cannot claim Jewett's aggressive play transformed this game into something more than it was, namely a game of touch football, and negated her assumption of the risk that she might incur incidental physical injury when she voluntarily agreed to participate.

"[T]he purpose of a summary judgment 'is to expedite litigation by avoiding needless trials'...." (Burton v. Security Pacific Nat. Bank[232 Cal.App.3d 1152] (1988) 197 Cal.App.3d 972, 977, 243 Cal.Rptr. 277.) Therefore, "[i]f there are no triable issues, summary judgment is appropriate." (Ibid.) Here, we conclude [3 Cal.App.4th 1032] there are no material issues of fact on the negligence cause of action. The defense of implied reasonable assumption of the risk acts as a legal bar to this cause of action. A summary judgment motion should be granted if the moving party is entitled to judgment as a matter of law. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.) ^[4]

III

Knight contends her cause of action for assault and battery is viable and she should be allowed to proceed to trial on it.

Somehow Knight infers from the trial court's summary judgment order that it applied the assumption of the risk doctrine to bar the assault and battery doctrine as well. We agree it would be error to apply assumption of the risk, a negligence doctrine, to assault and battery, which is an intentional tort. (Ordway, supra, 198 Cal.App.3d at p. 108, 243 Cal.Rptr. 536.) However, we find no evidence the trial court applied assumption of the risk to the assault and battery cause of action. Jewett's moving papers ^[5] below did not argue assumption of the risk as a defense to the assault and battery cause of action. Rather, with respect to this cause of action, Jewett argued it must fail because Knight consented to the physical contact. ^[6]

[298] Consent is a viable defense to the tort of assault and battery. "A person may, by participating in a game, or by other conduct, consent to an act which might otherwise constitute a battery." (5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, 350, p. 438; see also BAJI No. 7.51.) Here, however, we need not dwell on whether Jewett can successfully interpose a defense of consent to Knight's assault and battery cause of action.

Inasmuch as this case reaches us on appeal from a summary judgment in favor of Jewett, it is only necessary for us to determine whether there is any possibility Knight may be able to establish her case. (Neinstein, supra, 185 Cal.App.3d at p. 179, 229 Cal.Rptr. 612.)

A requisite element of assault and battery is intent. (Prosser, supra, 9, p. 41; see also BAJI No. 7.51.) Here, however, there is no evidence that Jewett intended to injure Knight or commit a battery on her. Moreover, the record affirmatively shows Knight does not believe Jewett had the intent to step on her hand or injure her. ^[7] Without the requisite intent, Knight cannot state a cause of action for assault and battery.

A motion for summary judgment is addressed to the sound discretion of the trial court and, absent a clear showing of abuse, the judgment will not be disturbed on appeal. (Hoffman v. Citadel General Assurance, Ltd. (1987) 194 Cal.App.3d 1356 1362, 240 Cal.Rptr. 253.) On this record, we discern no abuse of discretion; the granting of summary judgment was proper.

DISPOSITION

Affirmed.

BENKE and LIM, ^[*] JJ., concur.

---------------

[1] The position of the Segoviano court is also contrary to that of Restatement of the Law, Torts 2d (1965) section 496 C, at pages 432-436, and a number of non-California authorities (see Prosser & Keaton, Torts (5th ed. 1984) 68, pp. 497-498).

[2] Subsequent published cases have adopted this position. See e.g., Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 255 Cal.Rptr. 755 (Second Appellate District); Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 260 Cal.Rptr. 1 (Second Appellate District).

[3] We also find unpersuasive Knight's arguments that cases such as Ordway, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, involving professional sports should not apply here. Ordway makes it clear the assumption of risk doctrine applies to amateur athletics as well: "[T]he individual who knowingly and voluntarily assumes a risk, whether for recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant's duty of care." (Id. at p. 104, 243 Cal.Rptr. 536.)

[4] The question of duty is decided by the court, not the jury. (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, 748, p. 83.) In Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, footnote 6, 224 Cal.Rptr. 664, 715 P.2d 624, our Supreme Court observed: " '[D]uty' is not an immutable fact of nature ' "but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." ' [Citations.] ... [A] court's task--in determining 'duty'--is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Emphasis in original.)

[5] We also note that in his answer to the complaint, Jewett pled consent as an affirmative defense to the assault and battery cause of action.

[6] Assuming arguendo that the trial court did erroneously apply assumption of the risk to the assault and battery cause of action, it would not necessarily be reversible error. "Where a motion for summary judgment has been granted and there is a sufficient ground to support the judgment entered thereon, it will be upheld regardless of the grounds on which the trial court based its decision." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, 261(d), p. 268; Snider v. Snider (1962) 200 Cal.App.2d 741, 746, 19 Cal.Rptr. 709; Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211, 223 Cal.Rptr. 645.) " 'The fact that the action of the [trial] court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety.... [A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.' " (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 267, 147 Cal.Rptr. 1.) Thus, "[i]f the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, 259, p. 266).

[7] The deposition of Kendra Knight was taken on October 19, 1988, and offered in support of the motion for summary judgment. Ms. Knight testified as follows:

"Q. Do you believe that Mr. Jewett was trying to step on your hand? Do you have any reason to believe he had any intention to hurt you?

"A. No."

[*] Assigned by the Chairperson of the Judicial Council.

[56 Cal.App.4th 113] Marjorie A. Seapy, Claremont, for Plaintiff and Appellant.

Roberts and Morgan, and Arthur K. Cunningham, Riverside, for Defendants and Respondents.

[56 Cal.App.4th 114] OPINION

McDANIEL, Associate Justice.^[*]

John Lowe (Plaintiff) was seriously injured when struck on the left side of his face by a foul ball while attending a professional baseball [65 Cal.Rptr.2d 106] game. The game was being played at "The Epicenter," home field of the Rancho Cucamonga Quakes, Class "A," minor league baseball team.

The Quakes, at their home games, feature a mascot who goes by the name of "Tremor." He is a caricature of a dinosaur, standing seven feet tall with a tail which protrudes out from the costume. Tremor was performing his antics in the stands just along the left field foul line. Tremor was behind plaintiff and had been touching him with his (Tremor's) tail. Plaintiff was thereby distracted and turned toward Tremor. In the next moment, just as plaintiff returned his attention to the playing field, he was struck by a foul ball before he could react to it.

Very serious injuries resulted from the impact. As a result, the underlying action was commenced against the California League of Professional Baseball and Valley Baseball Club, Inc., which does business as the Quakes (defendants). The case was resolved in the trial court by summary judgment entered in favor of defendants.

Defendants were able to persuade the trial court, under the doctrine of primary assumption of the risk (Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696), that defendants owed no duty to plaintiff, as a spectator, to protect him from foul balls. Such rationalization was faulty. Under Knight, defendants had a duty not to increase the inherent risks to which spectators at professional baseball games are regularly exposed and which they assume. As a result, a triable issue of fact remained, namely whether the Quakes' mascot cavorting in the stands and distracting plaintiff's attention, while the game was in progress, constituted a breach of that duty, i.e., constituted negligence in the form of increasing the inherent risk to plaintiff of being struck by a foul ball.

Thus, the trial court improperly granted the motion for summary judgment and it must be reversed accordingly.

SYNOPSIS OF TRIAL COURT PROCEEDINGS

In the action, filed after his injury, plaintiff's complaint was styled in a single count, a refreshing example of clear and concise pleading. The key [56 Cal.App.4th 115] charging allegations were contained in two paragraphs: "5. On said date and some time after the stated time and after the seventh inning, 'Tremor' the Quake's mascot, came up into the stadium in the area where plaintiff and his group were seated. Tremor was accompanied by an usher as he performed antics and entertained the crowd. Tremor is a person who wears a dinosaur costume with a long protruding tail. As John Lowe sat in his assigned seat, he was facing forward and looking toward the playing field when suddenly, and without warning or his consent, his right shoulder was touched by the tail of Tremor's costume. As he turned to his right to see who, or what, was touching him, baseball play had resumed and a batted ball, believed to be a foul ball, hit the plaintiff on the left side of his face breaking multiple facial bones. [p] 6. The Left Terrace Section, where the plaintiff was seated with his group, is located northwesterly of the left field foul ball territory, and in the direct line of foul balls passing west of the third base line. Tremor's antics and interference, while the baseball game was in play, prevented the plaintiff from being able to protect himself from any batted ball and foreseeably increased the risks to John Lowe over and above those inherent in the sport."

After an unsuccessful demurrer, defendants noticed a motion for summary judgment.^[1]

The notice contained no recitation of the grounds for the motion. However, as required by statute, defendants filed a separate statement of undisputed facts. Without the accompanying tabulation here of evidence for such statement of facts, they included: "1. On July 26, 1994, at approximately 7:05 p.m., plaintiff was in attendance at a baseball game between the Rancho Cucamonga Quakes and the San Bernardino Spirit at the Epicenter baseball facility and was seated in an area of [65 Cal.Rptr.2d 107] the left terrace. [p] 2. Plaintiff was struck by a foul ball by the Quakes mascot, Tremor [sic], who was entertaining in the area where plaintiff was seated. [p] 3. The plaintiff had been to the Epicenter on at least two previous occasions. [p] ... [p] 7. Plaintiff Lowe had witnessed foul balls being hit into the stands on many occasions. [p] 8. Plaintiff Lowe had personally witnessed at least one fan being struck by a foul ball. [p] 9. Plaintiff Lowe did not request a protected seat. [p] 10. The Epicenter did have protected seats.... [p] 11. Many of the teams in the California League of Professional Baseball have mascots. [p] 12. The mascots have become an intrical [sic] part of the game.... [p] 14. The Epicenter stadium has approximately 2500 seats which are protected by screens."

[56 Cal.App.4th 116] As evidentiary support for their motion, defendants filed the declaration of Joseph M. Gagliardi, president of the California League of Professional Baseball. Such declaration pointed out that seven of the ten teams in the California League have mascots. Among other things, the Gagliardi declaration stated, "[m]ost of the mascots have taken on a specific caricature such as Disney/Warner Brothers animations for each team. They are personable in their duties and responsibilities and try to make as much contact with the public to keep fan interest active. Fans have become accustomed to having the mascots entertain them. The mascots perform their routines nightly on the playing field and in the public seating area. [p] While the clubs encourage the mascots' interaction, especially with the young children so that they are comfortable at a ballpark game situation, the mascots' activities include keeping the fans informed, generating fan participation in promotions/advertisements, and helping with crowd control. Greeting the customer is an essential part of the ball club's public relations efforts." Defendants also filed extended excerpts of plaintiff's deposition, supported by the authenticating declaration of James L. Price, counsel for plaintiff. These deposition excerpts provide an insight into how plaintiff was injured:

"Q ... Where was the mascot at the time that the foul ball was hit?

"A Directly behind me.

. . . . .

"Q How long had the mascot been directly behind you at the time you were hit?

"A I would say probably two minutes.

"Q Was the mascot standing in the same place for that long?

"A He was moving around back and forth. But whatever he was doing, he was doing it directly behind my seat.

"Q So he was at the row or in the row behind your row?

"A Our row of seats backed up to an aisle. He was standing in the aisle directly behind my seat.

. . . . .

"Q And at the time that you were hit, the mascot was standing behind your row of seats in the aisle?

[56 Cal.App.4th 117] "A Yes.

"Q Did any part of the mascot's costume or person touch you before you were hit?

"A Yes.

"Q And what or how were you touched by this mascot?

"A With his tail.

"Q When did that occur in relationship to when you were hit by the ball?

"A Well, during that approximate two-minute span he was doing his act. And I felt this bam, bam, bam, on the back of my head and shoulders, and I turned around to see what he was doing....

"Q You felt something on your shoulders?

"A Right.

"Q How do you know it was the tail that tapped you on the shoulder?

"A I turned around and looked.

. . . . .

"Q And when you turned around and looked, what did you see?

"A Well, I noticed that he was doing his antics to the crowd that was in the immediate area. And I saw that as he was turning his body, his tail was hitting me.

[65 Cal.Rptr.2d 108] "Q Is that something that you actually saw or is that something that you assumed that the tail was hitting you?

"A No, I saw the tail.

. . . . .

[p] "I could see the stump of the tail hitting me....

. . . . .

"Q All right. Were you annoyed by the mascot's tail tapping you on the shoulder?

[56 Cal.App.4th 118] "A Initially, no, but as it continued, it was a little bothersome.

. . . . .

"Q Where were you looking at the moment the ball was hit?

"A I had just turned my head towards the field as the ball arrived.

"Q And in terms of timing, was it almost instantaneous that you turned your head to the field and got hit?

"A Yes.

. . . . .

"Q Where were you looking immediately before you turned your head toward the field?

"A Up at Tremor.

. . . . .

"Q And at that time you were looking at Tremor immediately before turning your head back to the field and getting hit, was the reason that you were looking at Tremor that his tail had just tapped you on the shoulder again and you turned around and looked?

"A Yes.

. . . . .

"Q Were you eating or drinking anything at that time?

"A I was not eating anything, there was no drink in my hand...."

Plaintiff filed opposition to the motion for summary judgment. Such opposition included a response to defendants' undisputed statement of facts. As to defendants' statement No. 2, namely that "plaintiff was struck by a foul ball by the Quakes mascot, Tremor, who was entertaining in the area where plaintiff was seated," plaintiff disputed it. In direct response, plaintiff declared, "[p]laintiff's complaint is mis-stated [sic]. Plaintiff was touched by the mascot, Tremor, without warning or consent, after baseball play resumed. Plaintiff was hit in the face by a foul ball as he turned to see who or what was touching him in the area of his right shoulder. As he turned his head [56 Cal.App.4th 119] back, a batted baseball hit the left side of the plaintiff's face breaking multiple facial bones. Paragraph five of plaintiff's complaint."

As to defendants' statement No. 12, namely that "[t]he mascots have become an intrical [sic] part of the game (per declaration of Joseph Gagliardi)," plaintiff disputed it. In direct response, plaintiff declared, "[t]he statement of Joe Gagliardi is a conclusion of a non-expert. It is also unintelligible since there is no such word as 'intrical' in Webster's Abriged [sic] Dictionary. According to the Press Enterprise article page 2, EXHIBIT 'D[,'] mascots are needed to make money ... but are not essential to the baseball game. Admission number 4, Mr. Lowe's Request For Admissions, Set One, both defendants admit the game can be played without the mascot being there. [ ]EXHIBIT 'E[.'] A mascot is a marketing tool, not an integral part of the game of baseball. [ ]Deposition of Mark Monninger [Tremor] page 15, Lines 4 through 14. EXHIBIT 'F[.']"

Otherwise, plaintiff objected to the declaration of Joseph Gagliardi, particularly that " '[t]he mascots have become an intrical [sic] part of the game.' " The objection noted further that "[t]his is hearsay without any applicable exception. In addition, non-experts, such as Mr. Gagliardi, are required to state facts rather than conclusions, Chatman v. Alameda County Flood Control [etc.] Dist[.] (1986) 183 Cal.App.3d 424, 228 Cal.Rptr. 257, 260. Plaintiff asks that Mr. Gagliardi's conclusions not be allowed into evidence. 2. Objection is made as to the [undated] article from the Riverside Press Enterprise newspaper. This is hearsay in that defendants are attempting to use this article to prove a matter here in dispute. This too is hearsay without any applicable exception. Plaintiff asks that the newspaper article not be allowed into evidence, or, in the alternative, [65 Cal.Rptr.2d 109] that it not be accepted as proof of any disputed matter which is at issue."

In the points and authorities filed in opposition to the motion, it was stated that "[f]or a period of at least two minutes, Tremor whacked the back of Mr. Lowe's head; back and shoulder with the tail portion of the Tremor costume. Finally, after being touched repeatedly in an annoying and unprivileged manner, Mr. Lowe turned around and saw that he was indeed being touched at that moment by the tail of the Tremor costume. As Mr. Lowe turned his face back toward the field, he was not aware that the game had again resumed and he was hit in the face by a line drive foul ball. The foul ball fractured numerous facial bones and caused dental injuries."

Otherwise, the points and authorities observed, "[t]he California Supreme Court has stated (in the context of injuries to participants) that a defendant generally has no duty to eliminate, or protect a plaintiff from risks inherent [56 Cal.App.4th 120] to the sport itself, but has only a duty not to increase those risks, Knight [,] supra[,] [sic] at pages 315 and 316[, 11 Cal.Rptr.2d 2, 834 P.2d 696]. A mascot is not integral to the sport of baseball, as is required by Knight [,] supra[,] [sic]. The unsupported statement of Mr. Gagliardi is nothing more than a self-serving statement of a party defendant. What a mascot is, according to the deposition of Mark Monninger [Tremor] at page 14, lines 10 through 25, see EXHIBIT 'A' page number 1, is a marketing tool or simply entertainment. Mark Monninger states in his deposition that he was sick two days during the 1994 season. The baseball game went on without him there[,] page 15[,] lines 4 through 15. Defendants['] Admission number 4 is that the game can be played without Tremor being present. They further [a]dmit in Admission number 10 that Tremor could entertain without even going into the stands, EXHIBIT 'B[.'] If that safety practice had been in place during 1994, Mr. Lowe would not have been interfered with and injured by the foul ball."

Further, within the parameters of the motion for summary judgment, plaintiff pointed out that "defendants have not addressed the issues raised in paragraph Six of Mr. Lowe's Complaint." That paragraph, earlier quoted, alleged, "6. The Left Terrace Section, where the plaintiff was seated with his group, is located northwesterly of the left field foul ball territory, and in the direct line of foul balls passing west of the third base line. Tremor's antics and interference, while the baseball game was in play, prevented the plaintiff from being able to protect himself from any batted ball and foreseeably increased the risks to John Lowe over and above those inherent in the sport."

Defendants replied to plaintiff's opposition. Such reply contained no evidentiary filings; it consisted only of additional points and authorities. The thrust of the filings was to argue that mascots have long been an "integral" part of large publicly attended sporting events.

With these filings before it, the trial court entertained oral argument of defendants' motion. At the outset, the court announced its tentative ruling. "The Defendant's [sic] Motion for Summary Judgment is granted. There are no triable issues of material fact. Plaintiff's claim is barred by the doctrine of primary assumption of the risk. Where a spectator at a ball game has chosen not to sit in a screened area, that person assumes the risk of being hit by a foul ball. I think it falls within the case of Neinstein versus Los Angeles Dodgers, Inc. [(1986)], located at 185 Cal.App.3d 176[, 229 Cal.Rptr. 612]." Despite extended argument by counsel for plaintiff, the tentative order above noted became the final order of the court.

A minute order was issued which indicated that the motion was granted, there being "no triable issue of material facts." Thereafter, a written judgment of dismissal, reflecting the minute order, was signed and entered. It [56 Cal.App.4th 121] recited that "[s]aid dismissal is premised upon the court's finding that there is no triable issue as to material fact, and that the moving parties are entitled to a judgment as a matter of law." This appeal followed.

DISCUSSION

In pursuing his appeal, plaintiff, challenging to the propriety of the summary judgment, assigned as trial court error: (1) its [65 Cal.Rptr.2d 110] improper application of the doctrine of the primary assumption of the risk; and (2) its reliance on a New York case, Clapman v. City of New York (1984) 63 N.Y.2d 669, 479 N.Y.S.2d 515, 468 N.E.2d 697.

In responding to the appeal, defendants rely on a collection of cases which are readily distinguishable on their facts from those facts in this record and hence, because they are wholly inapposite, require no further discussion or analysis.

We turn then to a consideration of the rationale relied on by plaintiff. In so doing, we are reminded that it is a summary judgment which is here for review. Such review is independent of that in the trial court but mirrors exactly the scenario followed there. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674.) That scenario is guided by precise statutory prescriptions set forth in section 437c of the Code of Civil Procedure. Of key significance are subdivisions (o)(2) and (c).

Subdivision (o)(2) provides in pertinent part, "[a] defendant ... has met his or her burden of showing that [the plaintiff's] cause of action has no merit if that party has shown ... that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to ... a defense thereto."

Subdivision (c) provides that, "[t]he motion for summary judgment shall be granted if all the papers submitted 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Italics added.)

[56 Cal.App.4th 122] Under this prescription, the first step is an analysis of the pleadings, i.e., the complaint and answer, including any affirmative defenses that may be contained therein. "The pleadings define the issues to be considered on a motion for summary judgment." (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252, 38 Cal.Rptr.2d 65.)

The next step in the analysis calls for an evaluation of the moving defendant's effort to meet the burden of showing that plaintiff's cause of action has no merit or that there is a complete defense to it. This showing can also rely on filings by plaintiff in opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743, 750-751, 41 Cal.Rptr.2d 719.) In any event, once a prima facie showing is made and hence that the "burden" has been met, it shifts to the plaintiff to show that a triable issue of material fact exists within the framework of that fixed by the pleadings. (Code Civ. Proc., § 437c, subd. (o)(2).)

Once the burden has shifted, it must next be determined if the filings in opposition succeeded in raising a triable issue of material fact. If they did, the motion must be denied; if they did not, the motion must be granted. (Code Civ. Proc., § 437c, subd. (c); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal.Rptr.2d 653.)

As earlier noted, our review precisely mirrors what occurs in the trial court, i.e., we make a de novo evaluation which, after it be shown that there are no disputed issues of material fact, requires a legal determination of the moving party's entitlement to judgment. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844, 30 Cal.Rptr.2d 768.)

In compliance with the foregoing, we turn to the first step in the system of analysis above fashioned, i.e., to define the issues framed by the pleadings. With regard to the record provided us, this step is somewhat difficult to perform. As earlier noted, there was no copy of defendants' answer contained in the clerk's transcript. However, we can extrapolate from other filings that all of the allegations describing the gravamen of plaintiff's grievance were denied. Such grievance [65 Cal.Rptr.2d 111] can be found in paragraph six of the complaint as variously quoted above. In sum, those allegations pointed out that Tremor's antics in hitting plaintiff with its tail distracted plaintiff and "prevented plaintiff from being able to protect himself from any batted ball and foreseeably increased the risk to John Lowe over and above those inherent in the sport."

Otherwise, we assume that the answer introduced into the pleading mix the affirmative defense of the doctrine of primary assumption of the risk. We [56 Cal.App.4th 123] assume such based on defendants' points and authorities found at page 72 of the clerk's transcript.

As a practical matter, it appears to us that paragraph six actually anticipated the possibility of defendants' urging the doctrine of the primary assumption of the risk; hence, we shall treat such conclusion as framing the dispositive issue of fact, namely whether the mascot's antics and their resulting distraction of the plaintiff operated to increase the inherent risks assumed by a spectator at a baseball game. In this regard, as plainly stated in Knight, "... it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport." (Knight v. Jewett, supra, 3 Cal.4th 296, 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The rule is no different in instances involving spectators.

The next step in the summary judgment analysis is to determine whether defendants' evidentiary filings in support of their motion were sufficient to provide the factual basis for making their affirmative defense available and thereby shifting the burden to plaintiff to demonstrate a triable issue of fact with reference thereto. (Code Civ. Proc., § 437c, subd. (o)(2).)

As indicated earlier in the opinion, as part of the synopsis of the trial court proceedings, the only evidentiary filings by defendants in support of their motion were: (1) the declaration of Joseph Gagliardi; (2) a copy of a clipping from the Riverside Press Enterprise about mascots; and (3) excerpts of plaintiff's deposition. As prescribed by Knight, the burden to be surmounted by such filings was to show that any risk to spectators caused by the antics of the mascot did not operate to increase those inherent risks to which spectators at baseball games are unavoidably exposed. In other words, the key inquiry here is whether the risk which led to plaintiff's injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game. In the first instance, foul balls hit into the spectators' area clearly create a risk of injury. If such foul balls were to be eliminated, it would be impossible to play the game. Thus, foul balls represent an inherent risk to spectators attending baseball games. Under Knight, such risk is assumed. Can the same thing be said about the antics of the mascot? We think not. Actually, the declaration of Mark Monninger, the person who dressed up as Tremor, recounted that there were occasional games played when he was not there. In view of this testimony, as a matter of law, we hold that the antics of the mascot are not an essential or integral part of the playing of a baseball game. In short, the game can be played in the absence of such antics. Moreover, whether such antics increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.

Our view of the entire record leads to the conclusion that defendants offered nothing in the way of either relevant or competent evidence to [56 Cal.App.4th 124] resolve prima facie the dispositive issue of fact above recited; thus they failed to shift to plaintiff the burden contemplated by section 437c, subdivision (o)(2) of the Code of Civil Procedure. In this posture, the trial court was presented with a circumstance illustrated by Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 53 Cal.Rptr.2d 635. In that case, a summary judgment was reversed by the reviewing court. Relying on Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 41 Cal.Rptr.2d 740, the Bashi court stated, " '[w]here the evidence presented by defendant does not support judgment in [their] favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.' " (Id. at p. 1318, 53 Cal.Rptr.2d 635.) That is what the record shows here. (See also Parsons Manufacturing Corp. v. Superior Court (1984) 156 Cal.App.3d 1151, 1157, 203 Cal.Rptr. [65 Cal.Rptr.2d 112] 419.) In sum, because the burden never shifted to plaintiff requiring him to demonstrate a triable issue of material fact, it is unnecessary to pursue the analysis further.

Even so, we note further, under the holding in Neinstein v. Los Angeles Dodgers, supra, 185 Cal.App.3d 176, 229 Cal.Rptr. 612, absent any distraction by the mascot, that plaintiff could have assumed the risk. Justice Compton, writing in Neinstein, observed that the plaintiff "voluntarily elected to sit in a seat which was clearly unprotected by any form of screening.... She was sufficiently warned of the risk by common knowledge of the nature of the sport.... The Dodgers were under no duty to do anything further to protect her from the hazard." (Id. at p. 184, 229 Cal.Rptr. 612.) However, in Neinstein, there was no mascot bothering the plaintiff and thus distracting her attention from the playing field. Thus, Neinstein is readily distinguishable.

The same can be said of the Clapman case decided by the Court of Appeals of New York. In that case, a spectator at Yankee Stadium was struck by a foul ball. He contended that a vendor moving in front of him obscured his view. As to this contention, the court said that "respondents had no duty to insure that vendors moving about the stadium did not interfere with Clapman's view." (Clapman v. City of New York, supra, 63 N.Y.2d 669, 479 N.Y.S.2d 515, 468 N.E.2d 697, 698.) That is not this case. In Clapman, the plaintiff at all times was facing the field of play. Here, plaintiff, because of the distraction, had turned away. This presents a substantially different set of facts, recognized at once by anyone who has ever attended a professional baseball game.

Based upon the foregoing analysis, we hold that the trial court improperly granted the motion for summary judgment.

[56 Cal.App.4th 125] DISPOSITION

The judgment is reversed with directions to the trial court to vacate its order of January 7, 1996, and to enter a new and different order denying defendants' motion for summary judgment.

RICHLI, Acting P.J., and WARD, J., concur.

[*] Retired Associate Justice of the Court of Appeal, Fourth District, sitting under assignment by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] The record on appeal does not contain a copy of an answer to the complaint; however, we assume that an answer was filed. It would not have been possible to move for summary judgment unless the case were at issue.

Negligence — amusements — dangers obviously inherent in sport accepted by those who take part — visitor to amusement park injured by fall from moving belt — negligence not predicated on testimony that he felt a jerk, where only risk was a fall and that was invited and foreseen — testimony of nurse that she had attended others injured at the sport not sufficient to show it perilous where used by a great number — verdict not sustained upon theory of liability different from that upon which case was submitted.

1. One who takes part in a sport accepts the dangers that inhere in it so far as they are obvious and necessary.

2. Where, therefore, a visitor to an amusement park, after ¦watching the operation of a moving belt which caused many who rode thereon either to jump or fall, stepped on the belt and, as he did so, felt what he describes as a sudden jerk and was thrown to the floor, receiving injury, negligence cannot be predicated merely upon the statement of his sensations. Whether the movement of the belt was uniform or irregular, the risk at greatest was a fall and that was the hazard invited and foreseen.

3. Testimony of a nurse employed at an emergency hospital, maintained in connection with the park, that she had attended patrons who had been injured at the same sport, though none seriously, is not enough to show that the game was a trap for the unwary, too perilous to be endured, where it appears there were two hundred and fifty thousand visitors thereto in one year.

4. A verdict may not be sustained upon a theory of liability different from that defined by the charge of the court and the bill of particulars limiting the complaint.

Murphy v. Steeplechase Amusement Co., Inc., 224 App. Div. 832, reversed.

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1928, affirming a judgment in favor of plaintiff entered upon a verdict.

Gardiner Conroy and Reginald S. Hardy for appellant. There was no proof of any negligence on the part of the appellant. (0'Toole v. Thousand Island Park Assn,, 206 App. Div. 31; Tryon v. Chalmers, 205 App. Div. 816; Dunning v. Jacobs, 15 Misc. Rep. 85; Flynn v. Central E. R. Co. of N. J., 142 N. Y. 439; Dwyer v. Hills Brothers Co., 79 App. Div. 45; Horton v. Vulcan, 13 App. Div. 508; Camp v. Wood, 76 N. Y. 92; Hart v. Grennell, 122 N. Y. 371; Larking. O'Neill, 119 N. Y. 221; Essig v. Lumber Operating & Mfg. Co., 183 App. Div. 198.) The risks incident to the " flopper " were open and obvious and assumed by the respondent as a matter of law. (Knott-nerus v. North Park Street R. Co., 93 Mich. 348; Lumsden v. Thompson Scenic Railway Co., 130 App. Div. 209; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310; Matter of Moloney y. Cunard Steamship Co., 217 N. Y. 278.)

Charles Kennedy for respondent. The negligence of the appellant was clearly established. (Barrett v. Lake Ontario Beach Co., 174 N. Y. 310; Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297; Cleveland v. Steamboat Co., 125 N. Y. 299; Donnelly v. City of Rochester, 166 N. Y. 315; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310.) The plaintiff did not assume the risk of defendant's negligence. (Penn Co. v. Backes, 133 111. 255; Dowd v. N. Y., 0. & W. R. R. Co., 170 N. Y. 459; Lumsden v. Thompson Scenic R. R. Co., 130 App. Div. 209.)

CARDOZO, Ch. J. The defendant, Steeplechase Amusement Company, maintains an amusement park at Coney Island, New York.

One of the supposed attractions is known as " The Flopper." It is a moving belt, running upward on an inclined plane, on which passengers sit or stand. Many of them are unable to keep their feet because of the movement of the belt, and are thrown backward or aside. The belt runs in a groove, with padded walls on either side to a height of four feet, and with padded flooring beyond the walls at the same angle as the belt. An electric motor, driven by current furnished by the Brooklyn Edison Company, supplies the needed power.

Plaintiff, a vigorous young man, visited the park with friends. One of them, a young woman, now his wife, stepped upon the moving belt. Plaintiff followed and stepped behind her. As he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in front and also friends behind him were thrown at the same time. Something more was here, as every one understood, than the slowly-moving escalator that is common in shops and public places. A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name above the gate, the Flopper, was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others. We are told by the plaintiff's wife that the members of her party stood looking at the sport before joining in it themselves. Some aboard the belt were able, as she viewed them, to sit down with decorum or even to stand and keep their footing; others jumped or fell. The tumbling bodies and the screams and laughter supplied the merriment and fun. " I took a chance," she said when asked whether she thought that a fall might be expected.

Plaintiff took the chance with her, but, less lucky than his companions, suffered a fracture of a knee cap. He states in his complaint that the belt was dangerous to life and limb in that it stopped and started violently and suddenly and was not properly equipped to prevent injuries to persons who were using it without knowledge of its dangers, and in a bill of particulars he adds that it was operated at a fast and dangerous rate of speed and was not supplied with a proper railing, guard or other device to prevent a fall therefrom. No other negligence is charged.

We see no adequate basis for a finding that the belt was out of order. It was already in motion when the plaintiff put his foot on it. He cannot help himself to a verdict in such circumstances by the addition of the facile comment that it threw him with a jerk. One who steps upon a moving belt and finds his heels above his head is in no position to discriminate with nicety between the successive stages of the shock, between the jerk which is a cause and the jerk, accompanying the fall, as an instantaneous effect. There is evidence for the defendant that power was transmitted smoothly, and could not be transmitted otherwise. If the movement was spasmodic, it was an unexplained and, it seems, an inexplicable departure from the normal workings of the mechanism. An aberration so extraordinary, if it is to lay the basis for a verdict, should rest on something firmer than a mere descriptive epithet, a summary of the sensations of a tense and crowded moment (Matter of Case, 214 N. Y. 199; Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13, 15; 164 N. Y. 586; Foley v. Boston & Maine R. R. Co., 193 Mass. 332, 335; Work v. Boston El. Ry. Co., 207 Mass. 447, 448; N. & W. Ry. Co. v. Birchett, 252 Fed. Rep. 512, 515). But the jerk, if it were established, would add little to the case. Whether the movement of the belt was uniform or irregular, the risk at greatest was a fall. This was the very hazard that was invited and foreseen (Lumsden v. Thompson Scenic Ry. Co., 130 App. Div. 209, 212, 213).

Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball (Pollock, Torts [11th ed.], p. 171; Lumsden v. Thompson Scenic Ry. Co., supra; Godfrey v. Conn. Co., 98 Conn. 63; Johnson v. City of N. Y., 186 N. Y. 139, 148; McFarlane v. City of Niagara Falls, 247 N. Y. 340,349; cf. 1 Beven, Negligence, 787; Bohlen, Studies in the Law of Torts, p. 443) The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.

A different case would be here if the dangers inherent in the sport were obscure or unobserved (Godfrey v. Conn. Co., supra; TantiUo v. Goldstein Bros. Amusement Co., 248 N. Y. 286), or so serious as to justify the belief that precautions of some kind must have been taken to avert them (cf. O'Callaghan v. Dellwood Park Co., 242 111. 336). Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe. A different case there would also be if the accidents had been so many as to show that the game in its inherent nature was too dangerous to be continued without change. The president of the amusement company says that there had never been such an accident before. A nurse employed at an emergency hospital maintained in connection with the park contradicts him to some extent. She says that on other occasions she had attended patrons of the park who had been injured at the Flopper, how many she could not say. None, however, had been badly injured or had suffered broken bones. Such testimony is not enough to show that the game was a trap for the unwary, too perilous to be endured. According to the defendant's estimate, two hundred and fifty thousand visitors were at the Flopper in a year. Some quota of accidents was to be looked for in so great a mass. One might as well say that a skating rink should be abandoned because skaters sometimes fall.

There is testimony by the plaintiff that he fell upon wood, and not upon a canvas padding. He is strongly contradicted by the photographs and by the witnesses for the defendant, and is without corroboration in the testimony of his companions who were witnesses in his behalf. If his observation was correct, there was a defect in the equipment, and one not obvious or known. The padding should have been kept in repair to break the force of any fall. The case did not go to the jury, however, upon any such theory of the defendant's liability, nor is the defect fairly suggested by the plaintiff's bill of particulars, which limits his complaint. The case went to the jury upon the theory that negligence was dependent upon a sharp and sudden jerk.

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

POUND, CRANE, LEHMAN, KELLOGG and HUBBS, JJ., concur; O'BRIEN, J., dissents on the authority of Tantillo v. Goldstein Brothers Amusement Co. (248 N. Y. 286).

Judgments reversed, etc.

[103 Wn.2d 646] [695 P.2d 118] Davies, Roberts, Reid, Anderson & Wacker, Denny Anderson, Seattle, for appellant.

Williams, Lanza, Kastner & Gibbs, Mary H. Spillane, Seattle, for respondents.

DOLLIVER, Justice.

This is an appeal from a wrongful death [103 Wn.2d 647] medical malpractice action arising out of the bleeding death of a hospital patient who, for religious reasons, refused a blood transfusion. Plaintiff, the deceased's husband and personal representative, appeals the trial court's judgment on the verdict in which the jury reduced plaintiff's wrongful death damages by 75 percent based on an assumption of risk by the Shorters that Mrs. Shorter would die from bleeding. The defendant doctor appeals the judgment alleging that a plaintiff-signed hospital release form completely barred the wrongful death action. Alternatively, defendant asks that we affirm the trial court's judgment on the verdict. Defendant does not appeal the special verdict in which the jury found the defendant negligent.

The deceased, Doreen Shorter, was a Jehovah's Witness, as is her surviving husband, Elmer Shorter. Jehovah's Witnesses are prohibited by their religious doctrine from receiving blood transfusions.

Doreen Shorter became pregnant late in the summer of 1979. In October of 1979, she consulted with the defendant, Dr. Robert E. Drury, a family practitioner. Dr. Drury diagnosed Mrs. Shorter as having had a "missed abortion". A missed abortion occurs when the fetus dies and the uterus fails to discharge it.

When a fetus dies, it is medically prudent to evacuate the uterus in order to guard against infection. To cleanse the uterus, Dr. Shorter recommended a "dilation and curettage" (D and C). There are three alternative ways to perform this operation. The first is with a curette, a metal instrument which has a sharp-edged hoop on the end of it. The second, commonly used in an abortion, involves the use of a suction device. The third alternative is by use of vaginal suppositories containing prostaglandin, a chemical that causes artificial labor contractions. Dr. Drury chose to use curettes.

Although the D and C is a routine medical procedure, there is a risk of bleeding. Each of the three principal methods for performing the D and C presented, to a varying degree, the risk of bleeding. The record below reflects [103 Wn.2d 648] that the curette method which Dr. Drury selected posed the highest degree of puncture-caused bleeding risk due to the sharpness of the instrument. The record also reflects, however, that no matter how the D and C is performed, there is always the possibility of blood loss.

Dr. Drury described the D and C procedure to Mr. and Mrs. Shorter. He advised her there was a possibility of bleeding and perforation of the uterus. Dr. Drury did not discuss any alternate methods in which the D and C may be performed. Examination of Mr. Shorter at trial revealed he was aware that the D and C posed the possibility, albeit remote, of internal bleeding.

The day before she was scheduled to receive the D and C from Dr. Drury, Mrs. Shorter sought a second opinion from Dr. Alan Ott. Mrs. Shorter advised Dr. Ott of Dr. Drury's intention to perform the D and C. She told Dr. Ott she was a Jehovah's Witness. Although he confirmed the D and C was the appropriate treatment, Dr. Ott did not discuss with Mrs. Shorter the particular method which should be used to perform it. He did, however, advise Mrs. Shorter that "she could certainly bleed during the procedure" and at trial confirmed she was aware of that possibility. Dr. Ott testified Mrs. Shorter responded to his warning by saying "she had faith in the Lord and that things would work out ..."At approximately 6 a.m. on November 30, Mrs. Shorter was accompanied by her husband to Everett General Hospital. At the hospital the Shorters signed the following [695 P.2d 119] form (underlining after heading indicates blanks in form which were completed in handwriting):

                    GENERAL HOSPITAL OF EVERETT
                REFUSAL TO PERMIT BLOOD TRANSFUSION
                -----------------------------------
Date November 30, 1979             Hour 6:15 a.m.
     -----------------                  ---------
I request that no blood or blood derivatives be administered to
Dorreen V. Shorter
------------------
during this hospitalization.  I hereby release the hospital, its
personnel, and the attending physician from any responsibility
whatever for unfavorable reactions or any untoward results due
to my refusal to permit the use of blood or its derivatives and I
fully understand the possible consequences of such refusal on my
part.
                       (/s/ Doreen Shorter)
                      ----------------------
                              Patient
                        (/s/ Elmer Shorter)
                      ----------------------
                     Patient's Husband or Wife

The operation did not go smoothly. Approximately 1 hour after surgery, Mrs. Shorter began to bleed internally and go into shock. Emergency exploratory surgery conducted by other surgeons revealed Dr. Drury had severely lacerated Mrs. Shorter's uterus when he was probing with the curette.

Mrs. Shorter began to bleed profusely. She continued to refuse to authorize a transfusion despite repeated warnings by the doctors she would likely die due to blood loss. Mrs. Shorter was coherent at the time she refused to accept blood. While the surgeons repaired Mrs. Shorter's perforated uterus and abdomen, Dr. Drury and several other doctors pleaded with Mr. Shorter to permit them to transfuse blood into Mrs. Shorter. He likewise refused. Mrs. Shorter bled to death. Doctors for both parties agreed a transfusion in substantial probability would have saved Doreen Shorter's life.

Mr. Shorter thereafter brought this wrongful death action alleging Dr. Drury's negligence proximately caused Mrs. Shorter's death; the complaint did not allege a survival cause of action. The release was admitted into evidence over plaintiff's objection. Plaintiff took exception to jury instructions numbered 13 and 13A which dealt with assumption of the risk.

The jury found Dr. Drury negligent and that his negligence was "a proximate cause of the death of Doreen Shorter". Damages were found to be $412,000. The jury determined, however, that Mr. and/or Mrs. Shorter "knowingly and voluntarily" assumed the risk of bleeding to death and attributed 75 percent of the fault for her death [103 Wn.2d 650] to her and her husband's refusal to authorize or accept a blood transfusion. Plaintiff was awarded judgment of $103,000. Both parties moved for judgment notwithstanding the verdict. The trial court denied both motions. Plaintiff appealed and defendant cross-appealed to the Court of Appeals, which certified the case pursuant to RCW 2.06.030(d).

The three issues before us concern the admissibility of the "Refusal to Permit Blood Transfusion" (refusal); whether assumption of the risk is a valid defense and if so, whether there is sufficient evidence for the jury to have found the risk was assumed by the Shorters; and whether the submission of the issue of assumption of the risk to the jury violated the free exercise clause of the First Amendment. The finding of negligence by Dr. Drury is not appealed by defendant.

I

Plaintiff argues the purpose of the refusal was only to release the defendant doctor from liability for not transfusing blood into Mrs. Shorter had she required blood during the course of a nonnegligently performed operation. He further asserts the refusal as it applies to the present case violates public policy since it would release Dr. Drury from the consequences of his negligence.

Defendant concedes a survival action filed on behalf of Mrs. Shorter for her negligently inflicted injuries would not be barred by the refusal since enforcement would violate public policy. Defendant argues, however, the refusal does not release the doctor for his negligence but only for the consequences arising out of Mrs. Shorter's voluntary refusal to accept blood, which in this case was death.

While the rule announced by this court is that contracts against liability for negligence are valid except in those cases [695 P.2d 120] where the public interest is involved ( McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093 (1971)), the refusal does not address the negligence of Dr. Drury. This being so it cannot be considered as a release from liability [103 Wn.2d 651] for negligence. Cf. Hewitt v. Miller, 11 Wash.App. 72, 521 P.2d 244 (1974). Whether a release which specifically absolved Dr. Drury from his negligence would have been valid or against public policy need not be decided and we reserve any comment on that issue. See Blide v. Rainier Mountaineering, Inc., 30 Wash.App. 571, 573-74, 636 P.2d 492 (1981); Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 383 P.2d 441, 32 Cal.Rptr. 33 (1963); Annot., Validity and Construction of Contract Exempting Hospital or Doctor from Liability for Negligence to Patient, 6 A.L.R.3d 704, 705 (1966 and Supp.1984).

Plaintiff categorizes the refusal as an all or nothing instrument. He claims that if it is a release of liability for negligence it is void as against public policy and if it is a release of liability where a transfusion is required because of nonnegligent treatment then it is irrelevant. We have already stated the document cannot be considered as a release from liability for negligence. The document is more, however, than a simple declaration that the signer would refuse blood only if there was no negligence by Dr. Drury. It is a specific request that no blood or blood derivatives be administered to Mrs. Shorter. The attending physician is released from "any responsibility whatever for unfavorable reactions or any untoward results due to my refusal to permit the use of blood or its derivatives." (Italics ours.) The release signed by the Shorters further stated: "I fully understand the possible consequences of such refusal on my part."

We find the refusal to be valid. There was sufficient evidence for the jury to find it was not signed unwittingly but rather voluntarily. See Baker v. Seattle, 79 Wash.2d 198, 484 P.2d 405 (1971); Restatement (Second) of Torts § 496B (1965). The record shows Dr. Ott advised Mrs. Shorter that her refusal to accept a transfusion could place her life in jeopardy if she bled from a D and C. Dr. Ott further testified there was a risk of bleeding with a routine D and C and that if she then refused a transfusion she might die. Specifically, Dr. Ott stated he advised Mrs. Shorter that if a [103 Wn.2d 652] perforation occurred at the time of the D and C she would be in grave jeopardy. He also stated Mrs. Shorter said she knew this but remained firm in her conviction to refuse a blood transfusion. Knowing this, and in response to their religious beliefs, the Shorters signed the refusal. In refusing a blood transfusion, the Shorters were acting under the compulsion of circumstances. The compulsion, however, was created by the religious convictions of the Shorters not by the tortious conduct of defendant. See Comments b & d, Restatement (Second) of Torts § 496E (1965).

We also hold the release was not against public policy. We emphasize again the release did not exculpate Dr. Drury from his negligence in performing the surgery. Rather, it was an agreement that Mrs. Shorter should receive no blood or blood derivatives. The cases cited by defendant, Tunkl v. Regents of Univ. of Cal., supra; Colton v. New York Hosp., 98 Misc.2d 957, 414 N.Y.S.2d 866 (1979); Olson v. Molzen, 558 S.W.2d 429 (Tenn.1977), all refer to exculpatory clauses which release a physician or hospital from all liability for negligence. The Shorters specifically accepted the risk which might flow from a refusal to accept blood. Given the particular problems faced when a patient on religious grounds refuses to permit necessary or advisable blood transfusions, we believe the use of a release such as signed here is appropriate. See Ford, Refusal of Blood Transfusions by Jehovah's Witnesses, 10 Cath.Law. 212 (1964). Requiring physicians or hospitals to obtain a court order would be cumbersome and impractical. Furthermore, it might subject the hospital or physician to an action under 42 U.S.C. § 1983. See Holmes v. Silver Cross Hosp., 340 F.Supp. 125 (N.D.Ill.1972). The alternative of physicians or hospitals refusing [695 P.2d 121] to care for Jehovah's Witnesses is repugnant in a society which attempts to make medical care available to all its members.

We believe the procedure used here, the voluntary execution of a document protecting the physician and hospital and the patient is an appropriate alternative and not contrary to the public interest.

[103 Wn.2d 653] If the refusal is held valid, defendant asserts it acts as a complete bar to plaintiff's wrongful death claim. We disagree. While Mrs. Shorter accepted the consequences resulting from a refusal to receive a blood transfusion, she did not accept the consequences of Dr. Drury's negligence which was, as the jury found, a proximate cause of Mrs. Shorter's death. Defendant was not released from his negligence. We next consider the impact of the doctrine of assumption of the risk on this negligence.

II

Plaintiff argues the trial court erred in admitting jury instructions 13 and 13A on the ground that assumption of the risk is no longer a recognized defense in Washington, except in products liability. Plaintiff alternatively argues that even if assumption of the risk remains a viable defense, there was no evidence in the present case from which the jury may have found that Mrs. Shorter, in signing the release form, knowingly and voluntarily assumed the risk that Dr. Drury would negligently perform the D and C, proximately causing her death.

Defendant argues the assumption of the risk doctrine remains viable after enactment of the former comparative negligence statute (RCW 4.22) in cases in which the plaintiff expressly, as opposed to impliedly, assumes the risk of the defendant's negligence. He further asserts Mrs. Shorter, when she signed the blood transfusion release, expressly assumed the risk of bleeding to death even though her chances of bleeding to death may have been increased by his negligence.

Jury instruction 13 provided:

Assumption of the risk is conduct on the part of a person claiming injury or damage which is a proximate cause of the injury or damage complained of.

If you find that Mr. or Mrs. Shorter assumed a risk which was a proximate cause of Mrs. Shorter's death, you must determine the degree of such conduct, expressed as a percentage, attributable to Mr. & Mrs. Shorter.... Using 100% as to the total combined conduct of the parties [103 Wn.2d 654] (negligence and assumption of the risk) which contributed to the damage to the plaintiff, you must determine what percentage of such conduct is attributable to Mr. or Mrs. Shorter.

Jury instruction 13A provided:

A person who fully understands a risk of harm to himself or a member of his family and who voluntarily submits to such risk under circumstances which manifest his willingness to assume the risk is not entitled to recover for harm within that risk.

In this case Mr. and Mrs. Shorter did not voluntarily assume the risk of negligence by defendant, but did voluntarily assume the risks relating to the refusal of transfusions of blood or blood products.

In Lyons v. Redding Constr. Co., 83 Wash.2d 86, 515 P.2d 821 (1973), decided before the enactment of the comparative negligence statute, we analyzed the assumption of risk doctrine. Plaintiff directs our attention to the following language in Lyons in which this court predicted that enactment of the comparative negligence statute would sound the death knell for the defense of assumption of risk.

The decision reached here today has been long-aborning. Somewhat ironically, its effects will be short-lived. The assumption of risk in special and limited situations or contributory negligence on the part of a plaintiff has the effect of denying all recovery regardless of degree of fault. But this all or nothing result will be abandoned or changed on April 1, 1974, because the Washington state legislature has recently enacted a [695 P.2d 122] comparative negligence statute [RCW 4.22.010, repealed in 1981 (Laws of 1981, ch. 27, p. 112), but in effect at the time of the events leading to this action] ...

... Accordingly, it has been held the effect of the comparative negligence standard shall be to completely abrogate the assumption of risk doctrine as known and applied heretofore.

Lyons, at 95-96, 515 P.2d 821.

Plaintiff misreads Lyons in asserting that it abandoned the defense of assumption of risk in toto. The reference of the Lyons court to the gloomy future of the assumption of risk doctrine was directed only at the form of [103 Wn.2d 655] assumption of risk where the plaintiff's conduct is contributorially negligent. This is referred to as "unreasonable assumption of risk". W. Keeton, Torts, § 68, at 497 (5th ed. 1984) (hereinafter W. Keeton). Other forms of assumption of risk, e.g., those not involving unreasonable plaintiff conduct, were not at issue in Lyons.

Courts and commentators have struggled with the issue as to whether and to what extent the defense of "reasonable" assumption of risk survives the enactment of comparative negligence statutes. See W. Keeton, supra § 68, at 495 n. 54 (citing commentators); Annot., Effect of Adoption of Comparative Negligence Rules on Assumption of Risk, 16 A.L.R.4th 700, 711 (1982). To determine whether the giving of the assumption of risk jury instruction was error, the type of risk the Shorters are alleged to have assumed must be identified.

Prosser classifies the forms of assumption of risk as follows: express, implied primary, implied reasonable, and implied unreasonable. W. Keeton, supra § 68, at 496. It is not argued the Shorters' conduct in assuming the risk is not "implied unreasonable" assumption of the risk; nor do we need to determine whether "implied primary" or "implied reasonable" assumption of risk survived the comparative negligence statute. See W. Keeton, supra § 68, at 496-98. We confine our analysis to the validity of express assumption of risk and the extent to which it applies in the circumstances of this case.

Express assumption of the risk is a defense when:

[T]he plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.

W. Keeton, supra § 68, at 480. Jurisdictions with comparative negligence statutes have generally held that the defense of express assumption of the risk survives the enactment of these statutes. V. Schwartz, Comparative Negligence § 9.2, at 159 (1974 & Supp.1981). See, [103 Wn.2d 656] e.g., Keegan v. Anchor Inns, Inc., 606 F.2d 35 (3d Cir.1979); Blackburn v. Dorta, 348 So.2d 287 (Fla.1977); Thompson v. Weaver, 277 Or. 299, 560 P.2d 620 (1977); Polsky v. Levine, 73 Wis.2d 547, 243 N.W.2d 503 (1976). Even jurisdictions whose comparative negligence statutes expressly incorporate assumption of the risk have upheld express assumption of risk. Becker v. Beaverton Sch. Dist. 48, 25 Or.App. 879, 551 P.2d 498 (1976); Wilson v. Gordon, 354 A.2d 398 (Me.1976) (dicta). But see Lamphear v. State, 91 A.D.2d 791, 458 N.Y.S.2d 71 (1982).

Former RCW 4.22.010 does not expressly state it abolishes the assumption of risk doctrine; it only mentions "contributory negligence". Express assumption of the risk, however, is not "negligence". It is merely a form of waiver or consent. W. Keeton, supra § 68, at 496. Keegan v. Anchor Inns, Inc., supra. We hold the doctrine of express assumption of risk survived the enactment of the comparative negligence statute, RCW 4.22.010, and is applicable in Washington. See Lyons v. Redding Constr. Co., 83 Wash.2d 86, 95, 515 P.2d 821 (1973).

The doctrine, assumption of risk, will, in the Prosser [W. Prosser, Torts § 68 (4th ed. 1971) ] idiom, have retained validity where there is an express agreement to assume, or the plaintiff has assumed a [695 P.2d 123] risk with knowledge of willful, wanton, or reckless negligence of the defendant.

(Italics in original omitted. Italics ours.) Lyons, at 95, 515 P.2d 821. See Klein v. R.D. Werner Co., 98 Wash.2d 316, 319, 654 P.2d 94 (1982). See also V. Schwartz, supra; W. Keeton, supra § 68, at 496.

The next question is whether the Shorters could be found by the jury to have expressly assumed the risk that Dr. Drury's performance of the D and C could be negligent, thereby increasing Mrs. Shorter's chances of bleeding to death. For a person expressly to assume the risk of another's conduct, that person must have knowledge of the risk, appreciate and understand its nature, and voluntarily choose to incur it. W. Keeton, supra § 68, at 486-87; Martin v. Kidwiler, 71 Wash.2d 47, 49, 426 P.2d 489 (1967). The test is a subjective one: Whether the plaintiff in fact understood [103 Wn.2d 657] the risk; not whether the reasonable person of ordinary prudence would comprehend the risk. Martin v. Kidwiler, supra. We find the record contains sufficient evidence from which a jury could have concluded the Shorters understood and expressly assumed the risk of bleeding to death as a result of Dr. Drury's negligence.

The general rule is that for persons to assume a risk, they must be aware of more than just the generalized risk of their activities; there must be proof they knew of and appreciated the specific hazard which caused the injury. See Runnings v. Ford Motor Co., 461 F.2d 1145, 1148 (9th Cir.1972); Garcia v. South Tucson, 131 Ariz. 315, 640 P.2d 1117 (Ct.App.1981). From this rule, plaintiff argues that while he and his wife were aware of the generalized risk of bleeding to death, they did not understand Mrs. Shorter's chances of bleeding to death would be greatly increased by Dr. Drury's negligence. The Shorters, however, did not merely assume a "generalized risk". They assumed the specific risk that Mrs. Shorter might die from bleeding if she refused to permit a blood transfusion. See Simpson v. May, 5 Wash.App. 214, 486 P.2d 336 (1971).

The Shorters signed the refusal which stated that they waived professional liability for "unfavorable reactions" or "untoward results" due to Mrs. Shorter's refusal to permit the use of blood. Mrs. Shorter consulted with Drs. Drury and Ott, both of whom advised her that the D and C, even if nonnegligently performed, could result in fatal bleeding. Furthermore, the Shorters were repeatedly advised Mrs. Shorter was bleeding and that without a transfusion her death was imminent.

Plaintiff calls our attention to the common law principle that a person cannot assume the risk of another's negligence. See, e.g., Regan v. Seattle, 76 Wash.2d 501, 458 P.2d 12 (1969) (driver of "go-cart" on race course does not assume extraordinary risk that there may be spilled water on the course); Wood v. Postelthwaite, 6 Wash.App. 885, 496 P.2d 988 (1972) (golfer does not assume extraordinary, unforeseen risk of being hit by golf ball due to inadequate [103 Wn.2d 658] warning but may assume other risks inherent in the game). While we do not question the rule, we disagree with plaintiff's assertion that it applies in this case.

The defendants do not argue, nor do we hold, that the Shorters assumed the risk of the "direct consequences" of Dr. Drury's negligence. Those "consequences" would be recoverable in a survival action under RCW 4.20.046, .050, and .060. Defendant argues, however, and we agree, that the Shorters could be found by the jury to have assumed the risk of death from an operation which had to be performed without blood transfusions and where blood could not be administered under any circumstances including where the doctor made what would otherwise have been correctable surgical mistake. The risk of death from a failure to receive a transfusion to which the Shorters exposed themselves was created by, and must be allocated to, the Shorters themselves.

The case of Mainfort v. Giannestras, 49 Ohio Op. 440, 111 N.E.2d 692 (C.P.1951) is on point. In Mainfort, the plaintiff, a diabetic, consulted with the defendant doctor regarding an operation to lengthen his leg. [695 P.2d 124] The doctor explained the operation was particularly risky, due to the possibility that a bone infection might result from the diabetes. The doctor alleged he advised the plaintiff the operation was risky, for the above reasons, "notwithstanding that said treatment and operation would be done in strict and full accord with approved and proper medical methods and practices". Mainfort, at 441, 111 N.E.2d 692. The plaintiff nevertheless consented. The doctor performed the operation negligently and the plaintiff's diabetic condition aggravated the doctor's negligence. Although it acknowledged that plaintiff did not assume the risk of the negligently performed operation, the court upheld the assumption of risk defense to the extent it barred negligence damages accruing to the plaintiff's diabetic conditions. The court held:

[103 Wn.2d 659] [The assumption of risk defense] is strictly confined to the consequences growing out of the diabetic condition, which condition, and the risks it attached to the operation, is alleged to have been fully made known to the plaintiff by the defendant before the plaintiff consented to the operation.

Mainfort, at 442, 111 N.E.2d 692.

Mr. and Mrs. Shorter did not assume the risk of the negligence. The risk they did assume was the risk of death as the consequence of their refusal to permit a blood transfusion.

III

Finally, plaintiff asserts the submission of the issue of assumption of the risk to the jury violated the free exercise clause of the First Amendment. Plaintiff concedes he has found no cases involving the effect of a patient's refusal of blood in a malpractice action. Nevertheless, plaintiff claims error in the refusal of the trial court to give his proposed instruction 24 which would have told the jury compensation could not be denied because of a refusal of blood for religious reasons. While the Supreme Court has stated the free exercise clause of the First Amendment forbids the "state condition[ing] receipt of an important benefit upon conduct proscribed by a religious faith", Thomas v. Review Bd., 450 U.S. 707, 717, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981), a prerequisite for First Amendment cases is that there be some state action or interference. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Thomas v. Review Bd., supra. There is none here. This is a dispute between private individuals; plaintiff is denied no rights under the First Amendment.

To summarize: The refusal was properly placed before the jury; the instructions on assumption of the risk were not in error and the issue was properly before the jury; there was no violation of the free exercise clause of the First Amendment.

[103 Wn.2d 660] Affirmed.

WILLIAM H. WILLIAMS, C.J., DIMMICK and ANDERSEN, JJ., and CUNNINGHAM, J. Pro Tem., concur.

PEARSON, Justice (dissenting).

The majority holds the Shorters did not assume the risk of Dr. Drury's negligence. I fully agree. The refusal form did not specifically state that Dr. Drury was released from damages resulting from his negligence, nor is there evidence the Shorters were specifically aware of the precise nature and extent of possible injury. See Restatement (Second) of Torts § 496 B, Comment b, Comment d (1965); Colton v. New York Hosp., 98 Misc.2d 957, 414 N.Y.S.2d 866 (1979); Martin v. Kidwiler, 71 Wash.2d 47, 426 P.2d 489 (1967).

The majority further holds the Shorters assumed the risk of death at the point where Dr. Drury's negligence created a life-threatening situation; that holding is tantamount to a holding that the Shorters assumed the risk of Dr. Drury's negligence. Thus, the majority seeks to accomplish its desired result through an analysis that attempts to mask its real effect: substantially excusing the doctor from liability for his negligence. I do not agree with this analysis or result. I therefore dissent.

[695 P.2d 125] The majority's holding necessarily decides the Shorters assumed the risk of death from refusal to take blood, no matter how the necessity for blood arose. I would agree that if the necessity for blood resulted from the non-negligent performance of the procedure, the Shorters assumed the risk of death resulting from their refusal to take blood. See Colton v. New York Hosp., supra. But, if the need for blood arose from the doctor's negligence, the majority would hold the Shorters still assumed the risk of death resulting from their refusal to take blood. Unlike the majority, I see a significant difference between the two scenarios.

The risk of excessive bleeding inherent in the non-negligent performance of the procedure was increased by the [103 Wn.2d 661] Shorters' refusal to take blood; that is a risk properly allocated to the Shorters. The refusal form signed by the Shorters represents their assent to relieve Dr. Drury of his duty to administer blood if required by the non-negligent performance of the procedure. Mr. Shorter testified that such was his understanding at the time the procedure was performed. If Dr. Drury had performed the operation without negligence, but Mrs. Shorter had bled to death anyway, the doctor could not be held liable in this case.

However, the additional risk of bleeding to death created by the doctor's negligence is not a risk that should be allocated to the Shorters. If the Shorters are held to have assumed the risk of death from refusing blood, even when the blood was required because the doctor was negligent, that is in effect holding that the Shorters assumed the risk of the doctor's negligence. To expressly assume the risk of another's conduct, one must have knowledge of the risk, appreciate and understand its nature, and voluntarily choose to incur it. W. Keeton, Torts § 68, at 486-87 (5th ed. 1984); Martin v. Kidwiler, supra at 49, 426 P.2d 489. Express assumption of a risk requires assent to both the specific type and the magnitude of the risk. 57 Am.Jur.2d Negligence § 281, at 674 (1971). Additionally, a person does not have the duty to foresee negligence when he voluntarily exposes himself to a known risk. See Jones v. Wittenberg Univ., 534 F.2d 1203 (6th Cir.1976).

Traditional tort analysis forecloses the result reached by the majority because the evidence in this case is insufficient to support a finding of assumption of risk by the Shorters. Dr. Drury's negligence greatly increased Mrs. Shorter's chances of bleeding to death; thus, the "magnitude" of the risk was increased. The record clearly reflects the fact that the Shorters believed the procedure was routine. The dangers of performing the D and C were never fully explained to the Shorters; they were not informed that three methods of accomplishing the procedure were available, nor were they told that the method Dr. Drury planned to use was the method most likely to result in uterine perforation and [103 Wn.2d 662] excessive bleeding. The Shorters were merely informed of a generalized risk of bleeding inherent in the procedure. Awareness of a generalized risk is not sufficient to prove an express assumption of risk; there must be proof that a person knew and appreciated the specific hazard that caused the injury. See Runnings v. Ford Motor Co., 461 F.2d 1145, 1148 (9th Cir.1972); Martin v. Kidwiler, supra; Klein v. R.D. Werner Co., 98 Wash.2d 316, 654 P.2d 94 (1982).

The majority concedes the Shorters did not expressly assume the risk of the doctor's negligence. Having decided that, it logically follows that the Shorters did not expressly assume the risk of bleeding to death as a result of refusing blood, where the need for such blood resulted from the doctor's negligence rather than from the risks inherent in the procedure itself.

Accordingly, we come full circle: the Shorters did not assume the risk of negligence; they similarly did not assume the risk that a refusal of blood, which was necessitated by that negligence, would cause death. Only through the most strained analysis can the majority find that the Shorters assumed any risk here, beyond [695 P.2d 126] those risks inherent in a non-negligently performed procedure.

Thus, the jury could not have found that the Shorters assumed the risk of death under the facts here. I would hold it was error to submit the assumption of risk question to the jury. Accordingly, I would strike the finding that the Shorters assumed the risk of 75 percent of their injury and reinstate the full $412,000 verdict to Mr. Shorter. See Klein v. R.D. Werner Co., supra at 320, 654 P.2d 94.

DORE, BRACHTENBACH and UTTER, JJ., concur.

*Bell, C. J. Harrell, Battaglia, Greene, McDonald, Eldridge, John C. (Retired, Specially Assigned) Raker, Irma S.(Retired, Specially Assigned) JJ.

Bell, C.J., participated in the hearing of this case, in the conference in regard to its decision and in the adoption of the opinion, but he had retired from the Court prior to the filing of the opinion.

Opinion by ELDRIDGE, J.

Thirty years ago, in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444, 456 A.2d 894 (1983), this Court issued a writ of certiorari to decide "whether the common law doctrine of contributory negligence should be judicially abrogated in Maryland and the doctrine of comparative negligence adopted in its place as the rule governing trial of negligence actions in this State." In a comprehensive opinion by then Chief Judge Robert C. Murphy, the Court in Harrison, 295 Md. at 463, 456 A.2d at 905, declined to abandon the doctrine of contributory negligence in favor of comparative negligence, pointing out that such change "involves fundamental and basic public policy considerations properly to be addressed by the legislature."

The petitioner in the case at bar presents the same issue that was presented in Harrison, namely whether this Court should change the common law and abrogate the defense of contributory negligence in certain types of tort actions. After reviewing the issue again, we shall arrive at the same conclusion that the Court reached in Harrison.

I.

The petitioner and plaintiff below, James Kyle Coleman, was an accomplished soccer player who had volunteered to assist in coaching a team of young soccer players in a program of the Soccer Association of Columbia, in Howard County, Maryland. On August 19, 2008, Coleman, at the time 20 years old, was assisting the coach during the practice of a team of young soccer players on the field of the Lime Kiln Middle School. While the Soccer Association of Columbia had fields of its own, it did not have enough to accommodate all of the program's young soccer players; the Association was required to use school fields for practices. At some point during the practice, Coleman kicked a soccer ball into a soccer goal. As he passed under the goal's metal top rail, or crossbar, to retrieve the ball, he jumped up and grabbed the crossbar. The soccer goal was not anchored to the ground, and, as he held on to the upper crossbar, Coleman fell backwards, drawing the weight of the crossbar onto his face. He suffered multiple severe facial fractures which required surgery and the placing of three titanium plates in his face. Coleman instituted the present action by filing a complaint, in the Circuit Court for Howard County, alleging that he was injured by the defendants' negligence.^[1] The defendant and respondent, the Soccer Association of Columbia, asserted the defense of contributory negligence.

At the ensuing jury trial, the soccer coach who had invited Coleman to help coach the soccer players testified that he had not inspected or anchored the goal which fell on Coleman. The coach also testified that the goal was not owned or provided by the Soccer Association, and he did not believe that it was his responsibility to anchor the goal. During the trial, the parties disputed whether the goal was located in an area under the supervision and control of the Soccer Association and whether the Soccer Association was required to inspect and anchor the goal. The Soccer Association presented testimony tending to show that, because the goal was not owned by the Soccer Association, the Soccer Association owed no duty to Coleman. The Soccer Association also presented testimony that the condition of the goal was open and obvious to all persons. The Association maintained that the accident was caused solely by Coleman's negligence.

Testimony was provided by Coleman to the effect that players commonly hang from soccer goals and that his actions should have been anticipated and expected by the Soccer Association. Coleman also provided testimony that anchoring goals is a standard safety practice in youth soccer.

At the close of evidence, Coleman's attorney proffered a jury instruction on comparative negligence.^[2] The judge declined to give Coleman's proffered comparative negligence instruction and, instead, instructed the jury on contributory negligence.

The jury was given a verdict sheet posing several questions. The first question was: "Do you find that the Soccer Association of Columbia was negligent?" The jury answered "yes" to this question. The jury also answered "yes" to the question: "Do you find that the Soccer Association of Columbia's negligence caused the Plaintiff's injuries?" Finally, the jury answered "yes" to the question: "Do you find that the Plaintiff was negligent and that his negligence contributed to his claimed injuries?"

In short, the jury concluded that the Soccer Association of Columbia was negligent and that the Soccer Association's negligence caused Coleman's injuries. The jury also found that Coleman was negligent, and that his negligence contributed to his own injuries. Because of the contributory negligence finding, Coleman was barred from any recovery. The trial court denied Coleman's motion for judgment notwithstanding the verdict and subsequently entered judgment in favor of the Soccer Association of Columbia.

Coleman filed a notice of appeal, and the Soccer Association filed a notice of cross-appeal.^[3] Before briefing and argument in the Court of Special Appeals, Coleman filed in this Court a petition for a writ of certiorari, which was granted. Coleman v. Soccer Ass'n of Columbia, 425 Md. 396, 41 A.3d 570 (2012). In his petition, Coleman posed only one question: whether this Court should retain the standard of contributory negligence as the common law standard governing negligence cases in the State of Maryland.

We shall hold that, although this Court has the authority to change the common law rule of contributory negligence, we decline to abrogate Maryland's long-established common law principle of contributory negligence.

II.

This Court last addressed the continuing viability of the contributory negligence doctrine in Harrison v. Montgomery County Bd. of Educ., supra, 295 Md. 442, 456 A.2d 894. In Harrison, the Court held that the contributory negligence principle remained the valid standard in Maryland negligence cases and that "any change in the established doctrine [was for] the Legislature." 295 Md. at 463, 456 A.2d at 905.

Chief Judge Murphy, for the Court in Harrison, began his review of the contributory negligence standard by tracing the standard's historical origins to Lord Chief Justice Ellenborough's opinion in Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809).^[4] As Harrison explained the case,

"Butterfield left a public inn at dusk, mounted his horse and rode off `violently' down the street. Forrester, who was effecting some repairs to his house, had placed a pole in the roadway. Although Butterfield could have seen and avoided the obstruction, he did not and was injured. The [English] court there noted:

`One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.' [11 East] at 61, 103 Eng. Rep. at 927."

The Harrison opinion explained that, when the contributory negligence standard was first judicially adopted in the United States, the courts at the time were concerned that juries would award to plaintiffs sums that had the potential to stifle "newly developing industry."^[5] Early American courts were also concerned that they should not adopt a policy in which "courts . . . assist a wrongdoer who suffered an injury as a result of his own wrongdoing." Harrison, 295 Md. at 450, 456 A.2d at 898. See also Smith v. Smith, 2 Pick. 621, 19 Mass. 621, 624 (1824) (a leading early American case incorporating the contributory negligence bar as part of common law).

This Court, relying on Butterfield v. Forrester, supra, first adopted the standard of contributory negligence in Irwin v. Sprigg, 6 Gill. 200, 205 (1847), stating:

"The established doctrine now is, that although the defendant's misconduct may have been the primary cause of the injury complained of, yet the plaintiff cannot recover in an action of this kind, if the proximate and immediate cause of the damage can be traced to a want of ordinary care and caution on his part. Under such circumstances he must bear the consequences of his own recklessness or folly."

The contributory negligence standard was later modified in part by this Court's adoption of the last clear chance doctrine, see N.C.R.R. Co. v. State, Use of Price, 29 Md. 420, 436 (1868), which allowed a plaintiff to recover "if the defendant might, by the exercise of care on its part, have avoided the consequences of the neglect or carelessness" of the plaintiff. The Court recognized another exception to the contributory negligence standard where the plaintiff is under five years old. See Taylor v. Armiger, 277 Md. 638, 358 A.2d 883 (1975).

The Harrison Court examined the origins and impact of comparative negligence, noting that early in the 20th century, the Maryland General Assembly had adopted a form of comparative negligence for "certain perilous occupations," but had subsequently repealed the provisions. The Court in Harrison also pointed out that, as of 1983, of the thirty-nine states that had adopted comparative negligence, thirty-one had done so by statute, with the eight remaining states having adopted the principle by judicial action. The Court noted that it was "clear" that legal scholars "favored" the comparative negligence standard, as supported by "[a]n almost boundless array of scholarly writings." 295 Md. at 453, 456 A.2d at 899.

Nevertheless, the Harrison Court pointed to other considerations involved in changing the standard from contributory negligence to comparative negligence (295 Md. at 454-455, 456 A.2d at 900-901):

"Also to be considered is the effect which a comparative fault system would have on other fundamental areas of negligence law. The last clear chance doctrine, assumption of the risk, joint and several liability, contribution, setoffs and counterclaims, and application of the doctrine to other fault systems, such as strict liability in tort, are several of the more obvious areas affected by the urged shift to comparative negligence. Even that change has its complications; beside the `pure' form of comparative negligence, there are several `modified' forms, so that abrogation of the contributory negligence doctrine will necessitate the substitution of an alternate doctrine. Which form to adopt presents its own questions and the choice is by no means clear. . . . That a change from contributory to comparative negligence involves considerably more than a simple common law adjustment is readily apparent."

Harrison also examined those states which had abrogated the contributory negligence standard, pointing out that "most of the states which have adopted comparative negligence have done so by statute in derogation of the common law." 295 Md. at 456, 456 A.2d at 901. The Court observed that, in several of these states, the courts had refused to judicially abrogate the contributory negligence standard because they "expressly deferred on policy grounds to their respective legislatures." 295 Md. at 456, 456 A.2d at 901. Only eight state supreme courts, as of 1983, had adopted a comparative negligence standard by judicial decision.

The Harrison opinion further held that, when this Court is

"called upon, as here, to overrule our own decisions, consideration must be given to the doctrine of stare decisis — the policy which entails the reaffirmation of a decisional doctrine of an appellate court, even though if considered for the first time, the Court might reach a different conclusion. Deems v. Western Maryland Ry., 247 Md. 95, 231 A.2d 514 (1966)." 295 Md. at 458, 456 A.2d at 902.

Chief Judge Murphy in Harrison continued his assessment by explaining that the principle of stare decisis should not be construed to

"inhibit [this Court] from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people." (295 Md. at 459, 456 A.2d at 903).

Nevertheless, Harrison concluded (295 Md. at 459, 456 A.2d at 903):

"[I]n considering whether a long-established common law rule — unchanged by the legislature and thus reflective of this State's public policy — is unsound in the circumstances of modern life, we have always recognized that declaration of the public policy of Maryland is normally the function of the General Assembly; that body, by Article 5 of the Maryland Declaration of Rights, is expressly empowered to revise the common law of Maryland by legislative enactment. See Felder v. Butler . . . 292 Md. [174,] 183, 438 A.2d 494 [,499]; Adler v. American Standard Corp. . . . 291 Md. [31,] 45, 432 A.2d 464 [, 472]. The Court, therefore, has been particularly reluctant to alter a common law rule in the face of indications that to do so would be contrary to the public policy of the State. See, e.g., Condore v. Prince George's Co. . . . 289 Md. [516,] 532, 425 A.2d [1019,] 1011."

In the years immediately prior to Harrison, from 1966 to 1982, the Maryland General Assembly had considered twenty-one bills seeking to change the contributory negligence standard. None of the bills had been enacted. The Harrison Court accorded a great deal of weight to the General Assembly's failure to enact any of these bills, stating:

"[T]he legislature's action in rejecting the proposed change is indicative of an intention to retain the contributory negligence doctrine." 295 Md. at 462, 456 A.2d at 904.

The Court further pointed out that enactment of a comparative negligence standard is not a single issue; instead, such a decision would encompasses a variety of choices to be made, beginning with the initial inquiry of what form of comparative negligence to adopt,"pure" or one "of the several types of modified comparative negligence," 295 Md. at 462-463, 456 A.2d at 904. If Maryland's common law were to change, the Harrison opinion explained, the decision as to which form of comparative negligence to adopt "plainly involves major policy considerations" of the sort best left to the General Assembly. 295 Md. at 462, 456 A.2d at 904.

III.

Since the time of Harrison, this Court has continued to recognize the standard of contributory negligence as the applicable principle in Maryland negligence actions. See, e.g., Thomas v. Panco Management of Maryland, LLC, 423 Md. 387, 417, 31 A.3d 583, 601 (2011); Erie Insurance Exchange v. Heffernan, 399 Md. 598, 925 A.2d 636 (2007); Dehn v. Edgecombe, 384 Md. 606, 865 A.2d 603 (2005); Franklin v. Morrison, 350 Md. 144, 168, 711 A.2d 177, 189 (1998); County Commissioners v. Bell Atlantic, 346 Md. 160, 695 A.2d 171 (1997); Brady v. Parsons Co., 327 Md. 275, 609 A.2d 297 (1992); Wegad v. Howard Street Jewelers, 326 Md. 409, 605 A.2d 123 (1992); Liscombe v. Potomac Edison Co., 303 Md. 619, 495 A.2d 838 (1985).

Although the contributory negligence principle has been part of this State's common law for over 165 years, petitioners and numerous amici in this case urge this Court to abolish the contributory negligence standard and replace it with a form of comparative negligence. They argue contributory negligence is an antiquated doctrine, that it has been roundly criticized by academic legal scholars, and that it has been rejected in a majority of our sister states. It is also pointed out that contributory negligence works an inherent unfairness by barring plaintiffs from any recovery, even when it is proven, in a particular case, that a defendant's negligence was primarily responsible for the act or omission which resulted in a plaintiff's injuries. It is said that contributory negligence provides harsh justice to those who may have acted negligently, in minor ways, to contribute to their injuries, and that it absolves those defendants from liability who can find any minor negligence in the plaintiffs' behavior.

Petitioners correctly contend that, because contributory negligence is a court-created principle, and has not been embodied in Maryland statutes, this Court possesses the authority to change the principle. This Court has recognized that (Ireland v. State, 310 Md. 328, 331-332, 529 A.2d 365, 366 (1987)),

"[b]ecause of the inherent dynamism of the common law, we have consistently held that it is subject to judicial modification in light of modern circumstances or increased knowledge. Harris v. State, 306 Md. 344, 357, 509 A.2d 120 (1986); Kelley v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143 (1985). Equally well established is the principle that the common law should not be changed contrary to the public policy of this State set forth by the General Assembly. Kelley, supra, 304 Md. at 141, 497 A.2d . . . [at 1151]; Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442, 460-61, 456 A.2d 894 [, 903] (1983). In the area of civil common law this Court has not only modified the existing law but also added to the body of law by recognizing new causes of action. Kelley, supra, (recognizing cause of action against manufacturers or marketers for damages caused by `Saturday Night Special' handguns); Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983)(permitting negligence action by one spouse against another); Moxley v. Acker, 294 Md. 47, 447 A.2d 857 (1982)(deleting force as a required element of the action of forceable detainer); Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981)(recognizing tort of abusive or wrongful discharge); Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978) (abolishing the defense of interspousal immunity in the case of outrageous intentional torts); Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977)(recognizing tort of intentional infliction of emotional distress)."

The Court's ability to modify the common law was further underscored in Kelley v. R.G. Industries, Inc., 304 Md. 124, 140, 497 A.2d 1143. 1151 (1985):

"This Court has repeatedly said that `the common law is not static; its life and heart is its dynamism — its ability to keep pace with the world while constantly searching for just and fair solutions to pressing societal problems.' Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442, 460, 456 A.2d 894 (1983). See Felder v. Butler, 292 Md. 174, 182, 438 A.2d 494 (1981). The common law is, therefore, subject to judicial modification in light of modern circumstances or increased knowledge. Jones v. State, 302 Md. 153, 161, 486 A.2d 184 (1985); Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983); Condore v. Prince George's Co., 289 Md. 516, 425 A.2d 1011 (1981)."

See also, e.g., Bowden v. Caldor, 350 Md. 4, 710 A.2d 267 (1998)("as often pointed out, this Court has authority under the Maryland Constitution to change the common law"); Telnikoff v. Matusevitch, 347 Md. 561, 593 n. 29, 702 A.2d 230, 246 n.29 (1997); Owens-Illinois v. Zenobia, 325 Md. 420, 469-470, 601 A.2d 633, 657 (1992).

Since the Harrison case, the General Assembly has continually considered and failed to pass bills that would abolish or modify the contributory negligence standard.^[6] The failure of so many bills, attempting to change the contributory negligence doctrine, is a clear indication of legislative policy at the present time. This Court in Moore v. State, 388 Md. 623, 641, 882 A.2d 256, 267 (2005), with regard to the failure of legislation, explained:

"Although the failure of a single bill in the General Assembly may be due to many reasons, and thus is not always a good indication of the Legislature's intent, under some circumstances, the failure to enact legislation is persuasive evidence of legislative intent. See, e.g., Lee v. Cline, 384 Md. 245, 255-256, 863 A.2d 297, 303-304 (2004); Arundel Corp. v. Marie, 383 Md. 489, 504, 860 A.2d 886, 895 (2004) (`The Legislature [has] declined invitations to modify the rule as [appellant] wishes'); Stearman v. State Farm, 381 Md. 436, 455, 849 A.2d 539, 550-551 (2004)(`The refusal of the Legislature to act to change a [statute] . . . provides . . . support for the Court to exercise restraint and refuse to step in and make the change'); In re Anthony R., supra, 362 Md. [51,] 65-67, 763 A.2d [136], 144-145 (2000); State v. Sowell, 353 Md. 713, 723-724, 728 A.2d 712, 717-718 (1999) (`We have recognized that the General Assembly's failure to amend . . . sometimes reflects its desired public policy'); State v. Bell, 351 Md. 709, 723, 720 A.2d 311, 318 (1998) (`Therefore, by declining to adopt the proposed language of the amending bill, the Legislature clearly did not intend' to adopt the result being urged); State v. Frazier, 298 Md. 422, 459, 470 A.2d 1269, 1288 (1984) (`All of these proposals [supporting different views of a statute advocated by the parties] were rejected by the General Assembly')."

The Moore opinion continued (388 Md. at 641-642, 882 A.2d at 267):

"Legislative inaction is very significant where bills have repeatedly been introduced in the General Assembly to accomplish a particular result, and where the General Assembly has persistently refused to enact such bills. See, e.g., Arundel Corp. v. Marie, supra, 383 Md. at 502-504, 860 A.2d at 894-896; Stearman v. State Farm, supra, 381 Md. at 455, 849 A.2d at 551 (`Every year since 2000, legislators have introduced bills in the General Assembly that would' accomplish what the appellant urges, but `[n]one of these bills were enacted'); Bozman v. Bozman, 376 Md. 461, 492, 830 A.2d 450, 469 (2003), quoting Boblitz v. Boblitz, 296 Md. 242, 274, 462 A.2d 506, 521 (1983) (The Court will decline to adopt a particular position `where the Legislature repeatedly had rejected efforts to achieve legislatively that which we were asked to grant judicially'); Halliday v. Sturm, 368 Md. 186, 209, 792 A.2d 1145, 1159 (2002) (The Court refused to adopt positions `that have been presented on several occasions to the General Assembly' and `[s]o far, the Legislature has chosen not' to adopt them). . . ."

See also Potomac Valley Orth. v. Board of Physicians, 417 Md. 622, 640-641, 12 A.3d 84, 95 (2011).

The General Assembly's repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence. Chief Judge Bell emphasized for the Court in Baltimore v. Clark, 404 Md. 13, 36, 944 A.2d 1122, 1135-1136 (2008), the following:

"It is well settled that, where the General Assembly has announced public policy, the Court will decline to enter the public policy debate, even when it is the common law that is at issue and the Court certainly has the authority to change the common law. Adler v. American Standard Corp., 291 Md. at 47, 432 A.2d at 473."

See Ireland v. State, supra, 310 Md. at 331, 529 A.2d at 366 ("[T]he common law should not be changed contrary to the public policy of the State as set forth by the General Assembly"); Kelley v. R. G. Industries, supra, 304 Md. at 141, 497 A.2d at 1151 ("[W]e have consistently recognized that common law principles should not be changed contrary to the public policy of the State set forth by the General Assembly").

For this Court to change the common law and abrogate the contributory negligence defense in negligence actions, in the face of the General Assembly's repeated refusal to do so, would be totally inconsistent with the Court's long-standing jurisprudence.

JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY THE APPELLANT JAMES COLEMAN.

Battaglia, Greene, McDonald and Raker, JJ. Concur.

Dissenting Opinion by HARRELL, J., which Bell, C.J., joins

Paleontologists and geologists inform us that Earth's Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.

My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.

I. The History of Contributory Negligence in Maryland

Under the doctrine of contributory negligence, a plaintiff who fails to exercise ordinary care for his or her own safety, and thus contributes proximately to his or her injury, "is barred from all recovery, regardless of the quantum of a defendant's primary negligence." Harrison v. Montgomery Cnty. Bd. of Ed., 295 Md. 442, 451, 456 A.2d 894, 898 (1983). Contributory negligence is the "neglect of duty imposed upon all men to observe ordinary care for their own safety," Potts v. Armour & Co., 183 Md. 483, 490, 39 A.2d 552, 556 (1944), and refers not to the breach of a duty owed to another, but rather to the failure of an individual to exercise that degree of care necessary to protect him or her self. Baltimore Cnty. v. State, Use of Keenan, 232 Md. 350, 362, 193 A.2d 30, 37 (1963). An "all-or-nothing" doctrine, contributory negligence operates in application as a total bar to recovery by an injured plaintiff.

The doctrine is of judicial "Big Bang" origin, credited generally to the 1809 English case of Butterfield v. Forrester (1809) 103 Eng. Rep. 926 (K.B.). In Butterfield, the court considered whether a plaintiff, injured while "violently" riding his horse on a roadway, by a pole negligently placed in the roadway, could recover damages. Denying recovery, Lord Ellenborough penned the first recognized incantation of contributory negligence, declaring, "One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff." Id. at 927.

Soon after Butterfield, American courts began to recognize the doctrine of contributory negligence. See Smith v. Smith, 19 Mass. (2 Pick.) 621 (1824); William L. Prosser, Comparative Negligence, 51 Mich. L. Rev. 465, 468 (1953). Although early courts explained rarely the reasons for their adoption of the doctrine, scholars set forth later multiple reasons for its widespread acceptance in the U.S. in the nineteenth and early twentieth centuries. For example, its ascendance was considered a means of encouraging potential plaintiffs to comply with the relevant standard of care, 4 Harper, James & Gray on Torts, § 22.2 at 340 (3d ed. 2006) (hereinafter "Harper, James & Gray"); requiring plaintiffs to enter court with clean hands, Prosser & Keeton on the Law of Torts, § 65 at 451 (5th ed. 1984) (hereinafter "Prosser & Keeton"); and, insulating developing industry from liability and fostering economic growth by keeping in check plaintiff-minded juries. Id. at 452; 4 Harper, James & Gray, supra, § 22.1 at 328-30. The doctrine was seen also as consistent with "several unwritten policies of the [nineteenth and early twentieth century] common law" — specifically, the idea that courts should not assist someone who contributes to causing his or her own injuries, and the "passion for a simple issue that could be categorically answered yes or no . . ." Harrison, 295 Md. at 450, 456 A.2d at 897-98; see also Edward S. Digges, Jr. & Robert Dale Klein, Comparative Fault in Maryland: The Time Has Come, 41 Md. L. Rev. 276, 278 (1982); Prosser & Keeton, supra, § 65 at 452.

Whatever the initial justifications attributed to its birth, contributory negligence has been a mainstay of Maryland law since its adoption in Irwin v. Sprigg, 6 Gill 200 (1847).^[7] Since that time, Maryland courts applied the doctrine of contributory negligence to bar recovery in negligence actions by at-fault plaintiffs. Exceptions evolved, however, to allow recovery in specific instances. For example, the defense of contributory negligence is not available against claimants under five years of age, Taylor v. Armiger, 277 Md. 638, 649, 358 A.2d 883, 889 (1976), in strict liability actions, Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 597, 495 A.2d 348, 356 (1985), and in actions based on intentional conduct, Tucker v. State, Use of Johnson, 89 Md. 471, 486, 43 A. 778, 783 (1899); State Farm Mut. Auto. Ins. Co. v. Hill, 139 Md. App. 308, 316-18, 775 A.2d 476, 481-82 (2001). Additionally, the doctrine of last clear chance developed, Northern Cent. Ry. Co. v. State, Use of Price, 29 Md. 420, 436 (1868), to allow a plaintiff to recover, despite his or her contributory negligence, if he or she establishes "something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence."^[8]Sanner v. Guard, 236 Md. 271, 276, 203 A.2d 885, 888 (1964).

The all-or-nothing consequences of the application of contributory negligence have long been criticized nationally by scholars and commentators. See, e.g., Hilen v. Hays, 673 S.W.2d 713, 717 (Ky. 1984) ("A list of the critics of contributory negligence as a complete bar to a plaintiff's recovery reads like a tort hall of fame. The list includes, among others, Campbell, Fleming, Green, Harper and James, Dreton, Leflar, Malone, Pound and Prosser."); Prosser, Comparative Negligence, supra, at 469 ("Criticism of the denial of recovery was not slow in coming, and it has been with us for more than a century."); 2 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts, § 218 at 763 (2d ed. 2011) (hereinafter "Dobbs") ("The traditional contributory negligence rule was extreme not merely in results but in principle. No satisfactory reasoning has ever explained the rule."). Many have argued instead for, and most states have adopted,^[9] a system of comparative negligence which apportions damages between a negligent plaintiff and a negligent defendant according to each party's relative degree of fault. Thus, under a comparative negligence system, a plaintiff's contributory negligence does not bar recovery, but rather reduces proportionately his or her damages in relation to his or her degree of fault.^[10] 2 Dobbs, supra, § 220 at 771.

This Court considered previously whether to replace the common law doctrine of contributory negligence with a system of comparative fault. See Harrison, 295 Md. 442, 456 A.2d 894; Pittsburg & Connellsville R.R. Co. v. Andrews, 39 Md. 329, 351 (1874) (noting that a doctrine requiring the relative fault of a plaintiff and defendant to be compared "has never been sanctioned in this State, but the exact contrary is the settled rule here"). We confronted this question most recently nearly thirty years ago. In Harrison, we considered whether to abrogate judicially contributory negligence in the midst of a nation-wide movement to transition to a system of comparative fault.^[11] We engaged first in a comparison of the historical and doctrinal principles of both contributory and comparative negligence. Harrison, 295 Md. at 449-53, 456 A.2d at 897-99. Although recognizing the growing trend toward adopting principles of comparative fault, id. at 456-58, 456 A.2d at 901-02, we noted, on the other hand, Maryland's long history of applying the doctrine of contributory negligence. Id. at 458, 456 A.2d at 902. See Irwin, 6 Gill at 205 (adopting the doctrine of contributory negligence); Pittsburg & Connellsville R.R. Co., 39 Md. at 351 (affirming Maryland's adherence to contributory, rather than comparative, negligence).

Although acknowledging further that jurisdictions transitioning from contributory negligence to comparative fault regimes experienced little difficulty in doing so, Harrison, 295 Md. at 454, 456 A.2d at 900, we noted that making such a doctrinal change requires consideration of a multitude of options and implications. Id. at 462-63, 456 A.2d at 904-05. For example, this Court would have to choose between a pure or modified fault system, and consider "the effect which a comparative fault system would have on other fundamental areas of negligence law," such as the "last clear chance doctrine, assumption of the risk, joint and several liability, contribution, setoffs and counterclaims, and application of the doctrine to other fault systems, such as strict liability in tort. . . ." Id. at 455, 456 A.2d at 900. Noting the lack of uniformity among the systems adopted by new comparative fault jurisdictions in their treatment of these areas, we characterized the decision whether to adopt either pure or modified comparative fault as one "plainly involv[ing] major policy considerations." Id. at 462, 456 A.2d at 904.

Perhaps overawed by the difficult choices inherent in adopting comparative negligence, however, the Harrison court declined to ride atop the tsunami of states abandoning contributory negligence. Instead, the Harrison majority observed that "scant attention" had been paid by the Maryland Bench and Bar to the relative merits of contributory and comparative negligence, id. at 458, 456 A.2d at 902, and that, although the Legislature had considered numerous bills proposing to adopt comparative fault, none were enacted ultimately. Id. at 461-62, 456 A.2d at 904. Thus, ignoring the great societal change nationally demonstrating the unsuitability of contributory negligence principles to modern life, but finding no evidence of that groundswell in Maryland, we deferred instead to the Legislature, inferring from its inaction an "intention to retain the contributory negligence doctrine" as the public policy of the State of Maryland. Id. at 462, 456 A.2d at 904. We concluded:

All things considered, we are unable to say that the circumstances of modern life have so changed as to render contributory negligence a vestige of the past, no longer suitable to the needs of the people of Maryland. In the final analysis, whether to abandon the doctrine of contributory negligence in favor of comparative negligence involves fundamental and basic public policy considerations properly to be addressed by the legislature. We therefore conclude . . . that while we recognize the force of the plaintiff's argument, in the present state of the law, we leave any change in the established doctrine to the Legislature.

Id. at 463, 456 A.2d at 905 (internal quotation marks and citations omitted). We are given straightforwardly in the present case another opportunity to replace the doctrine of contributory negligence with a system of comparative fault.

II. The Maryland Court of Appeals Has the Power to Abrogate Contributory Negligence

Unquestionably (as the Majority opinion agrees — see Maj. slip op. at 11-12), this Court has the power to change the doctrine of contributory negligence. Although the common law may be changed also by legislative act, Md. Const. Decl. of Rts. art. 5, we have stated frequently that it is "our duty to determine the common law as it exists in this State." Pope v. State, 284 Md. 309, 341-42, 396 A.2d 1054, 1073 (1979) (quoting Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204, 82 A.2d 106, 117 (1951)). See also Tracey v. Solesky, 427 Md. 627, 639-40, 50 A.3d 1075, 1081-82 (2012) (quoting Ireland v. State, 310 Md. 328, 331-32, 529 A.2d 365, 366 (1987)); McGarvey v. McGarvey, 286 Md. 19, 27, 405 A.2d 250, 254 (1979). Contributory negligence is, and has always been, a common law doctrine of judicial origin in this State. See Irwin, 6 Gill 200. In the absence of codification by the Legislature, the defense of contributory negligence remains a dependent of the common law, and as such, is within the province of its parent, this Court, to abrogate or modify that to which it gave birth and nurtured. See, e.g., Price v. State, 405 Md. 10, 23, 949 A.2d 619, 627 (2008) (noting that because "the Maryland principles governing inconsistent verdicts are neither reflected in statutes nor in the Rules promulgated by this Court[,] . . . those principles . . . [are] part of Maryland common law" and subject to judicial modification); Jones v. State, 303 Md. 323, 337 n.10, 493 A.2d 1062, 1069 n.10 (1985) ("The common law rule may, within constitutional constraints, be changed or modified by. . . judicial decision. . . ."); Ireland, 310 Md. at 331, 529 A.2d at 366 ("[T]he determination of what part of th[e] common law is consistent with the spirit of Maryland's Constitution and her political institutions[] are to be made by this Court.").

In accordance with our authority to alter the common law, Petitioner James Coleman ("Coleman") urges this Court to abolish the doctrine of contributory negligence, arguing that it is a vestige of the past. In response, Respondent Soccer Association of Columbia ("SAC") and its Amici^[12] claim principally that this Court is bound by its decision in Harrison to retain the doctrine of contributory negligence; but, assuming that we are not bound by Harrison, Respondent contends that the abrogation of contributory negligence is more appropriate for legislative, rather than judicial, action, due to the complex policy considerations involved in adopting comparative negligence. I disagree. Principles of stare decisis do not require continued adherence to our decision in Harrison, nor does this Court owe continued deference to the General Assembly simply because of the difficult choices inherent in formulating a comparative negligence rule. Thus, I would abolish the doctrine of contributory negligence and replace it with comparative fault — "not because [it is] easy, but because [it is] hard." President John F. Kennedy, Address at Rice University on the Nation's Space Effort (12 Sept. 1962).^[13]

A. Stare Decisis Does Not Require Retention of the Doctrine of Contributory Negligence

Under the doctrine of stare decisis, changes in long-standing "decisional doctrine are left to the Legislature" for purposes of "certainty and stability." Harrison, 295 Md. at 458-59, 456 A.2d at 902 (quoting Deems v. Western Md. Ry. Co., 247 Md. 95, 102, 231 A.2d 514, 518 (1967)). Stare decisis, meaning to stand by the thing decided, "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Livesay v. Baltimore Cnty., 384 Md. 1, 14, 862 A.2d 33, 40-41 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609 (1991)). Notwithstanding the doctrine of stare decisis, the common law remains "subject to judicial modification in the light of modern circumstances or increased knowledge." Ireland, 310 Md. at 331, 529 A.2d at 366. As we stated in Harrison, we have never construed the doctrine of stare decisis "to inhibit us from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people." 295 Md. at 459, 456 A.2d at 903.

Although this Court has declined frequently to alter long-standing common law rules, see, e.g., Fennell v. Southern Md. Hosp. Ctr., 320 Md. 776, 786-87, 580 A.2d 206, 211 (1990) (refusing to revise the common law to permit damages for "lost chance of survival" claims in medical malpractice actions); Frye v. Frye, 305 Md. 542, 567, 505 A.2d 826, 839 (1986) (declining to overturn parent-child immunity in motor tort cases); State v. Minster, 302 Md. 240, 245, 486 A.2d 1197, 1199 (1985) (refusing to abrogate the common law "year and a day rule"), we may depart from principles of stare decisis in two circumstances: (1) when a prior decision was "clearly wrong and contrary to established principles," Tracey, 427 Md. at 659, 50 A.3d at 1093 (quoting State v. Adams, 406 Md. 240, 259, 958 A.2d 295, 307 (2008)), or (2) "when precedent has been superseded by significant changes in the law or facts." Id. (citing Harrison, 295 Md. at 459, 456 A.2d at 903). For example, in B&K; Rentals & Sales Co. v. Universal Leaf Tobacco Co., we abandoned the common law rule of res gestae in favor of the version set forth in the Federal Rules of Evidence, after noting our "[i]ncreased knowledge," "the guidance of a significant majority of other states," and the near-universal condemnation of the common law rule by both courts and commentators. 324 Md. 147, 158, 596 A.2d 640, 645 (1991). Similarly, in Julian v. Christopher, we departed from our prior interpretation of silent consent clauses allowing landlords to refuse unreasonably and arbitrarily a lessee's request to sublet or assign a lease in favor of a standard of reasonableness, after noting summarily that the common law interpretation is a "vestige of the past" and contrary to established public policy. 320 Md. 1, 8-9, 575 A.2d 735, 738-39 (1990).

This Court has shown a willingness to depart from its stale decisions even where we expressed previously an intention to defer to legislative action on a longstanding, but widely-disfavored, common law rule. For example, we declined for decades to abrogate the common law interspousal immunity doctrine prohibiting married women from maintaining actions in tort against their husbands, in each instance deferring expressly to the Legislature. See Stokes v. Ass'n of Indep. Taxi Operators, Inc., 248 Md. 690, 692, 237 A.2d 762, 763 (1968) ("[I]f the rule is to be changed, the Legislature will have to do it."); Ennis v. Donovan, 222 Md. 536, 543, 161 A.2d 698, 702 (1960) ("We can only repeat that if it be desirable to permit a married woman, under certain circumstances, to sue her husband in tort, this authorization should emanate from the Legislature, not from the courts."); Fernandez v. Fernandez, 214 Md. 519, 524, 135 A.2d 886, 889 (1957) ("We think the appellant here must proceed in equity unless the Legislature sees fit to change the law."); Gregg v. Gregg, 199 Md. 662, 667, 87 A.2d 581, 583 (1952) ("[T]hese ancient theories which form a part of the common law have to be followed by us unless they have been changed by legislative action. . . .").

Shortly after our decision in Harrison, however, we abrogated the common law doctrine of interspousal immunity in negligence actions.^[14]Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983). In so doing, we distanced ourselves from our prior cases and characterized the decision as one appropriate for judicial action.^[15] We considered persuasive the evolution of society's conceptions regarding women and the trend toward abrogation in other states, concluding that the foundation of the doctrine no longer coincided with modern values. Thus, we determined that we could depart fairly from principles of stare decisis and overrule the doctrine's application in negligence actions as a "vestige of the past." Id. at 273-75, 462 A.2d at 521-22. We distinguished Harrison, however, as both possessing a history of legislative inaction on proposed bills (lacking in the context of interspousal immunity) and involving necessarily more complex issues, stating that Harrison represented an attempt to grant judicially that which "the Legislature repeatedly had rejected efforts to achieve legislatively." Id. at 274, 462 A.2d at 521. Yet, we emphasized that, despite our decision in Harrison, it remains well within the authority of this Court to abrogate an outmoded rule of the common law. Id. at 274, 462 A.2d at 522.

We abandoned completely the doctrine of interspousal immunity finally in Bozman v. Bozman, 376 Md. 461, 830 A.2d 450 (2003). We noted that, because forty-six states had done so already, in full or in part, "the trend and, indeed, the great weight of authority" was in favor of abrogating the common law doctrine as "outdated and serv[ing] no useful purpose." Id. at 487-88, 830 A.2d at 466. Although we acknowledged that certain aspects of the common law concept, upon which the doctrine rested at its conception, would be retained in various provisions of the Maryland Code, we found such remnants insufficient to shield the doctrine from judicial abolition. Id. at 489, 830 A.2d at 466-67. Considering the decisions of our sister jurisdictions to be persuasive authority in analyzing the arguments "both in support of, and against, retention of the interspousal immunity rule," id. at 490, 830 A.2d at 467, we determined that the doctrine of stare decisis did not require strict adherence to the doctrine or continued legislative deference. Id. at 494-95, 830 A.2d at 470.

Thus, as our abrogation of the interspousal tort immunity doctrine demonstrates, this Court has not only the power, but also the responsibility (Harrison notwithstanding) to abrogate the doctrine of contributory negligence if it concludes that the state of society and law have changed so that contributory negligence is a vestige of the past, unsuitable to the conditions of modern life. To that end, this Court reviews the foundation of the doctrine to determine its continued relevance in modern society, and considers persuasive, although not binding, the actions of other states on this issue. See id. at 490, 830 A.2d at 467. Additionally, we may analyze, to some degree (limited by the factual record before us), "the public policy concerns raised by the parties and by the other courts which have grappled with this issue." State v. Wiegmann, 350 Md. 585, 607, 714 A.2d 841, 851 (1998) (quoting Gaver v. Harrant, 316 Md. 17, 30, 557 A.2d 210, 217 (1989)).

As noted above, the widespread acceptance of contributory negligence as a complete defense is attributed principally to (1) the desire to protect the nations' newly-developing industry from liability and plaintiff-minded juries, E.A. Turk, Comparative Negligence on the March, 28 Chi.-Kent L. Rev. 189, 201 (1950); 4 Harper, James & Gray, supra, § 22.1 at 328-30; and (2) "the concept prevalent at the time that a plaintiff's irresponsibility in failing to use due care for his own safety erased whatever fault could be laid at defendant's feet for contributing to the injury." Scott v. Rizzo, 634 P.2d 1234, 1237 (N.M. 1981) (citing F. Harper and F. James, Law of Torts, § 22.1 at 1198 (1956)). Neither of these justifications, however, carry weight in present-day Maryland. In today's society,^[16] there has been no need demonstrated to protect any "newly-developing" industry at the expense of injured litigants. Industry generally in this nation is no longer fledgling or so prone to withering at the prospect of liability. See, e.g., Alvis v. Ribar, 421 N.E.2d 886, 893 (Ill. 1981) ("There is no longer any justification for providing the protective barrier of the contributory negligence rule for industries of the nation at the expense of deserving litigants."); Frummer v. Hilton Hotels Int'l, Inc., 304 N.Y.S.2d 335, 341-42 (N.Y. Sup. 1969) ("Courts now do not feel any need to act as a protector of our nation's infant industries, for their infancy has long since passed. . . . In an age where a defendant may through various means, such as insurance, readily protect himself from a ruinous judgment, the solicitude of nineteenth century courts for defendants is certainly out of place. . . ."). Moreover, tilting the scales to favor industry is inconsistent with modern conceptions of justice, which focus instead on proportional responsibility and fundamental fairness. See Hilen v. Hays, 673 S.W.2d 713, 718 (Ky. 1984) ("It may well be that the 19th century judicial mind perceived of the need for courts to tilt the scales of justice in favor of defendants to keep the liabilities of growing industry within some bounds. But assuming such a rule was ever viable, certainly it no longer comports to present day morality and concepts of fundamental fairness." (internal citation and quotation marks omitted)); Robert H. Lande & James MacAlister, Comparative Negligence with Joint & Several Liability: The Best of Both Worlds, U. Balt. L. Rev. Online 1, 2 (2012) (noting that Maryland's system of contributory negligence "frustrate[s] the interests of justice as to the litigants"). Rather, the array of Amici lined up in support of the continuation of contributory negligence is populated by the entrenched and established business interests who seek to maintain an economic advantage.

The evolution of society's conceptions of justice is exemplified by the move of tort law away from traditional "all-or-nothing" recovery rules and toward allocation of the burden of liability among at-fault parties. Guido Calabresi & Jeffrey O. Cooper, The Monsanto Lecture: New Directions in Tort Law, 30 Val. U. L. Rev. 859, 868 (1995). Liability, in negligence actions, "follows tortious conduct." Austin v. Mayor & City Council of Baltimore, 286 Md. 51, 83, 405 A.2d 255, 272 (1979) (Cole, J., dissenting); Scott, 634 P.2d at 1241 ("Liability based on fault is the cornerstone of tort law. . . ."). Contributory negligence is at odds with this fundamental premise. By barring recovery completely to a contributorily negligent plaintiff, the rule "visits the entire loss caused by the fault of two parties on one of them alone, and that one the injured plaintiff, least able to bear it, and quite possibly much less at fault than the defendant who goes scot-free." Prosser, Comparative Negligence, supra, at 469.

Respondent and its Amici count as a strength of the doctrine of contributory negligence its inflexibility in refusing to compensate any, even marginally, at-fault plaintiff. They argue that, in so doing, contributory negligence encourages personal responsibility by foreclosing the possibility of recovery for potential, negligent plaintiffs, and thus cannot possibly be outmoded.^[17] To the contrary, that the doctrine of contributory negligence grants one party a windfall at the expense of the other is, as courts and commentators alike have noted, unfair manifestly as a matter of policy. See, e.g., Kaatz v. State, 540 P.2d 1037, 1048 (Alaska 1975) ("The central reason for adopting a comparative negligence system lies in the inherent injustice of the contributory negligence rule."); Hoffman v. Jones, 280 So.2d 431, 436 (Fla. 1973) ("Whatever may have been the historical justification for [the rule of contributory negligence], today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss."); Lande & MacAlister, supra, at 4 ("The `all or nothing' system [of contributory negligence], disconnected from a party's degree of fault, is unfair and counterintuitive."); Prosser, Comparative Negligence, supra, at 469 (characterizing contributory negligence as "outrageous" and an "obvious injustice" that "[n]o one has ever succeeded in justifying . . ., and no one ever will"). Moreover, if contributory negligence encourages would-be plaintiffs to exercise caution with respect to themselves, then so too does the doctrine of comparative fault by reducing the plaintiff's recoverable damages. Unlike contributory negligence, however, comparative fault deters also negligence on the part of the defendant by holding him or her responsible for the damages that he or she inflicted on the plaintiff. See Lande & MacAlister, supra, at 5-6 (noting that, although contributory negligence systems "burden[] only plaintiffs with the obligation to take precautions," comparative negligence provides a "mixture of responsibility" that is "the best way to prevent most accidents"); Prosser, Comparative Negligence, supra, at 468 ("[T]he assumption that the speeding motorist is, or should be meditating on the possible failure of a lawsuit for his possible injuries lacks all reality, and it is quite as reasonable to say that the rule promotes accidents by encouraging the negligent defendant."). Thus, Respondent's contention that contributory negligence encourages personal responsibility, and is therefore preferable to comparative negligence, is unpersuasive.

Respondent contends also that the foundation of contributory negligence remains strong because, as we said in Harrison, "Maryland cases do not reflect any general dissatisfaction with the contributory negligence doctrine." 295 Md. at 458, 456 A.2d at 898. That the courts of this State have applied uniformly the doctrine, however, does not mean that we did not recognize along the way its flaws.^[18]See Bozman, 376 Md. at 472, 830 A.2d at 457. For example, as Judge Eldridge noted recently, our retention of contributory negligence garnered extensive criticism — "few if any other legal principles have been criticized as much as this Court's continued adherence in negligence actions to the doctrine of contributory negligence and the Court's refusal to adopt comparative negligence." State v. Adams, 406 Md. 240, 332, 958 A.2d 295, 351 (2008) (Eldridge, J., dissenting), overruled by Unger v. State, 427 Md. 383, 48 A.3d 242 (2012). The Court of Special Appeals also noted similar criticism, calling the doctrine "harsh and pitiless," and noted that we are among the severe minority of states adhering still to it. See Preston Carter v. Senate Masonry, Inc., 156 Md. App. 162, 175, 846 A.2d 50, 58 (2004); see also Stewart v. Hechinger Stores Co., 118 Md. App. 354, 359, 702 A.2d 946, 949 (1997) ("Although we are aware of the often harsh consequences of Maryland's common law doctrine of contributory negligence, and that it has been abandoned by a vast majority of states in favor of some form of comparative negligence, we are in no position summarily to do so.").

Moreover, since our decision in Harrison, the doctrine of comparative negligence has continued to be accepted elsewhere as the superior legal principle. At the time Harrison was decided, thirty-nine states had replaced the doctrine of contributory negligence with some form of comparative negligence. See 295 Md. at 453, 456 A.2d at 899. This trend has continued unabated. Today, the number of states applying comparative negligence is forty-six, and not one jurisdiction adopting it has since retreated and re-adopted contributory negligence. Rather, seven additional states have enacted comparative negligence systems since Harrison. What was at the time of Harrison a quickening trend within the United States is today an established principle of law in nearly every right-thinking common law jurisdiction in the world, see Placek v. City of Sterling Heights, 275 N.W.2d 511, 515 (Mich. 1979) ("[A]lmost every common-law jurisdiction outside the United States has discarded contributory negligence and has adopted in its place a more equitable system of comparative negligence."); John W. Wade, A Uniform Comparative Fault Act — What Should it Provide?, 10 U. Mich. J. L. Reform 220, 221 (1977) (noting that after England, Canada, and Australia abrogated contributory negligence, the United States became the "primary location of the contributory negligence rule"), with the exception of Maryland, Alabama, the District of Columbia, North Carolina, and Virginia. See 2 Dobbs, supra, § 220 at 772.

Respondent argues, in effect, that there has not been a significant change in the state of law or society since Harrison, and therefore there is no reason to depart from stare decisis and reconsider whether the doctrine of contributory negligence should be retained in the State of Maryland. I could not disagree more. At the time Harrison was decided, the country was in the midst of a broad reform effort sweeping the nation. The doctrine of comparative fault was of fairly recent vintage at the time Harrison was filed, adopted in most states in the ten years prior to our decision. See Robert D. Cooter & Thomas S. Ulen, An Economic Case for Comparative Negligence, 61 N.Y.U. L. Rev. 1067, 1075 (1986) (noting that most states adopted comparative negligence in the 1970s and early 1980s). Essentially, Respondent contends that, because our decision in Harrison was made when the movement toward reform of negligence principles was well underway, this Court is constrained to retain the doctrine forever, having missed the single opportunity to get on board the train. Respondent's argument seems to suggest that, so long as there is some delay in abandoning an unjust law, the unjust law remains irretrievably an albatross tied around the neck of our common law, unless and until the Legislature decides to save us.^[19] As our decision in Bozman demonstrates, however, our authority to modify the common law and overrule prior decisions is not so limited.

Although only seven additional states have implemented comparative fault since Harrison, forty-six states now employ comparative fault.^[20] Comparative fault is no longer a trend or a doctrine of recent vintage, but rather is an established and integral doctrine to the negligence systems of nearly every state in the country. Other jurisdictions, most notably those that abrogated contributory negligence judicially, have decades of experience applying comparative fault — experience that, in large part, was lacking at the time we decided Harrison. The twelve states to abrogate contributory negligence by judicial decision provide examples of how comparative negligence is applied, how it impacts collateral doctrines and fault systems, and how it is applied in reality.^[21] In essence, this Court may foresee more clearly today potential impacts and complications, as well as the value of a comparative fault system, than was possible in 1983. Maryland is no longer at the crest of a wave of reform — instead, it has been left behind, one of the last bastions of contributory negligence in a world which has discarded it as unjust and outmoded. In my estimation, this qualifies certainly as a significant change warranting reconsideration of Harrison.

Although I recognize certainly the value of the doctrine of stare decisis, see, e.g., Unger v. State, 427 Md. 383, 418, 48 A.3d 242, 262 (2012) (Harrell, J., dissenting), I do not believe that in this instance, strict adherence is appropriate or warranted. See, e.g., Alvis, 421 N.E.2d at 896 ("Clearly, the need for stability in law must not be allowed to obscure the changing needs of society or to veil the injustice resulting from a doctrine in need of reevaluation."); McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992) (declining to "mindless[ly]" follow stare decisis). I do not believe that because Harrison reaffirmed the vitality of contributory negligence in this State, absent legislative action, this Court is muted forever on the topic. The bounds of stare decisis are not so strict. Continued adherence to the doctrine of contributory negligence as rote obeisance to the principles of stare decisis and legislative deference "represents judicial inertia rather than a reasoned consideration of the intrinsic value of the rule." Kaatz, 540 P.2d at 1049. Contributory negligence is no longer justified, has been discarded by nearly every other jurisdiction, and is manifestly unjust. Thus, I conclude that contributory negligence is a vestige of the past, and that in considering whether to abrogate the doctrine of contributory negligence, we are not bound by our decision in Harrison.

B. This Court Need Not Defer to Continued Legislative Inaction

Respondent argues that, notwithstanding our decision in Harrison, whether to abrogate contributory negligence in favor of comparative fault is a matter more properly suited to the legislative, rather than judicial, process. In Harrison, we noted that "in considering whether a long-established common law rule — unchanged by the legislature and thus reflective of this State's public policy — is unsound in the circumstances of modern life, we have always recognized that declaration of the public policy of Maryland is normally the function of the General Assembly." 295 Md. at 460, 456 A.2d at 903. Because declaration of public policy is generally a matter for the Legislature, we declared our "particular[] reluctan[ce] to alter a common law rule in the face of indications that to do so would be contrary to the public policy of the State[,]" id., and noted that we owe "initial deference to the legislature where change is sought in a long-established and well-settled common law principle." Id. at 461, 456 A.2d at 904.

In considering whether the doctrine of contributory negligence was declared the public policy of the State of Maryland, we placed particular emphasis on the Legislature's consideration of numerous bills proposing to adopt the doctrine of comparative negligence. Specifically, we noted that between 1966 and 1982, the General Assembly considered twenty-one bills proposing the adoption of comparative negligence, yet none passed. Id. "Although not conclusive," we stated, "the legislature's action in rejecting the proposed change is indicative of an intention [on the part of the Legislature] to retain the contributory negligence doctrine." Id.

Our statements in Harrison did not circumscribe, however, our authority to alter judicially-created common law rules in the face of repeated legislative inaction on the subject. Although we have declined frequently to effect changes in decisional doctrine upon observing repeated legislative inaction, see, e.g., Potomac Valley Orthopaedic Assocs. v. Md. State Bd. of Physicians, 417 Md. 622, 639-40, 12 A.3d 84, 94 (2011) ("Our conclusion is confirmed by the fact that, in 2007, 2008, 2009, and 2010, the General Assembly `rejected efforts to achieve legislatively that which we [are being] asked to grant judicially.'" (alterations in original) (citation omitted)); Moore v. State, 388 Md. 623, 641, 882 A.2d 256, 257 (2005) ("Legislative inaction is very significant where bills have repeatedly been introduced in the General Assembly to accomplish a particular result, and where the General Assembly has persistently refused to enact such bills."), we determined, on multiple occasions, that legislative inaction may not be a sufficient premise from which to draw a positive legislative intent in certain situations. See, e.g., City of Balt. Dev. Corp. v. Carmel Realty Assocs., 395 Md. 299, 329, 910 A.2d 406, 424 (2006) (cautioning against drawing a positive inference from legislative inaction because "the General Assembly may well have. . . decided not to enact the amendment for a myriad of other reasons"); Goldstein v. State, 339 Md. 563, 570, 664 A.2d 375, 378 (1995) ("[T]he mere fact that the General Assembly has declined to adopt a particular proposal does not preclude this Court from incorporating the substance of that proposal into the common law. . . ."); Automobile Trade Assoc. of Md., Inc. v. Ins. Comm'r, 292 Md. 15, 24, 437 A.2d 199, 203 (1981) ("[T]he fact that a bill on a specific subject fails of passage in the General Assembly is a rather weak reed upon which to lean in ascertaining legislative intent."); Cicoria v. State, 89 Md. App. 403, 428 n.9, 598 A.2d 771, 775 n.9 (1991) (noting that "[t]rying to determine what the legislature intended (or did not intend) by rejecting those bills is no easy assignment" and declining to draw either a positive or negative inference from the rejected bills).

Although the Harrison court opted to defer to the Legislature, the opinion in that case gives no indication that such deference was unlimited. No acknowledgment was advanced that we lack the authority to alter a long-standing common law rule where the Legislature declines to enact proposed legislation. Rather, we expressed that we are "particularly reluctant" to do so, and that we give "initial deference" to the Legislature when considering a change to long-standing common law principles. Harrison, 495 Md. at 460-61, 456 A.2d at 903-04 (emphasis added). Further, we did not characterize the inaction of the General Assembly as a conclusive, definitive declaration of public policy — to the contrary, we specifically stated that legislative inaction is "not conclusive" and merely "indicative of an intention to retain the doctrine of contributory negligence." Id. at 461, 456 A.2d at 904.

I acknowledge, of course, that legislative consideration of comparative negligence did not cease with our decision in Harrison. The General Assembly considered numerous comparative negligence bills since Harrison, but has not to this date reached an agreement that comparative negligence should become the law of this State by legislative act.^[22] The pace of consideration of comparative negligence bills slowed dramatically in recent years, however. Since 2003, the General Assembly considered the adoption of comparative negligence only once, see H.B. 110, 2007 Leg., 423d Sess. (Md. 2007), crossfiled with S.B. 267, 2007 Leg., 423d Sess. (Md. 2007), whereas in the ten years preceding Harrison (1974-83), the Legislature considered ten independent bills. See H.B. 1007, 1982 Leg., 388th Sess. (Md. 1982); H.B. 633, 1981 Leg., 387th Sess. (Md. 1981); H.B. 98, 1980 Leg., 386th Sess. (Md. 1980); H.B. 1484, 1980 Leg., 386th Sess. (Md. 1980); H.B. 1381, 1979 Leg., 385th Sess. (Md. 1979); H.B. 1386, 1979 Leg., 385th Sess. (Md. 1979); H.B. 2004, 1977 Leg., 383d Sess. (Md. 1977); H.B. 377, 1976 Leg., 382d Sess. (Md. 1976); S.B. 106, 1976 Leg., 382d Sess. (Md. 1976); H.B. 405, 1975 Leg., 380th Sess. (Md. 1975). No favorable committee action has been taken on a comparative negligence bill since 1988. See Department of Legislative Services, Negligence Systems: Contributory Negligence, Comparative Fault, and Joint and Several Liability 31 (2004) (hereinafter "Negligence Systems").

Declining to perpetuate unmindful deference to the Legislature on such a topic would not be without precedent. For example, as noted above, this Court stated repeatedly its intention to defer to legislative action on the topic of interspousal immunity before acting. See Stokes, 284 Md. at 692, 237 A.2d at 763; Ennis, 222 Md. at 543, 161 A.2d at 702; Fernandez, 214 Md. at 524, 135 A.2d at 889. Decades later, after noting the Legislature's continued stasis on the subject, we rescinded our deference and modernized an outdated common law rule. See Bozman, 376 Md. 461, 830 A.2d 450; Boblitz, 296 Md. 242, 462 A.2d 506.

Other states, too, abrogated judicially the doctrine of contributory negligence in spite of legislative inaction on proposed bills of like objective.^[23] For example, during the approximately fifteen years prior to the Kentucky Supreme Court's abrogation of contributory negligence in 1984, the Kentucky Legislature considered a comparative negligence bill "in most, if not all" legislative sessions. Hilen, 673 S.W.2d at 717. Yet, despite legislative consideration of (and inaction on) the issue, the Kentucky Supreme Court abrogated the doctrine, noting its systematic rejection, "first legislatively, and then judicially where the legislature has refused to act." Id. at 716-17. Similarly, the Missouri Supreme Court deferred repeatedly to legislative consideration and an opportunity to act for over five years, noting that ordinarily the policy considerations implicit in making such a doctrinal change were more appropriate for the legislature, particularly in light of increased legislative interest in the topic. See Steinman v. Strobel, 589 S.W.2d 293, 294 (Mo. 1979); Epple v. Western Auto Supply Co., 557 S.W.2d 253, 254 (Mo. 1977). Indeed, even after applying a nudge to the legislature by abandoning "active-passive negligence" in favor of comparative fault principles in cases involving multiple defendants, see Missouri Pac. R.R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. 1978), the Missouri Supreme Court continued to express its preference for legislative action. Steinman, 589 S.W.2d at 294. By 1983, however, shortly after our decision in Harrison, the Missouri Supreme Court decided it had waited long enough and abrogated contributory negligence generally by judicial decision, stating, "We have remained quiescent more than five years while waiting for the legislature to act." Gustafson v. Benda, 661 S.W.2d 11, 15 (Mo. 1983).

The New Mexico Supreme Court asserted that its legislature's inaction on proposed bills could be "indicative of its belief that it is more appropriate for the judiciary than the legislature to open the door which the judiciary initially closed." Scott, 634 P.2d at 1238-39. It characterized further legislative inaction as resulting from "legislative inertia," rather than from a principled policy decision. Id. The Illinois Supreme Court also noted that a stalemate caused by a "mutual state of inaction in which the court awaits action from the legislature and the legislature awaits guidance from the court" constitutes a "manifest injustice to the public." Alvis, 421 N.E.2d at 896. In such a situation, the court said, "it is the imperative duty of the court to repair that injustice and reform the law to be responsive to the demands of society." Id. Consequently, we should put an end to the staring contest in Maryland and act to conclude the Alphonse & Gaston routine that has settled in between our two branches of government.

Respondent also contends that, the abstract principle of deference to legislative inaction notwithstanding, replacing the doctrine of contributory negligence is a task more appropriate for legislative action because that potential deliberative and comprehensive decision-making process is suited better to resolution of the complex policy considerations involved in adopting comparative fault and its collateral impacts. The Harrison court expressed a particular reluctance to abrogate contributory negligence due to the nature of comparative negligence as not being "a unitary doctrine[,] but one which has been adopted by other states in either a pure or modified form." 295 Md. at 462, 456 A.2d at 904. Characterizing the choice between pure and modified comparative fault as "a policy issue of major dimension," this Court opted in 1983 to leave the choice to the General Assembly. Id. at 463, 456 A.2d at 905. Respondent contends that, because this decision implicates policy considerations and this Court is limited in its consideration of the impact on collateral doctrines and principles by the facts of this case,^[24] we should continue to refrain from adopting comparative negligence and disrupting long-settled law to avoid confusion and disarray in our courts. Moreover, Respondent and its Amici argue that abolishing the doctrine of contributory negligence is bad public policy. They contend that in so doing, we would inject chaos and uncertainty into an area of settled law, and increase litigation, insurance rates, and taxes.^[25]

Although the transition from contributory to comparative negligence systems is plainly "a policy issue of major dimension," I do not think that it is an issue on which awaiting legislative catharsis is appropriate any longer. Contributory negligence is a spawn of the court system — and as such, this Court is eminently able and uniquely situated to stay the course. Moreover, as the South Carolina Court of Appeals noted, the potential for a legislative body to affect comprehensively a doctrinal substitution has not proven out uniformly in execution. Langley v. Boyter, 325 S.E.2d 550, 560 (S.C. App. 1984), quashed, 332 S.E.2d 100 (S.C. 1984), cited with approval, Nelson v. Concrete Supply Co., 399 S.E.2d 783, 784 (S.C. 1991) ("[T]he history of legislative action in the various states which have adopted the doctrine [of comparative negligence] by statute reveals that comprehensive statutes are not usually adopted."). Rather, most states adopting comparative negligence via legislative act have enacted short-form statutes that leave most doctrinal issues to be shaped and developed by the courts. Id.

Additionally, deferring this issue to a future court or legislative session on grounds that the present case offers insufficient facts to reach binding declarations regarding all collateral doctrines and principles does not weigh so heavily as this Court's responsibility to administer justice. As this argument goes, "in essence, . . . where a court cannot correct all injustice, it should correct none." Id. I am not persuaded that making the change by judicial decision, necessarily leaving some further development of the doctrine of comparative negligence to another day, will wreak havoc on our system of justice or the State's economy. To the contrary, the experiences of other states, having made an analogous change,"provide an accurate barometer of what can be expected after abrogation." Bozman, 376 Md. at 496, 830 A.2d at 471. In the twelve other states to abrogate by judicial decision the doctrine of contributory negligence, there is scant evidence that the judicial system was thrown into unmanageable disarray. In fact, other courts noted that "the fears of administering the doctrine are greater than the reality," and that the difficulties presumed inherent in the adoption of comparative negligence "are outweighed by the injustices attendant upon any delay in adopting the comparative negligence (fault) rule." Scott, 634 P.2d at 1239, 1241.

I recognize that a shift to comparative fault implicates numerous collateral doctrines. I expect fully that questions will arise about the application of comparative fault in practice in the State of Maryland that cannot be answered conclusively in the present case. This Court would be well-served, however, to place trust in the full array of the Judiciary of this State to administer faithfully the principles of comparative negligence in accordance with this Court's direction. Thus, I reject Respondent's contention that this matter is best left to a legislative enactment that might address all potential applications of the doctrine of comparative negligence in a single coup, rather than trusting to the incremental decisions that follow in the common law tradition, beginning with a seminal action by this Court.

III. This Court Should Adopt Pure Comparative Fault

Having concluded, as I have, that the doctrine of contributory negligence must fall, the question becomes: what form of comparative negligence should be adopted? Although the precise formulations of comparative fault systems may vary, there are essentially two basic forms: pure and modified.

Under a system of pure comparative fault, damages are apportioned among the parties according to the fact finder's determination of the percentage that each party's negligence contributed to the injury. Cooter & Ulen, supra, at 1076. A plaintiff is permitted to recover from the defendant (or defendants) the portion of his or her damages which the defendant (or defendants) caused — regardless of the quantum of the plaintiff's contributory negligence. 4 Harper, James & Gray, supra, § 22.15 at 458. Thus, even if the plaintiff's degree of fault exceeds that of the defendant (or defendants), the plaintiff may recover damages reduced by the proportion that the plaintiff is at fault. See id.; Digges & Klein, supra, at 280.

Modified comparative fault, by contrast, considers relevant the proportion of the plaintiff's relative fault in varying degrees, depending on the standard adopted. Under such systems, a plaintiff "escapes the contributory negligence bar only if his share of the responsibility falls within a specified limitation." 4 Harper, James & Gray, supra, § 22.15 at 458. States that adopt a modified system generally choose one of two forms, allowing recovery of damages by a plaintiff reduced by the percentage of his or her own fault if either (1) the plaintiff's relative fault is less than the combined fault of all of the defendants;^[26] or (2) the plaintiff's relative fault is not greater than the combined fault of all of the defendants.^[27],^[28]

This Court should adopt for Maryland pure comparative negligence. Pure comparative negligence is favored almost universally by legal scholars and academics. It is "the fairest, most logical and simplest to administer of all available systems." Goetzman, 327 N.W.2d at 754. Because pure comparative negligence emphasizes the relationship of an individual's fault to the ultimate damages, "[n]either party is unjustly enriched[, and] [n]either party escapes liability resulting from his negligent acts or omissions." Alvis, 421 N.E.2d at 897. The shades of gray in jury determinations^[29] assigning proportions of fault is not, in a pure system, the difference between substantial recovery and no recovery at all. See Prosser, Comparative Negligence, supra, at 493-94 ("It is obvious that a slight difference in the proportionate fault [under a modified system] may permit a recovery; and there has been much quite justified criticism of a rule under which a plaintiff who is charged with 49 per cent of the total negligence recovers 51 percent of his damages, while one who is charged with 50 per cent recovers nothing at all."). Critics of pure comparative negligence call it a "radical break" from the principles of contributory negligence, and view a modified version instead as a logical evolution away from contributory negligence. See Bradley v. Appalachian Power Co., 256 S.E.2d 879, 885 (W.Va. 1979) (noting an unwillingness "to abandon the concept that where a party substantially contributes to his own damages, he should not be permitted to recover for any part of them"). Pure comparative negligence, however, more closely hews to the principle on which comparative fault systems are based — that liability should be commensurate with fault, and that individuals are responsible to the extent that their fault results in injury. See Goetzman, 327 N.W.2d at 753-54; Lande & MacAlister, supra, at 9 ("[O]nly a `pure' system protects all the deserving injured, is fair to defendants, optimally deters negligent behavior, and fosters the greatest sense of justice, fairness, and respect for the law on the part of juries.").

Moreover, although pure comparative negligence is the numerically minority choice nationally,^[30] it is the preferred version among states adopting comparative negligence by judicial decision. Nine of the twelve states adopting comparative negligence judicially have chosen a pure system,^[31] while three chose a modified version.^[32] Modified systems "reintroduce in large measure the very same all-or-nothing feature of contributory negligence that the remedy of comparative negligence is designed to overcome," by establishing a new set point at which recovery for a contributorily negligent plaintiff is barred. 4 Harper, James & Gray, supra, § 22.15 at 463; see also Li, 532 P.2d at 1242 (criticizing a modified system as simply shifting the "lottery aspect" of contributory negligence to a different set point); Alvis 421 N.E.2d at 898 ("There is no better justification for allowing a defendant who is 49% at fault to completely escape liability than there is to allow a defendant who is 99% at fault under the old rule to escape liability."). Maryland courts should apply a system of pure comparative fault in negligence actions.

IV. Some Ruminations on the Possible Effect on Collateral Doctrines of the Adoption of Comparative Fault

Adopting a system of comparative fault will impact undoubtedly numerous collateral doctrines in the law of torts, as we recognized in Harrison. Indeed, as the Florida Supreme Court acknowledged, "the prospect of a general upheaval in pending tort litigation has always been a deterring influence in considering the adoption of a comparative negligence rule." Hoffman v. Jones, 280 So.2d 431, 439 (Fla. 1973). Although the facts of the present case and Petitioner's questions for which we issued a writ of certiorari do not permit a binding consideration of the possible effects on these collateral doctrines, it is prudent nonetheless to itemize and comment on here a few, but by no means an exhaustive list, of the potential impacts of a decision to adopt comparative negligence.

Even after the abrogation of contributory negligence, the spirit of that doctrine will remain in some statutory provisions. For example, as Respondent and its Amici point out, the principles of contributory negligence are codified in various limited contexts in the Maryland Code. That remnants of a discarded common law doctrine may remain after its abolition does not provide, however, a reason to retain it in its entirety for all purposes. Cf. Bozman, 376 Md. at 488, 830 A.2d at 466 (acknowledging that despite the Court's abolition of the doctrine of interspousal immunity, remnants of the common law concept upon which the doctrine was based remain in Maryland law). We do not have the authority to overrule any principles of contributory negligence embedded currently in the statutory law of this State. See Md. Const. Decl. of Rts. art. 8. Thus, where the Legislature codified these principles as a complete bar to recovery in those limited contexts, it will continue to serve as a defense in those actions governed by the relevant statute, unless and until the General Assembly decides otherwise. See Md. Code (1977, 2009 Repl. Vol.), Transportation Article § 19-101(b) ("This State or a political subdivision of this State may use the defense of contributory negligence and assert the doctrine of last clear chance in an action brought or defense raised under this section."); Md. Code (1977, 2009 Repl. Vol.), Transportation Article § 19-102(c) ("This State or a political subdivision of this State may use the defense of contributory negligence and assert the doctrine of last clear chance in an action brought or defense raised under subsection (b) of this section."). Where the principles of contributory negligence have not been codified, however, the doctrine of pure comparative negligence, as the common law of this state, should apply henceforth.^[33]

Interestingly, concepts of contributory negligence will continue to be embedded in Maryland common law under a comparative fault system. The adoption of comparative fault abolishes the doctrine of contributory negligence as a complete bar to a plaintiff's recovery, but an individual's "contributory negligence" remains relevant as a consideration in determining his or her degree of fault in contributing to his or her injury. Thus, statutes that disallow presently certain conduct from consideration as evidence of contributory negligence may have continued applicability in a comparative fault system,^[34] while others may merit consideration for revision by the General Assembly to make their continued applicability in a comparative fault system, if any, more clear. See, e.g., Md. Code (1973, 2006 Repl. Vol.), Courts & Judicial Proceedings Article, § 3-1607 ("A defendant in an action under this subtitle may not raise a defense of assumption of risk or contributory negligence based on the use of a controlled dangerous substance by the deceased individual."); Md. Code (2007, 2012 Supp.), Human Services Article, § 7-704(b)(2) ("The failure of a blind or visually impaired pedestrian to carry a cane . . . does not constitute contributory negligence per se.").

Respondent and its Amici contend further that the adoption of comparative fault will have serious effects on the fiscal health of our State and local government. Because the unavailability of contributory negligence as an absolute bar to recovery will increase the number of "meritless claims presented," they argue, governments will face increased liability. The possibility that state and local governmental liability may increase following the adoption of comparative fault is by no means certain. There is no evidence, and indeed Amici provide none, that other states have experienced skyrocketing governmental liability and fiscal disaster following the adoption of comparative negligence. Moreover, the adoption of comparative fault by no means limits the reactive power of the General Assembly. To the contrary, the Legislature remains in the position to observe the actual impacts of a comparative fault system in Maryland and adopt or amend statutes accordingly, if it deems change necessary.^[35] Moreover, if, as Amici contend, the General Assembly intended the defense of contributory negligence to apply to actions brought under the Local Government Tort Claims Act ("LGTCA"), despite failing to codify expressly that defense, see Md. Code (1973, 2006 Repl. Vol.), Courts & Judicial Proceedings Article, § 5-303, the Legislature has the authority to amend explicitly the LGTCA to so provide.

Respondent and its Amici express particular concern over the continued vitality of the principles of joint and several liability, and the attendant issue of contribution among joint tortfeasors, in a comparative fault system. I recognize that, following the adoption of a comparative fault system, the continued vitality and fairness of the doctrine of joint and several liability merits specific attention. Indeed, most states adopting comparative negligence have revisited this issue, see, e.g., McIntyre, 833 S.W.2d at 58 ("Having thus adopted a rule more closely linking liability and fault, it would be inconsistent to simultaneously retain a rule, joint and several liability, which may fortuitously impose a degree of liability that is out of all proportion to fault."), although little consensus among states resulted.^[36] Because joint and several liability is not implicated by the facts of the present case, however, we reserve the evaluation and determination of whether a departure from common law joint and several liability is warranted, and, if so, in what circumstances.

We also recognize that, regardless of the impact of a reconsideration of the applicability of joint and several liability, there may exist at least a theoretical inconsistency between the Uniform Contribution Among Tortfeasors Act ("UCATA") as codified at Md. Code (1973, 2012 Supp.), Courts & Judicial Proceedings Article, §§ 3-1401-09, and a system of comparative negligence. While the touchstone of a system of comparative negligence is the imposition of liability in direct proportion to one's fault, the current provisions of the UCATA permit one joint tortfeasor to obtain contribution from another joint tortfeasor if he, she, or it has paid more than his, her, or its "pro rata share." Id. at § 3-1402. A pro rata share is understood generally, however, as an equal share of the common liability, rather than a share based on an individual's proportion of fault, and thus may be inconsistent with the foundations of comparative negligence.^[37]See Hashmi v. Bennet, 416 Md. 707, 719 n.13, 7 A.3d 1059, 1066 n.13 (2010) (quoting Lahocki v. Contee Sand & Gravel Co., 41 Md. App. 579, 616, 398 A.2d 490, 511 (1979), rev'd on other grounds sub nom, General Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039 (1980)). Abiding future legislative action and/or appellate opinions, however, contribution among joint tortfeasors should continue to apply in pro rata shares.

Another potential issue for future resolution is the determination of which parties should be included in the pool of fault — specifically, how uncharged parties and released tortfeasors are treated under a comparative fault scheme in apportioning fault. The UATRA, for example, compares fault only among those individuals or entities that are actual parties to the litigation, but does not preclude any defendant from pursuing a nonparty. It contains an exception, however, for released tortfeasors, requiring that the responsibility of released tortfeasors be considered in apportioning fault among non-released parties. States are split on this approach — some follow the UATRA; others that initially adopted the UATRA approach amended their laws later to require apportionment of fault to nonparties; and, still others permit, but do not require, the consideration of nonparties in apportioning fault. See Rules Committee Report, supra, at 19-20.

Although I would decide today to apply a system of pure comparative fault only to negligence actions, other states adopting systems of comparative fault have confronted the breadth with which a system of comparative fault should be applied — in particular, whether to expand the reach of comparative fault to strict liability and intentional torts. The defense of contributory negligence long has been held inapplicable to actions based on strict liability, see Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 597, 495 A.2d 348, 356 (1985), and intentional torts. See Tucker v. State, Use of Johnson, 89 Md. 471, 486, 43 A. 778, 783 (1899); State Farm v. Hill, 139 Md. App. 308, 316-18, 775 A.2d 476, 481-82 (2001). Approximately thirty-five states have opted to apply the doctrine of comparative fault to strict liability cases, in additional to negligence actions, although ten do not. See Negligence Systems, supra, at Appendix A, 37-41. Although many states do not endorse the application of comparative fault to intentional torts, see, e.g., Florenzano v. Olson, 387 N.W.2d 168, 176 n.7 (Minn. 1986) ("We . . . consider it bad policy to permit an intentional tortfeasor the defense of comparative negligence merely because he or she chooses a gullible or foolish victim."); Davies v. Butler, 602 P.2d 605, 611 (Nev. 1979) (declining to apply comparative fault to intentional acts), some do. See, e.g., Alaska Stat. § 09.17.900 (2012) (including intentional conduct in the definition of fault); Blazovic v. Andrich, 590 A.2d 222, 231 (N.J. 1991) ("We are unpersuaded by the decisions of other jurisdictions that reject apportionment of fault in actions involving intentional tortfeasors."). Consideration of the expansion of comparative fault beyond negligence actions is a bridge too far at this time.

Additionally, this Court should consider eventually (in the proper case) the continued vitality of the ameliorative doctrine of last clear chance. Most states that abrogate contributory negligence by judicial decision abolished contemporaneously the doctrine of last clear chance. See, e.g., Kaatz, 540 P.2d at 1050; Hoffman, 280 So.2d at 438; Alvis, 421 N.E.2d at 898. Because the doctrine of last clear chance is designed to mitigate the harsh results of contributory negligence, it seems likely that it may not survive the abrogation of contributory negligence. The facts giving rise to a traditional application of the doctrine may be relevant, however, in apportioning fault.

As we recognized in Harrison, the handling of set-offs and counterclaims are implicated by a decision to adopt comparative fault. Although Maryland has only a permissive, not compulsory, counterclaim rule, see Md. Rule 2-331; Fairfax Savings, F.S.B. v. Kris Jen Ltd. P'ship, 338 Md. 1, 11-12, 655 A.2d 1265, 1270 (1995), defendants in negligence actions will be able increasingly to raise counterclaims for damages arising from the same injury under a comparative fault rule. Thus, in a comparative negligence scheme, it may be the case that the plaintiff or counter-defendant owes the defendant or counter-plaintiff damages, and vice versa, raising the prospect of set-offs. In Hoffman, the Florida Supreme Court stated broadly that, in the case of a counterclaim, courts should "enter one judgment in favor of the party receiving the larger verdict, the amount of which should be the difference between the two verdicts." 280 So.2d at 439. As the Florida court later recognized (and disavowed) in Stuyvesant Ins. Co. v. Bournazian, 342 So.2d 471 (Fla 1976), however, a technical application of the Hoffman language resulted in a windfall to insurance liability carriers, as they would be responsible only for the set-off amount, and not the full damages incurred by the insured. Id. at 473-74. Thus, Florida applies set-offs in negligence actions only in instances where both parties are uninsured. Id. at 474. By contrast, some comparative negligence states ban set-offs altogether, see, e.g., R.I. Gen. Laws § 9-20-4.1 (2011), which may result in practical difficulties where only one party is uninsured. See John M. Rogers & Randy Donald Shaw, A Comparative Negligence Checklist to Avoid Future Unnecessary Litigation, 72 Kentucky L. J. 25, 73-79 (1983). Although we cannot decide definitively today how set-offs will operate in a comparative fault system, as appropriate cases work their way to us, lower courts should consider the just compensation of the parties in determining whether set-offs should apply.

I acknowledge that adopting a system of pure comparative fault implicates numerous related doctrines and principles in the law of torts, and a decision to do so is not taken lightly. That many questions will result from such a shift is not, however, a justification for retaining the status quo of contributory negligence. I have confidence that our judicial system will not be thrown into disarray, as Respondent and its Amici contend, based on the experience of, at a minimum, the twelve states that adopted judicially comparative negligence. The collateral issues will be handled readily by our Legislature and/or State's judges until this Court is presented the opportunity to resolve each lingering question.

V. Implementation of Pure Comparative Fault Should Apply Prospectively

The final decision to undertake in the present case, as I see it, is whether the decision adopting the doctrine of comparative negligence should be applied prospectively or retrospectively (to some extent). I would apply the doctrine of selective prospectivity, which is the "method by which `a court may apply a new rule in the case in which it is pronounced, then return to the old one with respect to all others arising on facts predating the pronouncement.'" Polakoff v. Turner, 385 Md. 467, 486, 869 A.2d 837, 849 (2005) (quoting James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 537 (1991) (plurality opinion)).

Selective prospectivity applies generally in cases where we announce a change in the substantive common law, Polakoff, 385 Md. at 488 n.14, 869 A.2d at 850 n.14, rather than in cases changing procedural requirements in the trial courts, Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 470, 601 A.2d 633, 657-58 (1992), or overruling prior cases based on their erroneous interpretation of the law. See Polakoff, 385 Md. at 488, 869 A.2d at 850 (noting that a new interpretation of a statute will apply to "the case before the court and to all cases pending where the issue has been preserved for appellate review"); Houghton v. Cnty. Comm'rs of Kent Cnty., 307 Md. 216, 220, 513 A.2d 291, 293 (1986) ("[T]he question of whether a particular judicial decision should be applied prospectively or retroactively, depends in the first instance on whether or not the decision overrules prior law and declares a new principle of law."). In adopting comparative fault, this Court would "exercise[] [its] constitutional authority to change the common law." See Zenobia, 325 Md. at 469, 601 A.2d at 657. See, e.g., Tracey, 427 Md. at 639-42, 50 A.3d at 1081-83; Julian, 320 Md. at 9-11, 575 A.2d at 739; Kelley v. R.G. Industries, Inc., 304 Md. 124, 140, 497 A.2d 1143, 1150-51 (1985); Boblitz, 296 Md. at 273-75, 462 A.2d at 521-22. Unlike in Zenobia, where we adopted a standard of clear and convincing evidence to justify punitive damages in tort cases, 325 Md. at 469, 601 A.2d at 675, the doctrine of comparative fault is not a procedural rule. See Erie Ins. Exchange v. Heffernan, 399 Md. 598, 635, 925 A.2d 636, 658 (2007) (noting that the doctrine of contributory negligence relates to substantive tort law). Thus, because "[o]rdinarily decisions which change the common law apply prospectively, as well as to the litigants before the court,"^[38]Julian, 320 Md. at 10, 575 A.2d at 739 (citing Williams v. State, 292 Md. 201, 217, 438 A.2d 1301, 1309 (1981)), I would apply the doctrine of comparative negligence to all causes of action accruing subsequent to the filing of this opinion, and to the parties in the present case on remand. See Boblitz, 296 Md. at 275, 462 A.2d at 522.

Finally, I would dismiss the writ of certiorari issued in response to the cross-petition filed by the Soccer Association of Columbia, for the same reasons stated for a similar result in the Majority opinion. See Maj. slip op. at 4, n.3.

C.J. Bell has authorized me to state he joins in this opinion.

Concurring Opinion by GREENE, J., which Battaglia, McDonald and Raker, JJ., join.

I join the majority opinion in rejecting Petitioner's invitation to change Maryland common law and abrogate the doctrine of contributory negligence. I write separately to explain why I believe, in addition to the reasons advanced in the majority opinion, we should defer to the General Assembly with regard to what would amount to a comprehensive revision of the law in this State. Notably, there is no dispute about whether this Court has the authority to change the common law. Just because we have that power, however, is no good reason to change the law in the face of clear policy reasons, based upon our jurisprudence, directing that we exercise restraint.

We pointed out in Harrison v. Montgomery Cnty. Bd. of Educ., 295 Md. 442, 463, 456 A.2d 894, 905 (1983), that "the contributory negligence principle [is] the valid standard in Maryland negligence cases and that `any change in the established doctrine [was for] the Legislature.'" Majority Opinion, Slip Op. at 5. In support of this conclusion, we acknowledged that the determination of public policy is generally a legislative prerogative. See Harrison, 295 Md. at 460, 456 A.2d at 903 ("[The] declaration of the public policy of Maryland is normally the function of the General Assembly[.]"). This Court has stated that "[we are] reluctant to alter a common law rule in the face of indications that to do so would be contrary to the public policy of this State." Harrison, 295 Md. at 460, 456 A.2d at 903 (citing Condore v. Prince George's Cnty., 289 Md. 516, 532, 425 A.2d 1011, 1019 (1981)). In my view, this is sound public policy, especially in light of the long-standing adherence in this State to the rule of contributory negligence. Therefore, we should defer to the General Assembly under the circumstances of this case. To do otherwise, we cast ourselves as a Court attempting to impose our will upon the General Assembly.

In Maryland, we operate under a fault-based tort system. Fault also is the test for liability under contributory negligence and comparative negligence. In any given case, the negligence of a plaintiff may play a part in causing his or her injuries and the damages he or she is allowed to recover should, therefore, be diminished to some extent. Of course, contributory negligence completely bars recovery, while comparative negligence prevents the plaintiff from recovering only that portion of his damages for which he is responsible. I am willing to concede that a system premised on comparative negligence for apportioning fault appears to be "a more equitable system of determining liability and a more socially desirable method of loss distribution." See Hoffman v. Jones, 280 S.2d 431, 437 (Fla. 1973). Thus, under comparative negligence, losses are apportioned among those whose fault contributed to the occurrence. Hence, if we were writing on a clean slate, I might be persuaded to adopt the comparative negligence standard.

Because I would prefer a system of comparative negligence is neither the test nor the justification for abandoning contributory negligence and adopting comparative negligence in its place. In this case our duty is to construe or interpret the law. It is not our task to invade the province of the General Assembly and enact into law a sweeping revision of an established rule of law. Here the dissenting opinion advocates for a system of pure comparative negligence. Some might, however, prefer a system of modified comparative negligence because of a belief that a plaintiff who was more than 50% at fault should not be entitled to any recovery. Whether Maryland becomes a pure comparative negligence state or a modified comparative negligence state should not be decided by this Court on the basis of the record before us. The General Assembly, in my view, is best suited to make that determination given the current status of our laws and its ability to conduct a comprehensive study of how the changes in the law will affect tort liability and insurance law in Maryland. In addition, as the dissenting opinion concedes, any change of the common law would not affect those statutes in Maryland that have enacted the concept of contributory negligence as a matter of law in some situations. See Dissenting Opinion, Slip. Op. at 41-42.

Lastly, the General Assembly seems to be in the better position to study and resolve:

1. How comparative negligence will apply in cases of multi— tortfeasors?

2. What will be the impact on the doctrine of joint and several liability if comparative negligence becomes the law?

3. How or should the Uniform Contribution Among Tort-Feasors Act retain any viability?

4. If the last clear chance doctrine is abolished as a result of comparative negligence, should or would the doctrine of assumption of the risk also be abolished?

5. Should Maryland adopt pure comparative negligence or a modified version?

See McIntyre v. Balentine, 833 S.W.2d 52, 57-58 (Tenn. 1992). To be certain, the General Assembly is at liberty to consider the opinions of this Court and decide whether to conduct such studies. In my view, the General Assembly may be poised to engage in such a discussion in light of the differing views expressed in this opinion. We would be wise, however, to encourage the General Assembly to do so, rather than to attempt to force it to do so by adopting the doctrine of pure comparative negligence.

I am authorized to state that Judges Battaglia, McDonald and Raker join in the views expressed in this concurring opinion.

[1] In his first amended complaint, Coleman named four defendants: the Soccer Association of Columbia, the Columbia Soccer Club, the Howard County Government, and the Howard County Board of Education. On August 16, 2010, Coleman filed a notice of voluntary dismissal as to the Howard County Government. Subsequently, on October 5, 2011, the parties stipulated to dismissal with prejudice of the Columbia Soccer Club. On October 24, 2011, the Howard County Board of Education was also dismissed with prejudice from the suit, leaving the Soccer Association of Columbia as the sole remaining defendant during the trial.

[2]The proffered jury instruction read as follows:

"A. Comparative Negligence — Liability

"If you find that more than one party has established his/her burden of proof as to negligence, as defined by the court, you must then compare the negligence of those parties. The total amount of negligence is 100%. The figure that you arrive at should reflect the total percentage of negligence attributed to each party with respect to the happening of the accident. A comparison of negligence is made only if the negligence of more than one party proximately caused the accident."

[3] The Soccer Association's cross-appeal was unnecessary, and actually improper, because of the principle that a litigant is not entitled to appeal from a judgment wholly in his or her favor. Any arguments seeking to uphold the judgment on grounds rejected by the trial judge or jury, such as the alleged lack of primary negligence, can be made by the appellee under the principle that a judgment can be upheld on any ground adequately shown by the record. See, e.g., Unger v. State, 427 Md. 383, 400-401 n. 8, 48 A.3d 242, 252 n. 8 (2012); Rush v. State, 403 Md. 68, 103, 939 A.2d 689, 709 (2008); Bowen v. Annapolis, 402 Md. 587, 618, 937 A.2d 242, 260 (2007); Wolfe v. Anne Arundel County, 374 Md. 20, 25 n. 2, 821 A.2d 52, 55 n. 2 (2003).

[4] Some commentators have claimed that the doctrine of contributory negligence originated even earlier, with the case of Bayly v. Merrel, 79 Eng. Rep. 331 (K.B. 1606). Most authorities, however, take the position that the doctrine originated with Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809). See, e.g., William L. Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 3 (1953); Wex S. Malone, The Formative Era of Contributory Negligence, 41 Ill. L. Rev. 151 (1946).

[5] One commentator has written as follows (H. Woods, The Negligence Case: Comparative Fault,§ 1:4, at 7-8 (1978), footnotes omitted):

"By 1850, [the country] had become heavily industrialized. This unprecedented development of industry and the general realization that it was related to Britain's continuance as the dominant world power brought out the protective instincts of her judiciary. The English courts eagerly seized upon Lord Ellenborough's holding in Butterfield as a most effective protective device. The American judiciary was no less enthusiastic. A Pennsylvania court in 1854 said this had been the `rule from time immemorial and is not likely to be changed in all the time to come.'"

See also Alvis v. Ribar, 85 Ill.2d 1, 6, 421 N.E.2d 886, 888 (1981):

"Judicial concern was particularly evident in the area of personal injury suits by railroad employees against the railroads. The courts realized that, in the pervading public view that saw railroads as `harmful entities with deep pockets' . . ., juries' sympathies toward plaintiffs could wreak financial disaster upon that burgeoning industry."

In 1906, Congress enacted the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60, which applied a comparative negligence standard in cases brought by railroad workers against their employers. The statute states that the "liability of common carriers by railroad," is that "[e]very common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier. . . ." 45 U.S.C. § 51. The FELA specifies that "contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." 45 U.S.C. § 53. See Collins v. National R.R. Passenger Corp., 417 Md. 217, 9 A.3d 56 (2010).

[6] See, e.g., House Bill 836 of the 1996 session (withdrawn); House Bill 846 of the 1997 session (unfavorable report of the House Judiciary Committee); Senate Bill 618 of the 1998 Session (unfavorable report of the Senate Judicial Proceedings Committee); House Bill 551 of the 1999 Session (unfavorable report of the House Judiciary Committee); Senate Bill 779 of the 2000 Session (unfavorable report of the Senate Judicial Proceedings Committee); Senate Bill 483 of the 2001 Session (unfavorable report of the Senate Judicial Proceedings Committee); Senate Bill 872 of the 2002 Session (sent to Senate Rules Committee but no further progress); House Bill 110 of the 2007 Session (withdrawn); Senate Bill 267 of the 2007 Session; House Bill 1129 of the 2011 Session.

[7] The Court in Irwinstated, in Maryland's seminal invocation of contributory negligence, that it is

established doctrine . . . that although the defendant's misconduct may have been the primary cause of the injury complained of, . . . the plaintiff cannot recover in a[ negligence action] if the proximate and immediate cause of the damage can be traced to a want of ordinary care and caution on his part. Under such circumstances, he must bear the consequences of his own recklessness or folly.

6 Gill at 205.

[8] As this Court acknowledged in Harrison, the creation of the doctrine of last clear change is attributed generally to an attempt to alleviate the harsh results of the doctrine of contributory negligence. 295 Md. at 450, 456 A.2d at 898. Despite general scholarly agreement with this principle, see, e.g., Digges & Klein, supra, at 276; Prosser & Keeton, supra, at 464 ("The real explanation [for the doctrine of last clear chance] would seem to be a fundamental dislike for the harshness of the contributory negligence defense."), the Harrison court stated that "[n]othing in [the adopting case] lends any direct support to this hypothesis." 295 Md. at 450-51, 456 A.2d at 898.

[9] Comparative negligence (in one form or another) is applied in the United States overwhelmingly, with forty-six states abandoning contributory negligence in favor of comparative fault. Only four states — Alabama, Maryland, North Carolina, and Virginia — and the District of Columbia continue to apply contributory negligence in its traditional guise. 2 Dobbs, supra, § 220 at 771-72.

[10] Comparative fault comes in two main forms: pure and modified. Under a pure comparative fault system, a contributorily negligent claimant's damages will be reduced based purely on his or her degree of fault (expressed as relative percentages of 100%), regardless of whether the claimant is as much or more at fault than the defendant. 4 Harper, James & Gray, supra, § 22.15 at 458; Prosser & Keeton, supra, § 67 at 471-72. A modified comparative fault system, by contrast, prohibits a claimant from recovering any damages if his or her relative degree of fault exceeds a certain threshold. 4 Harper, James & Gray, supra, § 22.15 at 458; Prosser & Keeton, supra, § 67 at 473. I will discuss infra in more detail the various forms of comparative fault.

[11] At the time of our decision in Harrison, thirty-nine states had adopted some form of comparative fault in favor of contributory negligence. 295 Md. at 453, 456 A.2d at 899. Of these states, eight adopted comparative negligence judicially, while thirty-one did so legislatively. Id. As of the date of our decision in the present case, twelve of the forty-six states adopting comparative negligence did so initially by judicial decision.

[12] Respondent's Amici include the Local Government Insurance Trust, the Maryland Association of Counties, the Maryland Municipal League, and the Mayor and City Council of Baltimore; the American Tort Reform Association, the Chamber of Commerce for the United States of America, the Coalition for Litigation Justice, Inc., the American Insurance Association, the Property Casualty Insurers Association of America, the National Association of Mutual Insurance Companies, the Physician Insurers Association of America, the American Medical Association, and the NFIB Small Business Legal Center; the Law Offices of Peter G. Angelos, P.C.; Maryland Defense Counsel, Inc.; and the Maryland Chamber of Commerce and the Maryland Tort Reform Coalition.

[13] Striking a similar theme, Judge Eldridge expressed in his dissent in Legislative Redistricting Cases, "[t]he perceived difficulty of the task should not excuse its performance." 331 Md. 574, 635, 629 A.2d 646, 677 (1993) (Eldridge, J., dissenting).

[14] Boblitz was preceded by Lusby v. Lusby, which held that the doctrine of interspousal tort immunity was inapplicable in cases of intentional torts. 283 Md. 334, 358, 390 A.2d 77, 89 (1978). The Lusby court emphasized, however, that we had not ruled explicitly that the immunity doctrine did apply in fact to intentional tort cases, and thus justified its limitation of the doctrine on the lack of direct precedent. Id. at 357-58, 390 A.2d at 88-89. In considering the issue, the Court noted that many states had altered the common law rule, and commentators had been nearly unanimous in their critique of that rule. Id. at 346, 350, 390 A.2d at 83-84.

[15] As the dissent noted, we entreated in prior cases the General Assembly to enact legislation to abrogate the doctrine, and kow-towed repeatedly to the Legislature. Id. at 283, 462 A.2d at 525 (Couch, J., dissenting).

[16] Although twelve states have abrogated contributory negligence by judicial decision, the prospect of judicial abrogation has been considered and rejected in numerous states. These states generally have not based their decisions on the intrinsic value of the rule of contributory negligence, but instead opted to defer to legislative action. See, e.g., Golden v. McCurry, 392 So.2d 815 (Ala. 1980); McGraw v. Corrin, 303 A.2d 641 (Del. 1973); Maki v. Frelk, 239 N.E.2d 445 (Ill. 1968); Epple v. Western Auto Supply Co., 557 S.W.2d 253 (Mo. 1977); Codling v. Paglia, 298 N.E.2d 622 (N.Y. 1973); Krise v. Gillund, 184 N.W.2d 405 (N.D. 1971); Peterson v. Culp, 465 P.2d 876 (Or. 1970). Indeed, legislatures in most of these states have since adopted comparative negligence. See, e.g., Del. Code Ann. tit. 10, § 8132 (enacted 1984); N.Y. C.P.L.R. 1411 (enacted 1975); N.D. Cent. Code § 9-10-07 (enacted 1973), superseded by N.D. Cent. Code § 32-03.2-02 (enacted 1987); Or. Rev. Stat. § 31.600, renumbered, Or. Rev. Stat. § 18.470 (enacted 1971). See also Steven Gardner, Contributory Negligence, Comparative Negligence, and Stare Decisis in North Carolina, 18 Campbell L. Rev. 1, 66 & n.419 (1996) (stating that, as of 1996, ten of the twelve states that deferred the abrogation of contributory negligence to the legislature later adopted comparative negligence). Two state courts adopted comparative negligence by judicial decision after deciding explicitly to defer to legislative action in an earlier decision. See Alvis v. Ribar, 421 N.E.2d 886 (Ill. 1981); Gustafson v. Benda,661 S.W.2d 11 (Mo. 1983). By contrast, the Alabama Supreme Court is the only court to revisit the adoption of comparative fault after deferring explicitly to its legislature (which remained inactive) and reaffirm the continued vitality of contributory negligence. The Supreme Court of Alabama stated summarily:

We have heard hours of oral argument; we have read numerous briefs; we have studied cases from other jurisdictions and law review articles; and in numerous conferences we have discussed in depth this issue and all of the ramifications surrounding such a change. After this exhaustive study and these lengthy deliberations, the majority of this Court, for various reasons, has decided that we should not abandon the doctrine of contributory negligence, which has been the law in Alabama for approximately 162 years.

Williams v. Delta Int'l Machinery Corp., 619 So.2d 1330, 1333 (Ala. 1993).

[17] As some scholars note, the deterrence rationale of contributory negligence (or comparative fault, for that matter) is dubious at best. "If the prospect of losing life and limb does not make a plaintiff careful, little further inducement to care will be added by speculations as to the outcome of a lawsuit. The same thing is often true of defendants. Yet today those who bear the burden of accident liability are increasingly absentee defendants — corporate and other employers or insurance companies, whose lives and limbs are not at stake in the accident. . . . Defendants, then, will often lack a powerful incentive to carefulness — self-preservation — that is virtually always present with plaintiffs." 4 Harper, James & Gray, supra, § 22.2 at 340-41.

[18] Further, Respondent and its Amici pointed out in oral argument that this Court reaffirmed the continued vitality of the doctrine recently in post-Harrison cases. See, e.g., Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 417-20, 31 A.3d 583, 601-03 (2011). Our continued adherence to the doctrine of contributory negligence in the cases cited by Respondent do not constitute an endorsement, however, by this Court as to the doctrine's continued value. We decide usually only the questions presented in successful petitions for certiorari or which may (or must) be reached fairly on the record in a given case. See Md. Rule 8-131. Before granting certiorari in the present case, we have not granted certiorari to consider whether to abrogate the doctrine of contributory negligence since our decision in Harrison. Thus, the recent decisions cited by Respondent applying the defense of contributory negligence to bar recovery cannot be construed as a reaffirmation by this Court, as recently as 2011, of the vitality and relevancy of the doctrine of contributory negligence in a modern context.

[19] This would be like urging Dr. Wolf Frankenstein (portrayed by Basil Rathbone) to wait to see if the village's elected officials will kill his monster, before taking matters into his own hands. In the meantime, many villagers will be lost. See Son of Frankenstein (Universal Pictures 1939).

[20] Coincidentally, this is the precise number of jurisdictions that preceded Maryland in abrogating in full the doctrine of interspousal tort immunity. See Bozman, 376 Md. at 487, 830 A.2d at 466. A critical mass has been reached for the adoption of comparative negligence, I submit.

[21] There may be much to learn as well from the evolution of comparative negligence in those states that adopted it initially by legislative act. The subsequent actions by the legislatures (and the courts) in those states will supply insights for how Maryland may address follow-on, collateral issues that are not appropriate to address here because of the limitations of the facts.

[22] As the author of one tort law treatise noted in response to Harrison, "The history [of legislative attempts to abrogate contributory negligence] appears more nearly indicative, it is suggested with respect, of the superior ability of insurers' lobbyists to influence a committee or its chairman in a non-public decision-making than an entire legislative body in an open vote." The author goes on to note that, in the Senate's first opportunity to vote on a comparative negligence bill, it passed 45-1 on the floor before being defeated behind closed doors in the House Judiciary Committee. 4 Harper, James & Gray, supra, § 22.18 at 495 n.1.

[23] States considering the judicial adoption of comparative negligence wrestled generally with the propriety of deferring legislative action versus judicial initiative. Twelve states and the federal government determined that contributory negligence is "a judicially created doctrine which can be altered or totally replaced by the court which created it." Alvis, 421 N.E.2d at 895. See United States v. Reliable Transfer Co., 421 U.S. 397, 410 (1975) (holding that it is appropriate to "adopt the proportional fault doctrine without Congressional action"); Kaatz, 540 P.2d 1037, 1049 (Alaska 1975) ("It appears to us that continued adherence to the contributory negligence rule, absent legislative change, represents judicial inertia rather than a reasoned consideration of the intrinsic value of the rule."); Li v. Yellow Cab Co., 532 P.2d 1226, 1233 (Cal. 1975) (stating that an argument requiring the court to defer to legislative action regarding the abolition of contributory negligence is "fundamentally misguided"); Hoffman v. Jones, 280 So.2d 431, 436 (Fla. 1973) (stating that the court has the "power and authority to reexamine the position [it] has taken in regard to contributory negligence and to alter the rule [it] ha[s] adopted previously"); Alvis v. Ribar, 421 N.E.2d 886, 896 (Ill. 1981) (noting that where a "stalemate" exists between the legislature and the court and "the legislature has, for whatever reason, failed to act to remedy a gap in the common law that results in injustice, it is the imperative duty of the court to repair that injustice and reform the law to be responsive to the demands of society"); Goetzman v. Wichern, 327 N.W.2d 742, 752 (Iowa 1982) ("We believe the arguments for deference to the legislature in the present case are substantially outweighed by the considerations reflected in the decisions of other courts that have addressed the issue, the analyses of the commentators, and the concept of the judicial role exemplified in past decisions of this court."); Hilen v. Hays, 673 S.W.2d 713, 716-17 (Ky. 1984) (declining to continue deference to the legislature despite recent legislative consideration of comparative negligence bills); Placek v. City of Sterling Heights, 275 N.W.2d 511, 518 (Mich. 1979) ("[W]e find adoption of comparative negligence is consistent with this Court's responsibility to the jurisprudence of this state."); Gustafson v. Benda, 661 S.W.2d 11, 14-15 (Mo. 1983) ("We have remained quiescent more than five years while waiting for the legislature to act.. . . We now are past the time when we should have resolved the uncertainty surrounding comparative fault . . ."); Scott v. Rizzo, 634 P.2d 1234, 1239 (N.M. 1981) (stating that, "since the rule [of contributory negligence] is not one made or sanctioned by the legislature, but . . . depends for its origins and continued viability upon the common law, it is a rule peculiarly for the courts to change if it is no longer justified" (internal quotation marks and citation omitted)); Nelson v. Concrete Supply Co., 399 S.E.2d 783, 784 (S.C. 1991) (determining that comparative negligence is the "more equitable doctrine" and abolishing the "long-standing rule of contributory negligence" with reference to the lengthy discussion in Langley v. Boyter, 325 S.E.2d 550 (S.C. Ct. App. 1984)); McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992) ("We recognize that this action could be taken by our General Assembly. However, legislative inaction has never prevented judicial abolition of obsolete common law doctrines, especially those, such as contributory negligence, conceived in the judicial womb."); Bradley v. Appalachian Power Co., 256 S.E.2d 879, 884 & n.14 (W. Va. 1979) (noting that the judiciary is capable of developing and adjusting the common law to grow with and adapt to changes in society). But see, e.g., Golden v. McCurry, 392 So.2d 815, 817 (Ala. 1981) (stating that, "even though this Court has the inherent power to change the common law rule of contributory negligence, it should, as a matter of policy, leave any change of the doctrine of contributory negligence to the legislature"); Codling v. Paglia, 298 N.E.2d 622, 634 (N.Y. 1973) ("With full awareness that the doctrine was of judicial rather than legislative origin, we are nonetheless not prepared at this time to substitute some formula of comparative negligence. In our opinion this is a topic now more appropriate for legislative address.") (comparative negligence enacted legislatively in 1975); Krise v. Gillund, 184 N.W.2d 405, 409 (N.D. 1971) ("We believe that the abandonment by the courts of a long-standing rule, which would result in the adoption of any one of a number of interpretations of the comparative-negligence rule, is a change of such magnitude that it should be made by legislative, rather than by judicial, action.") (comparative negligence enacted legislatively in 1973).

[24] The present case does not involve multiple defendants. Thus, there are no joint tortfeasors. There is no governmental defendant here to tee-up questions under governmental tort claims statutes.

[25] Respondent and its Amici cite to numerous studies bemoaning the potential for increased litigation, taxes, and insurance rates if Maryland were to adopt comparative negligence. The research on such topics, however, is highly conflicted, and studies concluding that insurance rates will increase are criticized roundly for "lack of academic rigor" and failing to consider and control for additional variables. See Negligence Systems, supra,at 21, 55-63.

It is recognized generally that no "good data" exists on whether comparative negligence increases insurance rates, due to the difficulty of controlling for all of the variables existing in state automobile insurance markets. As acknowledged in the 2004 Maryland Department of Legislative Services Report, "[i]n the absence of any comprehensive study, it is impossible to state with any certainty the direct and indirect consequences of changing to a comparative negligence system." Id. at 21. The possibility that comparative fault may increase insurance rates is insufficient to justify retention of what is certainly an unjust system. As the Supreme Court of Kentucky stated in response to this very argument, "there are no good economies in an unjust law." Hilen, 673 S.W.2d at 718 (emphasis in original).

[26] This is more commonly referred to as the "less than fifty percent," or the "not as great as," approach. Twelve states employ this approach. Standing Committee on Rules of Practice and Procedure, Special Report to [Maryland] Court of Appeals on Aspects of Contributory Negligence and Comparative Fault 9 & n.7 (2011) (hereinafter "Rules Committee Report").

[27] This approach is known generally as the "50%," or the "not greater than," approach. Twenty-one states employ this approach. Rules Committee Report, supra, at 9 & n.8.

[28] In both types of modified comparative fault, there is some inconsistency regarding whether a plaintiff's proportionate fault is to be judged against each defendant individually, or all defendants collectively. Three states — Idaho (not as great as), Minnesota (not greater than), and Wisconsin (not greater than) — employ the individual approach, requiring the plaintiff's proportion of fault to be judged against each defendant's fault to determine if the plaintiff can recover against that particular defendant. Rules Committee Report, supra, at 21-22.

[29] For those familiar only with the application of contributory negligence, it may be difficult to comprehend specifically how a jury is to reach a determination of relative fault in exact percentages. As the Supreme Court of Illinois stated, "[t]he simple and obvious answer . . . is that in [46] jurisdictions of the United States such apportionment is being accomplished by juries," and is "no more difficult or sophisticated for jury determination than others in a jury's purview, such as compensation for pain and suffering." Alvis, 421 N.E.2d at 893. Or, as Petitioner asserted in oral argument, this is, quite simply, what juries do. See, e.g., Lande & MacAlister, supra,at 7 (noting that juries decide complex questions routinely).

I agree with the Supreme Court of Tennessee that, while "it is impossible to formulate an exhaustive set of guidelines for apportioning fault that will adequately cover the manifold circumstances in which negligence actions may arise, . . . trial courts and juries must have some guidance, however imprecise and imperfect, in discharging their respective duties in apportioning fault." Eaton v. McClain, 891 S.W.2d 587, 591 (Tenn. 1994). Juries should continue to be guided by the tenets of our traditional negligence law — for example, the relevant standard of care owed by the parties and the causal relationship between the parties' actions and the harm caused — as well as other tort doctrines that may, or may not, be subsumed by a shift to comparative fault, such as assumption of the risk and the doctrine of last clear chance. See Eaton, 891 S.W.2d at 592 (directing consideration of traditional common law negligence principles such as implied assumption of the risk, remote contributory negligence, last clear chance, the sudden emergency doctrine, and the rescue doctrine); National Conference of Commissioners on Uniform State Laws, Uniform Comparative Fault Act § 2 Comment (1977) (hereinafter "UCFA"). Relative degrees of fault are dependent upon the circumstances and facts of each case, and juries should "rely upon their common sense and ordinary experience in apportioning fault." Eaton, 891 S.W.2d at 593.

[30] Twelve of the forty-six comparative fault states employ pure comparative fault, while thirty-three apply a form of modified fault. Rules Committee Report at 9-10. South Dakota, although considered to be a comparative fault jurisdiction, applies neither a pure nor modified system. Instead, it applies a slight negligence standard. Christopher J. Robinette & Paul G. Cherland, Contributory or Comparative: Which is the Optimal Negligence Rule?, 24 N. Ill. U. L. Rev. 41, 44 (2003).

[31] See Kaatz v. State, 540 P.2d 1037, 1049 (Alaska 1975); Li v. Yellow Cab Co., 532 P.2d 1226, 1242 (Cal. 1975); Hoffman v. Jones, 280 So.2d 431, 438 (Fla. 1973); Alvis v. Ribar, 421 N.E.2d 886, 898 (Ill. 1981); Goetzman v. Wichern, 327 N.W.2d 742, 753 (Iowa 1982); Hilen v. Hays, 673 S.W.2d 713, 719 (Ky. 1984); Placek v. City of Sterling Heights, 275 N.W.2d 511, 519 (Mich. 1979); Gustafson v. Benda, 661 S.W.2d 11, 15 (Mo. 1983); Scott v. Rizzo, 634 P.2d 1234, 1241 (N.M. 1981). In two of the states that adopted judicially pure comparative fault, the legislature codified later a form of modified comparative fault. See 735 Ill. Comp. Stat. § 5/2-1116 (2012) (abrogating Alvis v. Ribar, 421 N.E.2d 886 (Ill. 1981) in favor of a modified comparative fault system); Iowa Code § 668.3 (2011) (abrogating Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982) in favor of a modified comparative fault system).

[32] See Nelson v. Concrete Supply Co., 399 S.E.2d 783, 784 (S.C. 1991); McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992); Bradley v. Appalachian Power Co., 256 S.E.2d 879, 885 (W.Va. 1979). Most states adopting modified comparative fault have done so through legislative action. Scholars and commentators disagree generally with modified comparative fault. See, e.g., 4 Harper, James & Gray, supra, § 22.15 at 459-61 ("It is difficult to demonstrate a rational reason [for the adoption by legislatures of modified comparative fault]. A common explanation, in terms of pressures on legislators by lobbyists for defense interests, is not implausible.").

[33] What I mean by "henceforth" will be amplified shortly in this opinion.

[34] See, e.g., Md. Code (1977, 2009 Repl. Vol.), Transportation Article, § 21-1306(e)(1)(i)-(ii) ("The failure of an individual to wear protective headgear required under subsection (b) of this section may not: (i) Be considered evidence of negligence; (ii) Be considered evidence of contributory negligence"); Md. Code (1977, 2012 Supp.), Transportation Article, § 21-1306.1(e)(1)(i)-(ii) (same); Md. Code (1977, 2009 Repl. Vol.), Transportation Article, § 22-201.2(c)(1)(i)-(ii) ("If a person is convicted under this section, the conviction may not: (i) Be considered evidence of negligence; (ii) Be considered evidence of contributory negligence"); Md. Code (1977, 2009 Repl. Vol.), Transportation Article, § 22-412.2(i) ("A violation of this section is not contributory negligence and may not be admitted as evidence in the trial of any civil action."); Md. Code (1977, 2009 Repl. Vol.), Transportation Article, § 22-412.3(h)(1)(i)-(ii) ("Failure of an individual to use a seat belt in violation of this section may not: (i) Be considered evidence of negligence; (ii) Be considered evidence of contributory negligence"); Md. Code (1977, 2009 Repl. Vol.), Transportation Article, § 22-412.4(c)(1)(i)-(ii) ("The failure of a person to use a seat belt or restraining device required under this section may not: (i) Be considered evidence of negligence; (ii) Be considered evidence of contributory negligence"); Md. Code (2002, 2012 Repl. Vol.), Criminal Law Article, § 4-104(e)(1)(i)-(ii) ("A violation of this section may not: (i) be considered evidence of negligence; (ii) be considered evidence of contributory negligence").

[35] Indiana, for example, does not apply its comparative fault doctrine to suits against governmental entities, applying instead the doctrine of contributory negligence. See Penn Harris Madison Sch. Corp. v. Howard, 861 N.E.2d 1190, 1193 (Ind. 2007).

[36] As noted by the 2004 Maryland Department of Legislative Services study, only eight of the states employing comparative fault retain joint and several liability in its entirety, although, conversely, only ten abolished it completely. The remaining twenty-eight states employ joint and several liability in specified instances. Negligence Systems, supra, at 17. For example, joint and several liability is retained generally where multiple tortfeasors act in concert; some states apply the doctrine where multiple tortfeasors commit environmental harm; and some apply it where there is no contributory fault on the part of the claimant. Rules Committee Report, supra,at 23-24; National Conference of Commissioners on Uniform State Laws, Uniform Apportionment of Tort Responsibility Act at 4-5 (2003) (hereinafter "UATRA").

Although the Uniform Comparative Fault Act retained joint and several liability completely, see UCFA § 4, Comment, the more recent relevant uniform act, the Uniform Apportionment of Tort Responsibility Act ("UATRA"), limits the application of the doctrine. The UATRA abolishes joint and severally liability generally, but retains it in four instances: (1) where two or more tortfeasors act in concert with intent to cause personal injury or harm to property; (2) where one party fails to prevent another party from intentionally causing personal injury or harm to property; (3) where the liability of one defendant is based on the act or omission of another party; and (4) where another statute requires the judgment to be entered jointly and severally. UATRA § 6(a). As the Rules Committee noted in considering the potential modification of joint and several liability, "[t]here is a smorgasbord from which to choose." Rules Committee Report, supra, at 24. See also Lande & MacAlister, supra, at 10-13 (arguing that a pure comparative fault system, in conjunction with joint and several liability, "preserves joint and several liability's many virtues while properly deducting from a plaintiff's recovery a percentage commensurate with his or her breach of the duty to look out for his or her own safety.").

Additionally, states abolishing joint and several liability confront the attendant issue of whether, and, if so, how to reallocate among remaining parties an uncollectible share of liability.

[37] Massachusetts has long applied a pro rata contribution scheme in conjunction with a system of comparative fault. See Shantigar Found. v. Bear Mountain Builders, 804 N.E.2d 324, 332 (Mass. 2004).

[38] Although we recognize that the doctrine of selective prospectivity may be criticized as treating similarly situated litigants inequitably, as we recognized in Julian,the reasons for doing so are "well stated, though in a slightly different context, by Justice Brennan . . .:

Sound policies of decision-making, rooted in the command of Article III of the Constitution that we resolve issues solely in concrete cases or controversies, and in the possible effect upon the incentive of counsel to advance contentions requiring a change in the law, militate against denying [these litigants] the benefit of today's decisions. Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.

Julian, 320 Md. at 13, 575 A.2d at 741 (quoting Stovall v. Denno, 388 U.S. 293, 301 (1967)) (alterations in original).

REVERSED AND REMANDED FOR NEW TRIAL.

Townley Price, James E. Frasier, Steven R. Hickman, Frasier, Frasier & Hickman, Tulsa, for Appellant.

Marthanda J. Beckworth, Walter D. Haskins, Atkinson, Haskins, Nellis, Boudreaux, Holeman, Phipps & Brittingham, Tulsa, for Appellee.

OPINION

STUBBLEFIELD, Judge.

Plaintiff appeals from judgment on jury verdict entered in favor of defendant in a medical negligence action. Defendant doctor has appealed from the order assessing costs. Based on our review of the record on appeal and applicable law, we reverse.

David Fritts was seriously injured in a one-vehicle accident, which occurred during the early morning hours of February 20, 1990. David Fritts and his friend, David Manus, had been drinking prior to the accident. There was some dispute about which one of the two men was driving the Fritts pickup truck at the time of the accident. In any event, the vehicle hit a tree at approximately seventy miles per hour and overturned.

David Fritts sustained serious injuries as a result of the accident. He was diagnosed with a Lefort II fracture--literally all of his major facial bones were broken. He was placed in intensive care due to concern over the impact injury to his chest but later moved into a regular room.

On February 25, 1990, Fritts was scheduled to undergo surgery for repair of his facial fractures.^[1] Although an oral surgeon was to perform the facial repairs, Defendant, Dr. Richard McKinne, an otorhinolaryngologist, was called on to assist the oral surgeon by performing a tracheostomy to allow Fritts to breathe during surgery. He was also to repair damage, if it existed, to Fritts' sinuses.

As Dr. McKinne started the tracheostomy, Fritts began bleeding profusely from a cut or rupture of the innominate artery. The tracheostomy was not completed, and the rest of the surgery was delayed. Fritts lost a major amount of blood, failed to regain consciousness [934 P.2d 373] and died in the hospital some three days later.

Plaintiff Beth Ann Fritts, surviving spouse of David Fritts, deceased, filed this wrongful death action. She originally named other parties, but we are concerned here only with the claim against Dr. McKinne, which proceeded to jury trial.

Plaintiff claimed that Dr. McKinne violated the standard of care in performing the tracheostomy in that he failed to properly identify and isolate the innominate artery. As a result, he cut the artery and then failed to promptly and properly arrest the loss of blood while waiting for a vascular or thoracic surgeon to arrive. She claimed that her husband died from complications associated with the massive blood loss.

Dr. McKinne denied negligence. He further asserted that the problems encountered during the tracheostomy resulted from the fact that Fritts had an anomalous innominate artery--it was found up in his neck area, when normally it should have been in the chest. Dr. McKinne maintained that the artery was injured during the accident and that the injury was subclinical--not evident from physical examination or x-ray studies. He claimed that, when he started the tracheostomy and removed tissue from the trachea, the weakness and injury in the innominate artery resulted in a rupture of the blood vessel, which caused a "horrendous gush of blood."

The Doctor also asserted a comparative negligence defense based on the contention that Fritts was injured while driving drunk or was drunk while riding in a vehicle with Manus, who also was drunk.^[2] In apparent response, Plaintiff filed a motion in limine, requesting the trial court to exclude any mention of Fritts' use of drugs or alcohol. Plaintiff admitted that Dr. McKinne should be allowed to introduce evidence about injury to her husband's artery during the accident. However, she asserted that evidence of her husband's intoxication, at the time of the accident, was not admissible to prove his negligence and was inflammatory.

Dr. McKinne objected to the motion in limine claiming that such evidence was (1) relevant to the issue of Fritts' comparative negligence--"[his] injury arose in the automobile accident that he caused, because he was either driving drunk or elected to ride with somebody that [sic ] was driving drunk," and because "[his] negligence was the sole cause of his death;" and, (2) relevant to the issue of damages--he would present expert testimony that Fritts had a substantially diminished life expectancy due to his drug and alcohol use. The trial court denied the motion.

At trial, over Plaintiff's objection, counsel for Dr. McKinne introduced, through various witnesses and exhibits, evidence regarding Fritts' past history of and treatment for substance abuse^[3] and his consumption of alcohol on the night of his automobile accident. Indeed, the use of alcohol on the night of the accident and the history of substance abuse became the principal focus of the doctor's defense. Also over Plaintiff's objection, the trial court instructed the jury on the issue of Fritts' comparative negligence. These instructions included an instruction on "General Duty of Drivers," which stated that "[i]t is the duty of the driver of a motor vehicle to use ordinary care to prevent injury to himself or to other persons."

The jury returned a verdict in favor of Dr. McKinne. The trial court entered judgment on this verdict and also awarded Dr. McKinne costs in the amount of $3,579.18. Plaintiff appeals from the judgment entered on jury verdict, and Dr. McKinne counter-appeals, claiming that the trial court erred in failing to award him the entire amount of requested costs--$11,092.29.

Plaintiff raises two interrelated propositions of error on appeal. She claims that the trial court erred in admitting evidence regarding her deceased husband's history of substance abuse and in allowing the jury to [934 P.2d 374] consider comparative negligence--based on the events of the automobile accident--as a basis for reducing or denying recovery on the medical negligence claim. According to Plaintiff, her husband's drug and alcohol problems and his negligence with regard to the automobile accident were not relevant to the medical negligence claim, were highly prejudicial, and instructing the jury on such issues was reversible error. For the following reasons, we must agree.

We first address the proposition regarding comparative negligence--whether it was proper for the trial court to allow the jury to consider the matter of the decedent's possible negligence in the accident which led to his hospitalization and medical treatment. To establish a case of medical negligence, Plaintiff was required to show that Dr. McKinne's actions were below the requisite standard of care and that such acts resulted in her husband's death. See Boxberger v. Martin, 552 P.2d 370 (Okla.1976); Robertson v. LaCroix, 534 P.2d 17 (Okla.Ct.App.1975). Dr. McKinne denied that his treatment of Fritts deviated in any manner from the appropriate standard of care. He defended against the allegations of negligence by contending that, due to Fritts' unusual anatomy and the resultant injury to his artery from the high speed impact, the rupture of the artery was inevitable. This was a proper and appropriate defense. However, we conclude that the interjection of the issue of Fritts' possible negligence in the automobile accident, a matter unrelated to the medical procedures, was a substantial error that removed the jury's consideration from the relevant issues and led to an erroneous excursion into irrelevant and highly prejudicial matters.

There are limited circumstances under which reasonableness of patient conduct can be an appropriate consideration in medical negligence cases. For example, evidence of a patient's failure to reveal medical history that would have been helpful to his physician raises the issue of contributory negligence, particularly where the evidence also shows that the patient may have been advised of the importance of this information. Graham v. Keuchel, 847 P.2d 342, 358 n. 78 (Okla.1993). A patient's furnishing of false information about his condition, failure to follow a physician's advice and instructions, or delay or failure to seek further recommended medical attention also are appropriate considerations in determining contributory negligence.^[4] Under certain circumstances, a patient's actions prior to seeking medical attention properly may be considered as evidence of contributory negligence. Sales v. Bacigalupi, 47 Cal.App.2d 82, 117 P.2d 399 (1 Dist.1941) (in action against physician for malpractice in treating infection to plaintiff's foot after she stepped on a nail, whether patient was contributorily negligent in her attempts to first treat foot herself was for jury). There is nothing akin to any of these factual situations in this case.

Under the guise of a claim of contributory negligence, a physician simply may not avoid liability for negligent treatment by asserting that the patient's injuries were originally caused by the patient's own negligence. "Those patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded." Martin v. Reed, 200 Ga.App. 775, 409 S.E.2d 874, 877 (1991).

Thus, aside from limited situations, negligence of a party which necessitates medical treatment is simply irrelevant to the issue of possible subsequent medical negligence. Herein, Dr. McKinne testified that, at the time of the surgery, which was five days after the accident, "alcohol was not a problem." Yet, from the time of his opening statement, the principal focus of the doctor's counsel was on the behavior of the decedent before and leading up to the automobile accident:

[T]he evidence in this case, Ladies and Gentlemen, is going to be about a tragedy. [934 P.2d 375] And the tragedy ... what this evidence in this case will be about is drinking and driving and what it can do to a man and his family.

....

[T]he evidence will be that Mr. Fritts made a choice to drink and drive, and that resulted in his death.

... And he'd had a problem with alcohol, and he'd had a problem with some substance abuse that had gone on for a number of years. And this problem kept coming back. But on February 20th of 1990 this problem came back with a vengeance.

Counsel wound up his closing statement by asking the jury to consider:

Where did the tragedy begin? Where did the negligence exist that took David Fritts' life? On February 20, 1990, David Fritts ... made a very bad decision. He made a decision to start drinking again, after he had been counseled at the Bill Willis Community Mental Health Center.... [H]e did something that each and every one of us ... all know is negligent. He made a decision to drink and drive. And that's a problem that our society is well confronted with, and that we have not been able to control....

Thus, the trial shifted from one of medical malpractice to the assignment of negligence in the automobile accident.

Counsel for Dr. McKinne continually focused on the cause of the automobile accident, involving highly inflammatory matters of intoxication and chronic alcohol abuse, instead of focusing on whether Fritts' injuries in the automobile accident resulted in his death. It is totally illogical to argue that, if Fritts had not been driving while intoxicated, he would not have required a physician.^[5] In effect, that is just how Dr. McKinne's defense proceeded.

Thus, we conclude that the submission of the issue of comparative negligence--decedent's conduct unrelated to his medical treatment--was error. We also find a strong probability that the erroneously given instructions misled the jurors and caused them to reach a result different from what they would have reached but for the flawed instructions.

Next, we examine the purported error in admitting evidence of the decedent's drinking at the time of the automobile accident as well as evidence of his prior chronic substance abuse. Our prior discussion has pointed out the irrelevant and inflammatory nature of such evidence. However, Dr. McKinne asserts that Plaintiff waived any such error because she failed to object when such evidence was first addressed with a witness. Although we have found that the submission of the issue of comparative negligence was reversible error, we address this matter to provide guidance on new trial.

Plaintiff filed a motion in limine to prohibit opposing counsel from referring to or offering evidence on these highly prejudicial matters, but the trial court overruled the motion. Thereafter, the evidence was the focus of Dr. McKinne's counsel in his opening statement, and Plaintiff's counsel did not object when the matter was first the subject of testimony. It is the rule that a motion in limine is advisory, and that to preserve an objection for appeal, an objection must be made when the evidence is submitted. Corbell v. State ex rel. Dept. of Transp., 856 P.2d 575 (Okla.Ct.App.1993).

However, from our review of the record, we conclude that although counsel did not interpose contemporaneous objections to every inquiry regarding the irrelevant evidence, see Bauman v. International Harvester Co., 191 Okla. 392, 130 P.2d 287 (1942), there were numerous objections. Indeed, Plaintiff was granted a continuing objection, which negated the need of continued objections that would serve little additional purpose but to focus the jury's attention on the potentially prejudicial matters. We conclude that there was no waiver and that the issue [934 P.2d 376] of the admissibility of the evidence was properly preserved.

Here, much of the evidence and statements of counsel were, indeed, irrelevant and highly inflammatory. The fact of the automobile collision was certainly relevant--but the cause of that collision was not. Where alcohol was not a factor in the medical treatment, the fact that Fritts' injury may have been caused by his consumption of alcohol simply has no material bearing whatsoever on whether his eventual death was the result of negligent treatment by Dr. McKinne.

Fritts' history of substance abuse is relevant to the issue of damages where there is evidence of its effect on probable life expectancy, and Plaintiff seeks damages based on loss of future earnings. However, like evidence of Fritts' drinking on the night of the accident, it was not proper for the jury to consider such evidence in regard to the claim of negligence against Dr. McKinne. Where evidence is admissible on a certain point only, the trial court should at least advise the jury to consider it on that point alone in order to assure that the evidence will not be applied improperly. St. Louis & San Francisco Ry. Co. v. Murray, 50 Okla. 64, 150 P. 884 (1915) (syllabus 3); see also American Biomedical Group, Inc. v. Norman Regional Hosp. Auth., 855 P.2d 1074, 1080 (Okla.Ct.App.1993). Here, where the evidence is extremely inflammatory, bifurcation of trial of the liability and damages issues would have avoided completely the possibility of prejudice from the evidence.

We find that evidence of Fritts' intoxication and history of substance of abuse, along with repeated references to it by defense counsel, was sufficiently prejudicial to Plaintiff's case as to have prevented a full and fair trial of the issues. Furthermore, the admission of relevant but inflammatory evidence, admissible for only one issue, was reversible error in the absence of limiting instructions or bifurcated trial.

As for Dr. McKinne's counter-appeal, the reversal of the judgment necessarily entails reversal of his award of costs based on prevailing party status. Therefore, we need not address his claim of inadequacy of the cost award.

The judgment in favor of Dr. McKinne is REVERSED. The cause is remanded to the trial court with directions to grant a new trial.

GOODMAN, P.J., and BOUDREAU, J., concur.

[1] The surgery was performed five days after admission to allow swelling in his face to go down.

[2] A blood sample taken from Fritts approximately three to four hours following the accident revealed an alcohol content of .20.

[3] The trial court allowed Plaintiff a continuing objection to evidence of Fritts' substance abuse history. Evidence admitted included Fritts' treatment at a mental health center.

[4] See Rochester v. Katalan, 320 A.2d 704 (Del.1974); LeBlanc v. Northern Colfax County Hosp., 100 N.M. 494, 672 P.2d 667 (Ct.App.1983); Musachia v. Rosman, 190 So.2d 47 (Fla.App. 3 Dist.1966).

[5] In Eiss v. Lillis, 233 Va. 545, 357 S.E.2d 539, 543 (1987), the court rejected such an argument as "obviously wrong," noting that if it were accepted, in any case where the patient was responsible for events that led to his hospitalization, the treating physician could avoid liability for malpractice.