Levin, J.

There is ample evidence to support the jury determination that David Siegrist failed to exercise reasonable care after voluntarily coming to the aid of Richard Farwell and that his negligence was the proximate cause of Farwell’s death. We are also of the opinion that Siegrist, who was with Farwell the evening he was fatally injured and, as the jury found, knew or should have known of his peril, had an affirmative duty to come to Farwell’s aid.1

*285I

On the evening of August 26, 1966, Siegrist and Farwell drove to a trailer rental lot to return an automobile which Siegrist had borrowed from a friend who worked there. While waiting for the friend to finish work, Siegrist and Farwell consumed some beer.

Two girls walked by the entrance to the lot. Siegrist and Farwell attempted to engage them in conversation; they left Farwell’s car and followed the girls to a drive-in restaurant down the street.

The girls complained to their friends in the restaurant that they were being followed. Six boys chased Siegrist and Farwell back to the lot. Siegrist escaped unharmed, but Farwell was severely beaten. Siegrist found Farwell underneath his automobile in the lot. Ice was applied to Farwell’s head. Siegrist then drove Farwell around for approximately two hours, stopping at a number of drive-in restaurants. Farwell went to sleep in the back seat of his car. Around midnight Siegrist drove the car to the home of Farwell’s grandparents, parked it in the driveway, unsuccessfully attempted to rouse Farwell, and left. Farwell’s grandparents discovered him in the car the next morning and took him to the hospital. He died three days later of an epidural hematoma.

At trial, plaintiff contended that had Siegrist taken Farwell to the hospital, or had he notified someone of Farwell’s condition and whereabouts, Farwell would not have died. A neurosurgeon testified that if a person in Farwell’s condition is taken to a doctor before, or within half an hour after, consciousness is lost, there is an 85 to 88 per cent chance of survival. Plaintiff testified that Siegrist told him that he knew Farwell was badly injured and that he should have done something.

*286The jury returned a verdict for plaintiff and awarded $15,000 in damages. The Court of Appeals reversed, finding that Siegrist had not assumed the duty of obtaining aid for Farwell and that he neither knew nor should have known of the need for medical treatment.

II

Two separate, but interrelated questions are presented:

A. Whether the existence of a duty in a particular case is always a matter of law to be determined solely by the Court?

B. Whether, on the facts of this case, the trial judge should have ruled, as a matter of law, that Siegrist owed no duty to Farwell?

A.

"A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Prosser, Torts (4th ed), § 53, p 324.

The existence of a duty is ordinarily a question of law. However, there are factual circumstances which give rise to a duty. The existence of those facts must be determined by a jury.2 In Bonin v. Gralewicz, 378 Mich 521, 526-527; 146 NW2d 647 (1966), this Court reversed a directed verdict of no cause of action where the trial court had deter*287mined as a matter of law that the proofs were insufficient to establish a duty of care:

"Usually, in negligence cases, whether a duty is owed by the defendant to the plaintiff does not require resolution of fact issues. However, in some cases, as in this one, fact issues arise. When they do, they must be submitted to the jury, our traditional finders of fact, for ultimate resolution, and they must be accompanied by an appropriate conditional instruction regarding defendant’s duty, conditioned upon the jury’s resolution of the fact dispute.”

This same rule was stated more recently in Davis v. Thornton, 384 Mich 138, 142; 180 NW2d 11 (1970). "The trial judge in this case determined the defendant owed the plaintiff no duty. We believe this conclusion could properly be made only by a jury.”

B.

Without regard to whether there is a general duty to aid a person in distress, there is a clearly recognized legal duty of every person to avoid any affirmative acts which may make a situation worse. "[I]f the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility. * * * Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff’s interests.” Prosser, supra, § 56, pp 343-344. "Where performance clearly has been begun, there is no doubt that there is a duty of care.” Id 346.

In a case such as the one at bar, the jury must determine, after considering all the evidence, whether the defendant attempted to aid the vic*288tim. If he did, a duty arose which required defendant to act as a reasonable person.

"Before any duty, or any standard of conduct may be set, there must first be proof of facts which give rise to it”, Prosser, supra, § 37, p 205. Whether those facts have been proved is a question for the jury.

"Professor Green argues that it is impossible in the nature of things for the duty problem to be decided by the jury, for if the court sends the issue to the jury this 'necessarily operates as a ruling that there is a duty or else he would never have submitted the case to the jury at all.’ But that is not so. As in the case of any other issue, the judge will leave the question to the jury if it is a debatable one, but the jury may decide that (for example) plaintiff was beyond the apparent scope of danger from defendant’s conduct, and so beyond the scope of the duty to perform it carefully, even where they are quite ready to find defendant’s conduct clearly below the standard of reasonable care.” 2 Harper & James, The Law of Torts, p 1060.

There was ample evidence to show that Siegrist breached a legal duty owed Farwell. Siegrist knew that Farwell had been in a fight, and he attempted to relieve Farwell’s pain by applying an ice pack to his head. While Farwell and Siegrist were riding around, Farwell crawled into the back seat and laid down. The testimony showed that Siegrist attempted to rouse Farwell after driving him home but was unable to do so.

In addition, Farwell’s father testified to admissions made to him by Siegrist:

”Q: Witness, just before the jury was excused, I asked whether you had any conversation with Mr. Siegrist after this event occurred. You answered, 'Yes, the day *289after in the living room of Mrs. Grenier’s [the deceased’s mother] home.’ Then, the jury was excused, and we made a special record, and now I would like to ask you some questions that I asked and that you answered out of the presence of the jury.

"A: Yes.

”Q: What did Mr. Siegrist say, how did the conversation go?

’A: I asked him why he left Ricky [the deceased] in the driveway of his grandfather’s home.

What did he say?

'A: He said, ’Ricky was hurt bad, I was scared.’ I said, ’Why didn’t you tell somebody, tell his grandparents?’ He said, ’I know I should have, I don’t know.’” (Emphasis added.)

The question at trial came down to whether Siegrist acted reasonably under all the circumstances. "The law of negligence is that an actor is held to the standard of a reasonable man. The determination of the facts upon which the judgment of reasonableness is based is admittedly for the jury.” Davis v. Thornton, 384 Mich 138, 142-143; 180 NW2d 11 (1970).

The jury in this case found that Siegrist did not act reasonably, and that his negligence was the proximate cause of Farwell’s death.

"' "In considering the question whether defendant was entitled to a directed verdict, the testimony must be construed as strongly as possible in favor of the plaintiff. * * * The specific inquiry is whether this Court can say, as a matter of law, giving to plaintiff’s proofs the strongest probative force to which they are entitled, that the evidence was not sufficient to justify submitting to the jury the questions of defendant’s negligence and its knowledgé or notice of the situation.” ’ ” Clark v Dalman, 379 Mich 251, 263; 150 NW2d 755 (1967).

*290III

Siegrist contends that he is not liable for failure to obtain medical assistance for Farwell because he had no duty to do so.

Courts have been slow to recognize a duty to render aid to a person in peril.3 Where such a duty has been found, it has been predicated upon the existence of a special relationship between the parties;4 in such a case, if defendant knew or should have known of the other person’s peril,5 he *291is required to render reasonable care under all the circumstances.6

In Depue v Flatau, 100 Minn 299; 111 NW 1 (1907), the Supreme Court of Minnesota reversed an order of the trial court dismissing the cause of action and said that if the defendants knew their dinner guest was ill, it was for the jury to decide whether they were negligent in refusing his request to spend the night and, propping him on his wagon with the reins thrown over his shoulder, sending him toward home.

The Sixth Circuit Court of Appeals, in Hutchinson v Dickie, 162 F2d 103, 106 (CA 6, 1947), said that a host had an affirmative duty to attempt to rescue a guest who had fallen off his yacht. The host controlled the only instrumentality of rescue. The Court declared that to ask of the host anything less than that he attempt to rescue his guest would be "so shocking to humanitarian considerations and the commonly accepted code of social conduct that the courts in similar situations have had no difficulty in pronouncing it to be a legal obligation”.

Farwell and Siegrist were companions on a social venture. Implicit in such a common undertaking is the understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself. Siegrist knew or should have known when he left Farwell, who was badly beaten and unconscious, in the back seat of his car that no one would find bim before morning. Under these circumstances, to say that Siegrist had no duty to obtain medical assistance or at least to notify someone of Farwell’s condition and whereabouts would be "shocking to humanitarian considerations” and fly in the face *292of "the commonly accepted code of social conduct”.7 "[C]ourts will find a duty where, in general, reasonable men would recognize it and agree that it exists.”8

Farwell and Siegrist were companions engaged in a common undertaking; there was a special relationship between the parties. Because Siegrist knew or should have known of the peril Farwell was in and could render assistance without endangering himself he had an affirmative duty to come to Farwell’s aid.

The Court of Appeals is reversed and the verdict of the jury reinstated.

Kavanagh, C. J., and Williams, J., concurred with Levin, J.

Lindemer and Ryan, JJ., took no part in the decision of this case.

Fitzgerald, J.

The unfortunate death of Richard Farwell prompted this wrongful death action brought by his father against defendant, David Siegrist, a friend who had accompanied Farwell during the evening in which the decedent received injuries which ultimately caused his death three days later. The question before us is whether the defendant, considering his relationship with the decedent and the activity they jointly experienced on the evening of August 26-27, 1966, by his conduct voluntarily or otherwise assumed, or should have assumed, the duty of rendering medical or other assistance to the deceased. Wé find that defendant had no obligation to assume, nor did he assume, such a duty.

*293The facts of the case are accurately set forth in the Court of Appeals opinion.

"Factually, it appears that, on August 26, 1966, Richard Murray Farwell, deceased 18-year-old son of the plaintiff, visited the home of his friend, David Siegrist, a 16-year-old; that evening they drove to a trailer rental lot, where Siegrist was returning an automobile he had borrowed from a friend who was employed by the rental agency.

"Siegrist and Farwell planned to wait in the car until the friend had finished work and then 'drive around,’ stopping at various restaurants and drive-ins. While they were waiting, Siegrist estimated that they consumed 'four or five’ beers each.

"Shortly before nine o’clock p.m., two teenage girls walked past the car. After an unsuccessful attempt to engage them in conversation, Farwell left the car and followed the girls; Siegrist got out of the car and followed Farwell.

"When the girls reached a restaurant a short distance down the street, they apparently complained to those present that they were being followed. Defendants Ingland, Brock, Donald Keaton, Daniel Keaton, and at least two others in the restaurant began to chase Farwell and Siegrist, both of whom ran back to the trailer lot.

"Siegrist escaped by ducking into the trailer rental office, where he requested those inside to assist Farwell. They stepped out of the office and were confronted by the group which had been chasing Siegrist and Farwell. The two groups faced each other, but no violence ensued, and the two groups scattered.

"It was then discovered for the first time that Farwell had been caught and beaten by those who had been pursuing him and Siegrist; Farwell was found underneath his automobile in the lot.

"Farwell was taken to the trailer rental office, where Siegrist gave him a plastic bag full of ice for his injuries. Shortly thereafter, Farwell and Siegrist left the rental office and, between ten o’clock p.m. and midnight, they visited four different drive-in restau*294rants. While enroute from the third to the fourth restaurant, Farwell stated that he wanted to lie down, climbed into the back seat, and went to sleep. Around midnight, Siegrist drove the car to the home of Farwell’s grandparents, parked it in the driveway, and attempted to rouse Farwell. When the latter merely made a sound as if 'in a deep sleep’, Siegrist left with a friend who had followed him to the grandparents’ house. The next morning, Farwell was found by his grandparents, apparently taken to a hospital, and died of an epidural hematoma.

"At the close of plaintiffs proofs, defendant Siegrist moved for a directed verdict on the grounds that he had no duty to obtain medical assistance for Farwell as a matter of law. In the alternative, the motion was based upon the proposition that plaintiff failed to establish that any conduct on the part of Siegrist proximately caused Farwell’s death. The motion was denied.” 51 Mich App 585, 587-588.

Following the jury verdict of $15,000 in favor of the plaintiff, defendant, arguing that the verdict was inconsistent with the weight of the evidence, moved for and was denied a judgment notwithstanding the verdict. The decision of the trial court was reversed by the Court of Appeals which found that the defendant never assumed, voluntarily or otherwise, the duty of obtaining medical assistance for the deceased. The Court stated that the facts in no way indicated that defendant knew, or should have known, that immediate medical attention was required. Consequently, as a matter of law the Court determined that defendant was under no duty to obtain medical treatment for the decedent.

Plaintiff argues that once having voluntarily undertaken the duty of caring for decedent, defendant could not discontinue such assistance if, in so doing, he left the decedent in a worse position than when such duty was assumed. Defendant’s *295knowledge of the seriousness of decedent’s injury and the failure to advise decedent’s grandparents, the close personal relationship that existed between defendant and the decedent, and the supposition that the decedent relied upon defendant for assistance leads plaintiif to conclude that defendant did not act "with the reasonable prudence and care of a reasonable man in the same or like circumstances”. Defendant’s position is that there was no volunteered assumption of duty to care for the safety of the decedent. He argues that the facts within his knowledge on the evening of August 26, 1966, and the evidence introduced at trial failed to establish that defendant should have seen that Richard Farwell had suffered a potentially fatal injury requiring immediate attention.

Defendant did not voluntarily assume the duty of caring for the decedent’s safety. Nor did the circumstances which existed on the evening of August 26, 1966, impose such a duty. Testimony revealed that only a qualified physician would have reason to suspect that Farwell had suffered an injury which required immediate medical attention. The decedent never complained of pain and, in fact, had expressed a desire to retaliate against his attackers. Defendant’s inability to arouse the decedent upon arriving at his grandparents’ home does not permit us to infer, as does plaintiff, that defendant knew or should have known that the deceased was seriously injured.1 *296While it might have been more prudent for the defendant to insure that the decedent was safely in the house prior to leaving, we cannot say that defendant acted unreasonably in permitting Farwell to spend the night asleep2 in the back seat of his car.

The close relationship between defendant and the decedent is said to establish a legal duty upon defendant to obtain assistance for the decedent. No authority is cited for this proposition other than the public policy observation that the interest of society would be benefited if its members were required to assist one another. This is not the appropriate case to establish a standard of conduct requiring one to legally assume the duty of insuring the safety of another. Recognizing that legal commentaries have expressed moral outrage at those decisions3 which permit one to refuse aid to another whose life may be in peril, we cannot say that, considering the relationship between these two parties and the existing circumstances, defendant acted in an unreasonable manner.4

*297Plaintiff believes that a legal duty to aid others should exist where such assistance greatly benefits society and only a reasonable burden is imposed upon those in a position to help. He contends further that the determination of the existence of a duty must rest with the jury where questions of foreseeability and the relationship of the parties are primary considerations.

It is clear that defendant’s nonfeasance, or the "passive inaction or a failure to take steps to protect [the decedent] from harm”5 is urged as being the proximate cause of Farwell’s death. We must reject plaintiff’s proposition which elevates a moral obligation to the level of a legal duty where, as here, the facts within defendant’s knowledge in no way indicated that immediate medical attention was necessary and the relationship between the parties imposes no affirmative duty to render assistance. See Steckman v Silver Moon, Inc, 77 SD 206; 90 NW2d 170; 64 ALR2d 1171 (1958). The posture of this case does not permit us to create a legal duty upon one to render assistance to another injured or imperiled party where the initial injury was not caused by the person upon whom the duty is sought to be imposed.

The relationship of the parties and the question of foreseeability does not require that the jury, rather than the court, determine whether a legal duty exists. We are in agreement with the general principle advanced by plaintiff that the question of negligence is one of law for the court only when the facts are such that all reasonable men must draw the same conclusion.6 However, this principle becomes operative only after the court establishes *298that a legal duty is owed by one party to another. Prosser’s analysis of the role of the court and jury on questions of legal duty bears repeating:

"The existence of a duty. In other words, whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other — or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court. A decision by the court that, upon any version of the facts, there is no duty, must necessarily result in judgment for the defendant.” Prosser, Torts (4th ed), § 37, p 206.

Michigan recognizes that the question of duty is to be resolved by the court rather than the jury. Fisher v. Johnson Milk Co, Inc, 383 Mich 158; 174 NW2d 752 (1970).

The Court of Appeals properly decided as a matter of law that defendant owed no duty to the deceased.

We would affirm.

Coleman, J., concurred with Fitzgerald, J.

OPINION

PAGE, Justice.

This case arises upon a reversal by the court of appeals of summary judgment in favor of the defendant. The court of appeals held that defendant, the owner and operator of a private boat on Lake Minne-tonka, had a duty to warn plaintiff, a guest on the boat, that water surrounding the boat was too shallow for diving. We reverse and reinstate judgment in favor of defendant.

The facts are undisputed for the purpose of this appeal. On Sunday, August 9,1986, Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s ("Herman”) 26-foot boat, sailing on Lake Minnetonka. Harper was invited on the boat outing by Cindy Alberg Palmer, another guest on Herman’s boat. Herman and Harper did not know each other prior to this boat outing. At the time Herman was 64 years old, and Harper was 20 years old. Herman was an experienced boat owner having spent hundreds of hours operating boats on Lake Minnetonka similar to the one involved in this action. As owner of the boat, Herman considered himself to be in charge of the boat and his passengers. Harper had some experience swimming in lakes and rivers, but had no formal training in diving.

After a few hours of boating, the group decided to go swimming and, at Herman’s suggestion, went to Big Island, a popular recreation spot. Herman was familiar with Big Island, and he was aware that the water remains shallow for a good distance away from its shore. Harper had been to Big Island on one previous occasion. Herman positioned the boat somewhere between 100 to 200 yards from the island with the bow facing away from the island in an area shallow enough for his guests to use the boat ladder to enter the water, but still deep enough so they could swim.1 The bottom of the lake was not visible from the *474boat. After positioning the boat Herman proceeded to set the anchor and lower the boat’s ladder which was at its stern.

While Herman was lowering the ladder, Harper asked him if he was “going in.” When Herman responded yes, Harper, without warning, stepped onto the side of the middle of the boat and dove into approximately two or three feet of water. As a result of the dive, Harper struck the bottom of the lake, severed his spinal cord, and was rendered a C6 quadriplegic.

Harper then brought suit, alleging that Herman owed him a duty of care to warn him that the water was too shallow for diving. On October 23, 1991, the trial court granted Herman’s motion for summary judgment, ruling that the law does not impose such a duty. In reversing the trial court, the court of appeals concluded that Herman voluntarily assumed a duty to exercise reasonable care when he allowed Harper onto his boat, and that the duty of care included warning Harper not to dive because he knew that the water was “dangerously shallow.” Harper v. Herman, 487 N.W.2d 908, 910 (Minn.App.1992).

The sole issue on appeal is whether a boat owner who is a social host owes a duty of care to warn a guest on the boat that the water is too shallow for diving.

Harper alleges that Herman owed him a duty to warn of the shallowness of the water because he was an inexperienced swimmer and diver, whereas Herman was a veteran boater. Under those circumstances, Harper argues, Herman should have realized that Harper needed his protection.

We have previously stated that an affirmative duty to act only arises when a special relationship exists between the parties. “The fact that an 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 unless a special relationship exists between the actor and the other which gives the other the right to protection.” Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn.1979), reh’g denied, Jan. 11, 1980 (citations omitted). Accepting, arguendo, that Herman should have realized that Harper needed protection, Harper must still prove that a special relationship existed between them that placed an affirmative duty to act on the part of Herman.

Harper argues that a special relationship requiring Herman to act for his protection was created when Herman, as a social host, allowed an inexperienced diver on his boat. Generally, a special relationship giving rise to a duty to warn is only found on the part of common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection. Restatement (Second) of Torts § 314A (1965). Under this rule, a special relationship could be found to exist between the parties only if Herman had custody of Harper under circumstances in which Harper was deprived of normal opportunities to protect himself.2 These elements are not present here.

The record before this court does not establish that Harper was either particularly vulnerable or that he lacked the ability to protect himself. Further, the record does not establish that Herman held considerable power over Harper’s welfare, or that Herman was receiving a financial gain by hosting Harper on his boat. Finally, there is nothing in the record which would suggest that Harper expected any protec*475tion from Herman; indeed, no such allegation has been made.

The court of appeals found that Herman owed Harper a duty to warn him of the shallowness of the water because Herman knew that it was “dangerously shallow.” We have previously stated that “[a]ctual knowledge of a dangerous condition tends to impose a special duty to do something about that condition.” Andrade v. Ellefson, 391 N.W.2d 836, 841 (Minn.1986) (holding that county was not immune to charge of improper supervision of day care center where children were abused when county knew about overcrowding at the center). However, superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence. Thus, Herman’s knowledge that the water was “dangerously shallow” without more does not create liability. Andrade involved a group of plaintiffs who had little opportunity to protect themselves, children in day care, and a defendant to whom the plaintiffs looked for protection. In this case, Harper was not deprived of opportunities to protect himself, and Herman was not expected to provide protection.

“There are many dangers, such as those of fire and water, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child.” Restatement (Second) of Torts § 339 cmt. j (1965). If a child is expected to understand the inherent dangers of water, so should a 20-year-old adult. Harper had no reasonable expectation to look to Herman for protection, and we hold that Herman had no duty to warn Harper that the water was shallow.

Reversed and judgment in favor of defendant reinstated.

Me. Justice Holmes

delivered the opinion of the court.

This is a suit brought by the respondents against the petitioner to recover for the death of two children, sons of the respondents. The facts that for the purposes of decision we shall assume to have been proved are these. The petitioner owned a tract of about twenty acres in the outskirts of the town of Iola, Kansas. Formerly it had there a plant, for the making of sulphuric acid and zinc spelter! In 1910 it tore the building down but left a basement and cellar, in which in July, 1916, water was accumulated, clear in appearance but in fact dangerously poisoned by sulphuric acid and zinc sulphate that had come in one way or another from the petitioner’s works, as the petitioner knew. The respondents had been travel-ling and encamped at some distance from this place. A travelled way passed within 120 or 100 feet of it. On July '27, 1916, the children, who were eight and eleven years old, came upon the petitioner’s land, went into the .water, were poisoned and died. The petitioner saved the question whether it could be held liable. At the trial the Judge instructed the jury that if the water looked clear but in fact was poisonous and thus the children were allured to it the petitioner was liable. The respondents got a verdict, and judgment, which was affirmed by the Circuit Court, of Appeals. 264 Fed. 785.

Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, and kindred cases were relied upon as. leading to the result, and perhaps there is language in that and in Railroad Co. v. Stout, 17 Wall. 657, that might seem to justify it; but the doctrine' needs very caréful statement not to make an unjust and impracticable requirement. If the children had been adults they would have had no case. *275They would have been trespassers and the owner of the land would have owed no duty to remove even hidden danger; it would have been, entitled to assume that they would obey the law and not trespass. The liability for spring guns and mantraps arises from the fact that the defendant has not rested on .that assumption, but on the contrary has expected the trespasser and prepared an injury that is no more justified than if he had held the gun and fired it. Chenery v. Fitchburg R. R. Co., 160 Mass. 211, 213. Infants.have no greater right to go upon other peoples’ land than, adults, and the mere' fact that they are infants’ imposes no duty upon landowners to expect them and to prepare for their safety. On the other hand the duty of one- who invites another upon his land not to lead him into a trap is well settled, and while it is very plain that temptation is not invitation, it may be held that knowingly to establish and expose, unfenced, to children of an age when they follow á bait as mechanically as a fish, something that is certain to attract them, has the legal effect of an invitation to them although not to an adult. But the principle if accepted must be very cautiously applied.

In Railroad Co. v. Stout, 17 Wall. 657, the well-known case of a boy injured on a turntable, it appeared that children had played there before to the knowledge of employees of the railroad, and in view of that fact and the situation of the turntable near a road without visible separation, -it seems to have been assumed without much discussion that the railroad owed a duty to the boy. Perhaps this was as strong a case as would be likely to occur of maintaining a known temptation, where temptation takes the place of invitation. A license was implied and liability for a danger not manifest to a child was declared in the very similar case of Cooke v. Midland Great Western Ry. of Ireland [1909], A. C. 229.

Ip the case at bar it is at least doubtfulwhether the water could be seen from any. place where the children lawfully. *276were and there is no evidence that it was what led them to enter the land. But that is necessary to start the supposed duty. There can bé no general duty on the part of a landowner to keep his land safe for children, or even free from hidden dangers, if he has not directly or by implication invited or licensed them to come there. The difficulties in the way of implying a license are adverted to in Chenery v. Fitchbury R. R. Co., 160 Mass. 211, 212, but need not be considered here. It does not appear that children were in the habit of going to the place; so that foundation also fails.

Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, is less in point. There a boy was burned by falling into burning coal slack close by the side of a path on which he was running homeward from other boys who had frightened him. It hardly appears that he was a trespasser and the path suggests an invitation; at all events boys habit-ually resorted to. the place where he was. Also the defendant was under a statutory duty to fence the place sufficiently to keep out cattle. The decision is very far from establishing that the petitioner is liable for poisoned water not bordering a road, not shown to have been the inducement that, led the children to trespass, if in any event the law would deem, it sufficient to excuse their going there, and not shown to have been the indirect inducement because known to the children to be frequented by others.. ¡ It is suggested that the roads across-the place were invitations. A road is not an invitation to leave it elsewhere than at its end. ' •

Judgment reversed.

Mr. Justice Clarke, with whom concurred The Chief Justice and Mr. Justice Day, dissenting.

The courts- of our country have sharply divided as to the principles 'of law applicable to “ attractive nuisance ” cases, of which this one is typical.

*277At the head of one group, from 1873 until the decision of today, has stood the Supreme Court of the United States, applying what has been designated as the “ Humane ” doctrine. Quite distinctly the-mourts of Massachusetts have stood at the head of the other group, applying what has béen designated as a “ Hard Doctrine ”— the “ Draconian Doctrine.” Thompson on Negligence, vol. I, §§ 1027 to 1054 inclusive, especially §§ 1027, 1047 and 1048; Cooley on Torts, 3d ed., pp. 1269, et seq.

In 1873, in Railroad Co. v. Stout, 17 Wall. 657, this court, in a turntable case, in a unanimous decision., strongly approved the doctrine that he who places upon his land, where children of tender years are likely to go, acohstruction or agency, in its nature attractive, and therefore a temptation, to such children, is culpably negligent if he does not take reasonable'care, to keep them away, or to see that such dangerous thing is so guarded that they will not be injured by it when following the instincts and impulses of childhood, of which all mankind has notice. The court also held that where the facts are such that different minds may honestly draw different conclusions from them, the case should go to the jury.

Twenty years later the principle of this Stout Case was elaborately reexamined and unreservedly affirmed, again-in a unanimous decision in Union Pacific Ry. Co. v. McDonald, 152 U. S. 262. In each of these cases the contention that a child of tender years must be held to tbe same understanding of the law with respect to-property rights as an adult and that therefore, under the circumstances of each, the child injured was a trespasser, w^s considered and emphatically rejected. The attractiveness of the unguarded construction or agency — the temptation of it to children — is an. invitation to enter the premises that purges their technical trespass. These have been regarded as leading cases on the subject for now almost fifty years and have been widely followed by state and federal *278courts,—by the latter so recently as Heller v. New York, N. H. & H. R. R. Co., 265 Fed. 192, and American Ry. Express Co. v. Crabtree, 271 Fed. 287.

The dimensions of the pool of poisoned' water were about 20x45 feet. It was 2% to 3 feet deep in part and in part 10 or more feet deep. A photograph in the record gives it the appearance of an attractive swimming pool,, with brick sides and the water coming nearly to the top of the wall. The water is described by the witnesses as appearing to be clear and pure, and, on the hot summer day on. which the children perished, attractively cool.

This pool is indefinitely located within a tract of land about' 1,000 feet wide by 1,200 feet long, about which-there had not been any fence whatever for many years, and there was no sign or warning of any kind indicating the dangerous character of the water in the pool. There were several paths across the lot, a highway ran within 100 to 120 feet of the pool, and a railway track vas not far away. The land was. immediately adjacent to a city of about 10,000 inhabitants, with dwelling houses not far distant from it. The testimony shows that not only the two boys who perished had been attracted to the pool at the time but that there were two or three' other children with them, whose cries attracted men who were passing nearby, who, by getting into the water, succeeded in recovering the dead body of one child and in rescuing the other in such condition that, after, lingering, for a day or two, he died. The evidence shows .that the 'water in the pool was highly impregnated with sulphuric acid and zinc sulphate, which certainly caused the death of the children, and that the men who rescued the boys suffered seriously, one of them for as much as two weeks, from the effects-of the poisoned water.

The case was given to the jury in a clear and comprehensive charge, and the judgment of the District Court. upon the verdict vas affirmed by. the Circuit Court of-*279Appeals. The court charged the jury that if the water in the pool was not poisonous and if the boys were simply drowned there could be no recovery, but that if it was found, that the defendant knew or in the exercise of ordinary care should have known, that the water was impregnated with poison, that children were likely to go to its vicinity, that it was in appearance clear and "pure and attractive to young children as a place for .bathing, and that the death of the children was caused by its alluring appearance and by its poisonous character, and because no protection or warning was given against it, the case came within the principle of the “ attractive nuisance ” or “ turntable ” cases and recovery would be allowed.

. This was as favorable a view of the federal law, as it has been until today, as the petitioner deserved. The Supreme Court of Illinois, on the authority of the Stout Case, held a city liable for the death of a child drowned in a similar pool of water not poisoned. City of Pekin v. McMahon, 154 Ill. 141.

The facts, as stated, make it very- clear that in the view most unfavorable to the plaintiffs below there might be a difference of opinion between candid men as to, whether the pool was so located that the owners of the,land should have anticipated that children might frequent its vicinity, whether its appearance and character rendered it attractive to childish instincts so as to make it a temptation to children of tender years, and whether, therefore, it was culpable negligence to maintain it in that location, unprotected and without warning as to its poisonous condition. This being true, the case would seem to be one clearly for a jury, under the ruling in the Stout Case, supra.

Believing as I do that the doctrine of the Stout and McDonald Cases, giving weight to, and making allowance, as they do, for, the instincts and habitual conduct of children of. tender years, is a sound doctrine, calculated to *280make men more reasonably considerate of the safety of the children' of their neighbors, than will the harsh rule which makes trespassers of little children which the court is now substituting for it, I cannot share in setting aside thé verdict of the jury in this case, approved by the judgments of two courts, upon what is plainly a disputed question of fact and in thereby overruling two decisions which have been accepted as leading authorities for half a century, and Í therefore dissent from the judgment and opinion of the court.

*110PETERS, J.

Plaintiff appeals from a summary judgment for defendant Nancy Christian in this personal injury action.

In his complaint plaintiff alleged that about November 1, 1963, Miss Christian told the lessors of her apartment that the knob of the cold water faucet on the bathroom basin was cracked and should be replaced; that on November 30, 1963, plaintiff entered the apartment at the invitation of Miss Christian; that he was injured while using the bathroom fixtures, suffering severed tendons and nerves of his right hand; and that he has incurred medical and hospital expenses. He further alleged that the bathroom fixtures were dangerous, that Miss Christian was aware of the dangerous condition, and that his injuries were proximately caused by the negligence of Miss Christian. Plaintiff sought recovery of his medical and hospital expenses, loss of wages, damage to his clothing, and $100,000 general damages. It does not appear from the complaint whether the crack in the faucet handle was obvious to an ordinary inspection or was concealed.

Miss Christian filed an answer containing a general denial except that she alleged that plaintiff was a social guest and admitted the allegations that she had told the lessors that the faucet was defective and that it should be replaced. Miss Christian also alleged contributory negligence and assumption of the risk. In connection with the defenses, she alleged that plaintiff had failed to use his “eyesight” and knew of the condition of the premises. Apart from these allegations, Miss Christian did not allege whether the crack in the faucet handle was obvious or concealed.

Miss Christian’s affidavit in support of the motion for summary judgment alleged facts showing that plaintiff was a social guest in her apartment when, as he was using the bathroom, the porcelain handle of one of the water faucets broke in his hand causing injuries to his hand and that plaintiff had used the bathroom on a prior occasion. In opposition to the motion for summary judgment, plaintiff filed an affidavit stating that immediately prior to the accident he told Miss Christian that he was going to use the bathroom facilities, that she had known for two weeks prior to the accident that the faucet handle that caused injury was cracked, that she warned the manager of the building of the condition, that nothing was done to repair the condition of the handle, that she did not say anything to plaintiff as to the condition of the handle, and that when plaintiff turned off the faucet the handle broke *111in his hands severing the tendons and medial nerve in his right hand.

The summary judgment procedure is drastic and should be used with caution so that it does not become a substitute for an open trial. This court in two recent cases has stated: “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 doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785]; Joslin v. Marin Municipal Water Dist., 67 Cal.2d 132, 146-147 [60 Cal.Rptr. 377, 429 P.2d 889].) A defendant who moves for a summary judgment must prevail on the basis of his own affidavits and admissions made by the plaintiff, and unless the defendant’s showing is sufficient, there is no burden on the plaintiff to file affidavits showing he has a cause of action or to even file counteraffidavits at all. A summary judgment for defendant has been held improper where his affidavits were conclusionary and did not show that he was entitled to judgment and where the plaintiff did not file any counteraffidavits. (de Echeguren v. de Echeguren, 210 Cal.App.2d 141, 146-149 [26 Cal.Rptr. 562]; Southern Pac. Co. v. Fish, 166 Cal.App,2d 353, 362 et seq. [333 P.2d 133].)

In the instant case, Miss Christian’s affidavit and admissions made by plaintiff show that plaintiff was a social guest and that he suffered injury when the faucet handle broke; they do not show that the faucet handle crack was obvious or even noneoneealed. Without in any way contradicting her affidavit or his own admissions, plaintiff at trial could establish that she was aware of the condition and realized or should have realized that it involved an unreasonable risk of harm to him, that defendant should have expected that he would not discover the danger, that she did not exercise reasonable care to eliminate the danger or warn him of it, and that he did not Imow or have reason to know of the danger. Plaintiff also could establish, without contradicting Miss Christian’s affidavit or his admissions, that the crack was not obvious and was concealed. Under the circumstances, a summary judgment is proper in this case only if, after proof of such facts, a judgment would be required as a matter of law for Miss Christian. The record supports no such conclusion.

Section 1714 of the Civil Code provides: “Every one is responsible, not only for the result of his willful *112acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. ...” This code section, which has been unchanged in our law since 1872, states a civil law and not a common law principle. (Fernandez v. Consolidated Fisheries, Inc., 98 Cal.App.2d 91, 96 [219 P. 2d 73].)

Nevertheless, some common law judges and commentators have urged that the principle embodied in this code section serves as the foundation of our negligence law. Thus in a concurring opinion, Brett, M. R. in Heaven v. Pender (1883) 11 Q.B.D. 503, 509, states: “whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. ’ ’

California cases have occasionally stated a similar view: “All persons are required to use ordinary care to prevent others being injured as the result of their conduct.” (Hilyar v. Union Ice Co., 45 Cal.2d 30, 36 [286 P.2d 21]; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317 [282 P.2d 12]; see also Green v. General Petroleum Corp., 205 Cal. 328, 333 [270 P. 952, 60 A.L.R. 475]; Perkins v. Blauth, 163 Cal. 782, 786 [127 P. 50]; McCall v. Pacific Mail S. S. Co., 123 Cal. 42, 44 [55 P. 706]; Edler v. Sepulveda Park Apts., 141 Cal.App.2d 675 680 [297 P.2d 508]; Copfer v. Golden, 135 Cal.App.2d 623, 627-628 [288 P.2d 90]; cf. Dillon v. Legg, 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912].) Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy. (Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224, 229-230 [11 Cal.Rptr. 97, 359 P.2d 465]; Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 213 et seq. [11 Cal.Rptr. 89, 359 P.2d 457]; Malloy v. Fong, 37 Cal.2d 356, 366 [232 P.2d 241].)

A departure from this fundamental principle involves the *113balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and 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. (Cf. Schwartz v. Helms Bakery Ltd., 67 Cal.2d 232, 237, fn. 3 [60 Cal.Rptr. 510, 430 P.2d 68]; Hergenrether v. East, 61 Cal.2d 440, 443-445 [39 Cal.Rptr. 4, 393 P.2d 164]; Merrill v. Buck, 58 Cal.2d 552, 561-562 [25 Cal.Rptr. 456, 375 P.2d 304]; Chance v. Lawry’s, Inc., 58 Cal.2d 368, 377 [24 Cal.Rptr. 209, 374 P.2d 185]; Lipman v. Brisbane Elementary School Dist., supra, 55 Cal.2d 224, 229-230; Stewart v. Cox, 55 Cal.2d 857, 863 [13 Cal.Rptr. 521, 362 P.2d 345]; Biakanja v. Irving, 49 Cal.2d 647, 650 [320 P.2d 16, 65 A.L.R.2d 1358]; Wright v. Arcade School Dist., 230 Cal.App.2d 272, 278 [40 Cal.Rptr. 812]; Raymond v. Paradise Unified School Dist., 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847]; Prosser on Torts (3d ed. 1964) pp. 148-151; 2 Harper and James, The Law of Torts (1956) pp. 1052, 1435 et seq.)

One of the areas where this court and other courts have departed from the fundamental concept that a man is liable for injuries caused by his carelessness is with regard to the liability of a possessor of land for injuries to persons who have entered upon that land. It has been suggested that the special rules regarding liability of the possessor of land are due to historical considerations stemming from the high place which land has traditionally held in English and American thought, the dominance and prestige of the landowning class in England during the formative period of the rules governing the possessor’s liability, and the heritage of feudalism. (2 Harper and James, The Law of Torts, supra, p. 1432.)

The departure from the fundamental rule of liability for negligence has been accomplished by classifying the plaintiff either as a trespasser, licensee, or invitee and then adopting special rules as to the duty owed by the possessor to each of the classifications. Generally speaking a trespasser is a person who enters or remains upon land of another without a privilege to do so; a licensee is a person like a social guest who is not an invitee and who is privileged to enter or remain upon land by virtue of the possessor’s consent, and an invitee is a *114business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them. (Oettinger v. Stewart, 24 Cal.2d 133, 136 [148 P.2d 19, 156 A.L.R. 1221].)

Although the invitor owes the invitee a duty to exercise ordinary care to avoid injuring him (Oettinger v. Stewart, supra, 24 Cal.2d 133, 137; Hinds v. Wheadon, 19 Cal.2d 458, 460-461 [121 P.2d 724]), the general rule is that a trespasser and licensee or social guest are obliged to take the premises as they find them- insofar as any alleged defective condition thereon may exist, and that the possessor of the land owes them only the duty of refraining from wanton or willful injury. (Palmquist v. Mercer, 43 Cal.2d 92, 102 [272 P.2d 26]; see Oettinger v. Stewart, supra, 24 Cal.2d 133, 137 et seq.) The ordinary justification for the general rule severely restricting the occupier’s liability to social guests is based on the theory that the guest should not expect special precautions to be made on his account and that if the host does not inspect and maintain his property the guest should not expect this to be done on his account. (See 2 Harper and James, The Law of Torts, supra, p. 1477.)

An increasing regard for human safety has led to a retreat from this position, and an exception to the general rule limiting liability has been made as to active operations where an obligation to exercise reasonable care for the protection of the -licensee has been imposed on the occupier of land. (Oettinger v. Stewart, supra, 24 Cal.2d 133, 138-139 [disapproving contrary cases]; see Rest.2d Torts, § 341; Prosser on Torts, supra, pp. 388-389.) In an apparent attempt to avoid the general rule limiting liability, courts have broadly defined active operations, sometimes giving the term a strained construction in cases involving dangers known to the occupier.

Thus in Hansen v. Richey, 237 Cal.App.2d 475, 481 [46 Cal.Rptr. 909], an action for wrongful death of a drowned youth, the court held that liability could be predicated not upon the maintenance of a dangerous swimming pool but upon negligence “in the active conduct of a party for a large number of youthful guests in the light of knowledge of the dangerous pool.”1 In Howard v. Howard, 186 Cal.App.2d *115622, 625 [9 Cal.Rptr. 311], where plaintiff was injured by-slipping on spilled grease, active negligence was found on the ground that the defendant requested the plaintiff to enter the kitchen by a route which he knew would be dangerous and defective and that the defendant failed to warn her of the dangerous condition. (Cf. Anderson v. Anderson, 251 Cal.App.2d 409, 413 [59 Cal.Rptr. 342]; Herold v. P. H. Mathews Paint House, 39 Cal.App. 489, 493-494 [179 P. 414].) In Newman v. Fox West Coast Theatres, 86 Cal.App.2d 428, 431-433 [194 P.2d 706], the plaintiff suffered injuries when she slipped and fell on a dirty washroom floor, and active negligence was found on the ground that there was no water or foreign substances on the washroom floor when plaintiff entered the theater, that the manager of the theater was aware that a dangerous condition was created-after plaintiff’s entry, that the manager had time to clean up the condition after learning of it, and that he did not do so or warn plaintiff of the condition.

Another exception to the general rule limiting liability has been recognized for cases where the occupier is aware of the dangerous condition, the condition amounts to a concealed trap, and the guest is unaware of the trap. (See Loftus v. Dehail, 133 Cal. 214, 217-218 [65 P. 379]; Anderson v. Anderson, supra, 251 Cal.App.2d 409, 412; Hansen v. Richey, supra, 237 Cal.App.2d 475, 479-480; Huselton v. Underhill, 213 Cal.App.2d 370, 374-376 [28 Cal.Rptr. 822]; Bylling v. Edwards, 193 Cal.App.2d 736, 746-747 [14 Cal.Rptr. 760]; Yazzolino v. Jones, 153 Cal.App.2d 626, 636 [315 P.2d 107]; Ashley v. Jones, 126 Cal.App.2d 328, 332 [271 P.2d 918].) In none of these cases, however, did the court impose liability on the basis of a concealed trap; in some liability was found on another theory, and in others the court concluded that there was no trap. A trap has been defined as a “concealed” danger, a danger with a deceptive appearance of safety. (E.g., Hansen v. Richey, supra, 237 Cal.App.2d 475, 480.) It has also been defined as something akin to a spring gun or steel trap. (Anderson v. Anderson, supra, 251 Cal.App.2d 409, 412.) In the latter case it is pointed out that the lack of definiteness in the application of the term “trap” to any other situation makes its use argumentative and unsatisfactory.

The cases dealing with the active negligence and the trap exceptions are indicative of the subtleties and confusion which have resulted from application of the common law principles *116governing the liability of the possessor of land. Similar confusion and complexity exist as to the definitions of trespasser, licensee, and invitee. (See Fernandez v. Consolidated Fisheries, Inc., supra, 98 Cal.App.2d 91, 96.)

In refusing to adopt the rules relating to the liability of a possessor of land for the law of admiralty, the United States Supreme Court stated: “The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifieations bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards ‘imposing on owners and occupiers a single duty of reasonable care in all the circumstances. ’ ’ ’ (Footnotes omitted.) (Kermarec v. Compagnie Generale, 358 U.S. 625, 630-631 [3 L.Ed.2d 550, 554-555, 79 S.Ct. 406]; see also Jones v. United States, 362 U.S. 257, 266 [4 L.Ed.2d 697, 705, 80 S.Ct. 725, 78 A.L.R.2d 233]; 2 Harper and James, The Law of Torts, supra, 1430 et seq.; Prosser, Business Visitors and Invitees, 26 Minn.L.Rev. 573; Marsh, The History and Comparative Law of Invitees, Licensees and Trespassers, 69 L.Q.Rev. 182, 359.)

The courts of this state have also recognized the failings of the common law rules relating to the liability of the owner and occupier of land. In refusing to apply the law of invitees, licensees, and trespassers to determine the liability of an independent contractor hired by the occupier, we pointed out that application of those rules was difficult and often abitrary. (Chance v. Lawry’s, Inc., supra, 58 Cal.2d 368, 376-379; cf. Hall v. Barber Door Co., 218 Cal. 412, 419 [23 P.2d 279]; Donnelly v. Hufschmidt, 79 Cal. 74, 75-76 [21 P. 546]; Burke v. Zanes, 193 Cal.App.2d 773, 778 [14 Cal.Rptr. 619].) In refusing to apply the common law rules to a known trespasser on an automobile, the common law rules were characterized as “unrealistic, arbitrary, and inelastic,” and it was *117pointed out that exceedingly fine distinctions had been developed resulting in confusion and that many recent cases have in fact applied the general doctrine of negligence embodied in section 1714 of the Civil Code rather than the rigid common law categories test. (Fernandez v. Consolidated, Fisheries, Inc., supra, 98 Cal.App.2d 91, 96 et seq.) Other cases which have criticized the approach of the common law rules on the basis of the status of the plaintiff with the resulting confusion include Hansen v. Richey, supra, 237 Cal.App.2d 475, 478; Miller v. Desilu Productions, Inc., 204 Cal.App.2d 160, 166 [22 Cal.Rptr. 36]; Hession v. City & County of San Francisco, 122 Cal.App.2d 592, 602 [265 P.2d 542].

There is another fundamental objection to the approach to the question of the possessor’s liability on the basis of the common law distinctions based upon the status of the injured party as a trespasser, licensee, or invitee. Complexity can be borne and confusion remedied where the underlying principles governing liability are based upon proper considerations. Whatever may have been the historical justifications for the common law distinctions, it is clear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which has arisen is not due to difficulty in applying the original common law rules—they are all too easy to apply in their original formulation—but is due to the attempts to apply just rules in our modem society within •the ancient terminology.

Without attempting to labor all of the rules relating to the possessor’s liability, it is apparent that the classifications of trespasser, licensee, and invitee, the immunities from liability predicated upon those classifications, and the exceptions to those immunities, often do not reflect the major factors which should determine whether immunity should be conferred upon the possessor of land. Some of those factors, including the closeness of the connection between the injury and the defendant’s conduct, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the prevalence and availability of insurance, bear little, if any, relationship to the classifications of trespasser, licensee and invitee and the existing rules conferring immunity.

Although in general there may be a relationship between the remaining factors and the classifications of trespasser, licensee, and invitee, there are many eases in which no" such relationship may exist. Thus, although the foreseeability Of harm to an invitee" would ordinarily seem greater than the *118foreseeability of harm to a trespasser, in a particular case the opposite may be true. The same may be said of the issue of certainty of injury. The burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach may often be greater with respect to trespassers than with respect to invitees, but it by no means follows that this is true in every case. In many situations, the burden will be the same, i.e., the conduct necessary upon the defendant’s part to meet the burden of exercising due care as to invitees will also meet his burden with respect to licensees and trespassers. The last of the major factors, the cost of insurance, will, of course, vary depending upon the rules of liability adopted, but there is no persuasive evidence that applying ordinary principles of negligence law to the land occupier’s liability will materially reduce the prevalence of insurance due to increased cost or even substantially increase the cost.

Considerations such as these have led some courts in particular situations to reject the rigid common law classifications and to approach the issue of the duty of the occupier on the basis of ordinary principles of negligence. (E.g., Gould v. DeBeve (D.C. Cir.) 330 F.2d 826, 829-830 [117 App.D.C. 360]; Anderson v. Anderson, supra, 251 Cal.App.2d 409, 413; Taylor v. New Jersey Highway Authority, 22 N.J. 454 [126 A.2d 313, 317, 62 A.L.R.2d 1211]; Scheibel v. Upton 156 Ohio St. 308 [102 N.E.2d 453, 462-463]; Potts v. Amis, 62 Wn. 2d 777 [384 P.2d 825, 830-831]; see Comment (1957) 22 Mo.L.Rev. 186; Note (1958) 12 Rutgers L.Rev. 599.) And the common law distinctions after thorough study have been repudiated by the jurisdiction of their birth. (Occupiers’ Liability Act, 1957, 5 and 6 Eliz. 2, ch. 31.)

A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty.

It bears repetition that the basic policy of this state *119set forth by the Legislature in section 1714 of the Civil Code is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property. The factors which may in particular cases warrant departure from this fundamental principle do not warrant the wholesale immunities resulting from the common law classifications, and we are satisfied that continued adherence to the common law distinctions can only lead to injustice or, if we are to avoid injustice, further fictions with the resulting complexity and confusion. We decline to follow and perpetuate such rigid classifications. The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.

Once the ancient concepts as to the liability of the occupier of land are Stripped away, the status of the plaintiff relegated to its proper place in determining such liability, and ordinary principles of negligence applied, the result in the instant case presents no substantial difficulties. As we have seen, when we view the matters presented on the motion for summary judgment as we must, we must assume defendant Miss Christian was aware that the faucet handle was defective and dangerous, that the defect was not obvious, and that plaintiff was about to come in contact with the defective condition, and under the undisputed facts she neither remedied the condition nor warned plaintiff of it. Where the occupier of land is aware of a concealed condition involving in the absence of. precautions an unreasonable risk of harm to those coming in. contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.

. It may be noted that by carving further exceptions out of the traditional rules relating to the liability to licensees or

*120social guests, other jurisdictions reach the same result (see Rest.2d Torts, supra, § 342; Annot., Duty of a possessor of land to warn adult licensees of danger (1957) 55 A.L.R.2d 525; 49-55 A.L.R.2d, Later Case Service (1967) 485; but cf. Hansen v. Richey, supra, 237 Cal.App.2d 475, 478-479; Saba v. Jacobs, 130 Cal.App.2d 717, 719 [279 P.2d 826]; Ward v. Oakley Co., 125 Cal.App.2d 840, 844-845 [271 P.2d 536]; Fisher v. General Petroleum Corp., 123 Cal.App.2d 770, 779-780 [267 P.2d 841]), that by continuing to adhere to the strained construction of active negligence or possibly, by applying the trap doctrine the result would be reached on the basis of some California precedents (e.g., Hansen v. Richey, supra, 237 Cal.App.2d 475, 481), and that the result might even be reached by a continued expansion of the definition of the term “invitee” to include all persons invited upon the land who may thereby be led to believe that the host will exercise for their protection the ordinary care of a reasonable man (cf. O’Keefe v. South End Rowing Club, 64 Cal.2d 729, 737-739 [51 Cal.Rptr. 534, 414 P.2d 830,16 A.L.R.3d 1]). However, to approach the problem in these manners would only add to the confusion, complexity, and fictions which have resulted from the common law distinctions.

The judgment is reversed.

Traynor, C. J., Tobriner, J., Mosk, J., and Sullivan, J., concurred.

BURKE, J.

I dissent. In determining the liability of the occupier or owner of land for injuries, the distinctions between trespassers, licensees and invitees have been developed and applied by the courts over a period of many years. They supply a reasonable and workable approach to the problems involved, and one which provides the degree of stability and predictability so highly prized in the law. The unfortunate alternative, it appears to me, is the route taken by the majority in their opinion in this case; that such issues are to be decided on a case by case basis under the application of the basic law of negligence, bereft of the guiding principles and precedent which the law has heretofore attached by virtue of the relationship of the parties to one another.

Liability for negligence turns upon whether a duty of care is owed, and if so, the extent thereof. Who can doubt that the corner grocery, the large department store, or the financial institution owes a greater duty of care to one whom it has *121invited to enter its premises as a prospective customer of its wares or services than it owes to a trespasser seeking to enter after the close of business hours and for a nonbusiness or even an antagonistic purpose? I do not think it unreasonable or unfair that a social guest (classified by the law as a licensee, as was plaintiff here) should be obliged to take the premises in the same condition as his host finds them or permits them to be. Surely a homeowner should not be obliged to hover over his guests with warnings of possible dangers to be found in the condition of the home (e.g., waxed floors, slipping rugs, toys in unexpected places, etc., etc.). Yet today’s decision appears to open the door to potentially unlimited liability despite the purpose and circumstances motivating the plaintiff in entering the premises of another, and despite the caveat of the majority that the status of the parties may “have some bearing on the question of liability . . . ,” whatever the future may show that language to mean.

In my view, it is not a proper function of this court to overturn the learning, wisdom and experience of the past in this field. Sweeping modifications of tort liability law fall more suitably within the domain of the Legislature, before which all affected interests can be heard and which can enact statutes providing uniform standards and guidelines for the future.

I would affirm the judgment for defendant.

McComb, J., concurred.

Opinion

TOBRINER, J.

On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff.1 Plaintiffs, Tatiana’s parents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley. They allege that on Moore’s request, the campus police briefly detained Poddar, but released him when he appeared rational. They further claim that Dr. Harvey Powelson, Moore’s superior, then directed that no further action be taken to detain Poddar. No one warned plaintiffs of Tatiana’s peril.

Concluding that these facts set forth causes of action against neither therapists and policemen involved, nor against the Regents of the University of California as their employer, the superior court sustained defendants’ demurrers to plaintiffs’ second amended complaints without leave to amend.2 This appeal ensued.

*431Plaintiffs’ complaints predicate liability on two grounds: defendants’ failure to warn plaintiffs of the impending danger and their failure to bring about Poddar’s confinement pursuant to the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 ff.) Defendants, in turn, assert that they owed no duty of reasonable care to Tatiana and that they are immune from suit under the California Tort Claims Act of 1963 (Gov. Code, § 810 ff.).

We shall explain that defendant therapists cannot escape liability merely because Tatiana herself was npt their patient. (1) When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

In the case at bar, plaintiffs admit that defendant therapists notified the police, but argue on appeal that the therapists failed to exercise reasonable care to protect Tatiana in that they did not confine Poddar and did not warn Tatiana or others likely to apprise her of the danger. Defendant therapists, however, are public employees. Consequently, to the extent that plaintiffs seek to predicate liability upon the therapists’ failure to bring about Poddar’s confinement, the therapists can claim immunity under Government Code section 856. No specific statutory provision, however, shields them from liability based upon failure to warn Tatiana or others likely to apprise her of the danger, and Government Code section 820.2 does not protect such failure as an exercise of discretion.

Plaintiffs therefore can amend their complaints to allege that, regardless of the therapists’ unsuccessful attempt to confine Poddar, since they knew that Poddar was at large and dangerous, their failure to warn Tatiana or others likely to apprise her of the danger constituted a breach of the therapists’ duty to exercise reasonable care to protect Tatiana.

Plaintiffs, however, plead no relationship between Poddar and the police defendants which would impose upon them any duty to Tatiana, and plaintiffs suggest no other basis for such a duty. Plaintiffs have, *432therefore, failed to show that the trial court erred in sustaining the demurrer of the police defendants without leave to amend.

1. Plaintiffs’complaints

Plaintiffs, Tatiana’s mother and father, filed separate but virtually identical second amended complaints. The issue before us on this appeal is whether those complaints now state, or can be amended to state, causes of action against defendants. We therefore begin by setting forth the pertinent allegations of the complaints.3

Plaintiffs’ first cause of action, entitled “Failure to Detain a Dangerous Patient,” alleges that on August 20, 1969, Poddar was a voluntary outpatient receiving therapy at Cowell Memorial Hospital. Poddar informed Moore, his therapist, that he was going to kill an unnamed girl, readily identifiable as Tatiana, when she returned home from spending the summer in Brazil. Moore, with the concurrence of Dr. Gold, who had initially examined Poddar, and Dr. Yandell, assistant to the director of the department of psychiatry, decided that Poddar should be committed for observation in a mental hospital. Moore orally notified Officers Atkinson and Teel of the campus police that he would request commitment. He then sent a letter to Police Chief William Beall requesting the assistance of the police department in securing Poddar’s confinement.

Officers Atkinson, Brownrigg, and Halleran took Poddar into custody, but, satisfied that Poddar was rational, released him on his promise to stay away from Tatiana. Powelson, director of the department of psychiatry at Cowell Memorial Hospital, then asked the police to return Moore’s letter, directed that all copies of the letter and notes that Moore had taken as therapist be destroyed, and “ordered no action to place Prosenjit Poddar in 72-hour treatment and evaluation facility.”

*433Plaintiffs’ second cause of action, entitled “Failure to Warn On a Dangerous Patient,” incorporates the allegations of the first cause of action, but adds the assertion that defendants negligently permitted Poddar to be released from police custody without “notifying the parents of Tatiana Tarasoff that their daughter was in grave danger from Posenjit Poddar.” Poddar persuaded Tatiana’s brother to share an apartment with him near Tatiana’s residence; shortly after her return from Brazil, Poddar went to her residence and killed her.

Plaintiffs’ third cause of action, entitled “Abandonment of a Dangerous Patient,” seeks $10,000 punitive damages against defendant Powelson. Incorporating the crucial allegations of the first cause of action, plaintiffs charge that Powelson “did the things herein alleged with intent to abandon a dangerous patient, and said acts were done maliciously and oppressively.”

Plaintiffs’ fourth cause of action, for “Breach of Primary Duty to Patient and the Public,” states essentially the same allegations as the first cause of action, but seeks to characterize defendants’ conduct as a breach of duty to safeguard their patient and the public. Since such conclusory labels add nothing to the factual allegations of the complaint, the first and fourth causes of action are legally indistinguishable.

As we explain in part 4 of this opinion, plaintiffs’ first and fourth causes of action, which seek to predicate liability upon the defendants’ failure to bring about Poddar’s confinement, are barred by governmental immunity. Plaintiffs’ third cause of action succumbs to the decisions precluding exemplary damages in a wrongful death action. (See part 6 of this opinion.) We direct our attention, therefore, to the issue of whether plaintiffs’ second cause of action can be amended to state a basis for recovery.

2. Plaintiffs can state a cause of action against defendant therapists for negligent failure to protect Tatiana.

The second cause of action can be amended to allege that Tatiana’s death proximately resulted from defendants’ negligent failure to warn Tatiana or others likely to apprise her of her danger. Plaintiffs contend that as amended, such allegations of negligence and proximate causation, with resulting damages, establish a cause of action. Defendants, however, contend that in the circumstances of the present case they owed no duty of care to Tatiana or her parents and that, in the absence of such *434duty, they were free to act in careless disregard of Tatiana’s life and safety.

In analyzing this issue, we bear in mind that legal duties are not discoverable facts of nature, but merely conclusoiy expressions that, in cases of a particular type, liability should be imposed for damage done. As stated in Dillon v. Legg (1968) 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]: “The assertion that liability must ... be denied because defendant bears no ‘duty’ to plaintiff ‘begs the essential question—whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct... . [Duty] is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ (Prosser, Law of Torts [3d ed. 1964] at pp. 332-333.)”

In the landmark case of Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], Justice Peters recognized that liability should be imposed “for injury occasioned to another by his want of ordinary care or skill” as expressed in section 1714 of the Civil Code. Thus, Justice Peters, quoting from Heaven v. Pender (1883) 11 Q.B.D, 503, 509 stated: “ ‘whenever one person is by circumstances placed in such a position with regard to another . .. that if he did not use ordinary care and skill in his own conduct... he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.’ ”

We depart from “this fundamental principle” only upon the “balancing of a number of considerations”; major ones “are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and 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.”4

The most important of these considerations in establishing duty is foreseeability. As a general principle, a “defendant owes a duty of *435care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399 [115 Cal.Rptr. 765, 525 P.2d 669]; Dillon v. Legg, supra, 68 Cal.2d 728, 739; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40 [123 Cal.Rptr. 468, 539 P.2d 36]; see Civ. Code, § 1714.) As we shall explain, however, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim. Since the relationship between a therapist and his patient satisfies this requirement, we need not here decide whether foreseeability alone is sufficient to create a duty to exercise reasonable care to protect a potential victim of another’s conduct.

Although, as we have stated above, under the common law, as a general rule, one person owed no duty to control the conduct of another5 (Richards v. Stanley (1954) 43 Cal.2d 60, 65 [271 P.2d 23]; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277 [40 Cal.Rptr. 812]; Rest.2d Torts (1965) § 315), nor to warn those endangered by such conduct (Rest.2d Torts, supra, § 314, com. c.; Prosser, Law of Torts (4th ed. 1971) § 56, p. 341), the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct (see Rest.2d Torts, supra, §§ 315-320). Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either “(a) a special relation . . . between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation . . . between the actor and the other which gives to the other a right of protection.”

*436Although plaintiffs’ pleadings assert no special relation between Tatiana and defendant therapists, they establish as between Poddar and defendant therapists the special relation that arises between a patient and his doctor or psychotherapist.6 Such a relationship may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable. care to control the behavior of a patient which may endanger other persons.7 A doctor must also warn a patient if the patient’s condition or medication renders certain conduct, such as driving a car, dangerous to others.8

Although the California decisions that recognize this duty have involved cases in which the defendant stood in a special relationship both to the victim and to the person whose conduct created the danger,9 we do not think that the duty should logically be constricted to such situations. Decisions, of other jurisdictions hold that the single relationship of a doctor to his patient is sufficient to support the duty to exercise reasonable care to protect others against dangers emanating from the patient’s illness. The courts hold that a doctor is liable to persons *437infected by his patient if he negligently fails to diagnose a contagious disease (Hofmann v. Blackmon (Fla.App. 1970) 241 So.2d 752), or, having diagnosed the illness, fails to warn members of the patient’s family (Wojcik v. Aluminum Co. of America (1959) 18 Misc.2d 740 [183 N.Y.S.2d 351, 357-358]; Davis v. Rodman (1921) 147 Ark. 385 [227 S.W. 612, 13 A.L.R. 1459]; Skillings v. Allen (1919) 143 Minn. 323 [173 N.W. 663, 5 A.L.R. 922]; see also Jones v. Stanko (1928) 118 Ohio St. 147 [6 Ohio L.Abs. 77, 160 N.E. 456]).

Since it involved a dangerous mental patient, the decision in Merchants Nat. Bank & Trust Co. of Fargo v. United States (D.N.D. 1967) 272 F.Supp. 409 comes closer to the issue. The Veterans Administration arranged for the patient to work on a local farm, but did not inform the farmer of the man’s background. The farmer consequently permitted the patient to come and go freely during nonworking hours; the patient borrowed a car, drove to his wife’s residence and killed her. Notwithstanding the lack of any “special relationship” between the Veterans Administration and the wife, the court found the Veterans Administration liable for the wrongful death of the wife.

In their summary of the relevant rulings Fleming and Maximov conclude that the “case law should dispel any notion that to impose on the therapists a duty to take precautions for the safety of persons threatened by a patient, where due care so requires, is in any way opposed to contemporary ground rules on the duty relationship. On the contrary, there now seems to be sufficient authority to support the conclusion that by entering into a doctor-patient relationship the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the patient.” (Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal.L. Rev. 1025, 1030.)

Defendants contend, however, that imposition of a duty to exercise reasonable care to protect third persons is unworkable because therapists cannot accurately predict whether or not a patient will resort to violence. In support of this argument amicus representing the American Psychiatric Association and other professional societies cites numerous articles which indicate that therapists, in the present state of the art, are unable reliably to predict violent acts; their forecasts, amicus claims, tend consistently to overpredict violence, and indeed are more often wrong *438than right.10 Since predictions of violence are often erroneous, amicus concludes, the courts should not render rulings that predicate the liability of therapists upon the validity of such predictions.

The role of the psychiatrist, who is indeed a practitioner of medicine, and that of the psychologist who performs an allied function, are like that of the physician who must conform to the standards of the profession and who must often make diagnoses and predictions based upon such evaluations. Thus the judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted rules of responsibility.

We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Obviously, we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional specialty] under similar circumstances.” (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [91 Cal.Rptr. 760, 478 P.2d 480, 45 A.L.R.3d 717]; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159-160 [41 Cal.Rptr. 577, 397 P.2d 161]; see 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 514 and cases cited.) Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence.

In the instant case, however, the pleadings do not raise any question as to failure of defendant therapists to predict that Poddar presented a serious danger of violence. On the contrary, the present complaints allege that defendant therapists did in fact predict that Poddar would kill, but were negligent in failing to warn.

*439Amicus contends, however, that even when a therapist does in fact predict that a patient poses a serious danger of violence to others, the therapist should be absolved of any responsibility for failing to act to protect the potential victim. In our view, however, once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. While the discharge of this duty of due care will necessarily vary with the facts of each case,11 in each instance the adequacy of the therapist’s conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. (Accord Cobbs v. Grant (1972) 8 Cal.3d 229, 243 [104 Cal.Rptr. 505, 502 P.2d 1].) As explained in Fleming and Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal.L.Rev. 1025, 1067: “. . . the ultimate question of resolving the tension between the conflicting interests of patient and potential victim is one of social policy, not professional expertise. ... In sum, the therapist owes a legal duty not only to his patient, but also to his patient’s would-be victim and is subject in both respects to scrutiny by judge and jury.”

Contrary to the assertion of amicus, this conclusion is not inconsistent with our recent decision in People v. Burnick, supra, 14 Cal.3d 306. Taking note of the uncertain character of therapeutic prediction, we held in Burnick that a person cannot be committed as a mentally disordered sex offender unless found to be such by proof beyond a reasonable doubt. (14 Cal.3d at p. 328.) The issue in the present context, however, is not whether the patient should be incarcerated, but whether the therapist should take any steps at all to protect the threatened victim; some of the alternatives open to the therapist, such as warning the victim, will not result in the drastic consequences of depriving the patient of his liberty. Weighing the uncertain and conjectural character of the alleged damage done the patient by such a warning against the peril to the victim’s life, we conclude that professional inaccuracy in predicting violence cannot negate the therapist’s duty to protect the threatened victim.

*440The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved. We would hesitate to hold that the therapist who is aware that his patient expects to attempt to assassinate the President of the United States would not be obligated to warn the authorities because the therapist cannot predict with accuracy that his patient will commit the crime.

Defendants further argue that free and open communication is essential to psychotherapy (see In re Lifschutz (1970) 2 Cal.3d 415, 431-434 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1]); that “Unless a patient... is assured that... information [revealed by him] can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which-diagnosis and treatment... depends.” (Sen. Com. on Judiciary, comment on Evid. Code, § 1014.) The giving of a warning, defendants contend, constitutes a breach of trust which entails the revelation of confidential communications.12

We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy (see In re Lifschutz, supra, 2 Cal.3d at p. 432), and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. The Legislature has undertaken the difficult task of balancing the countervailing concerns. In Evidence Code section 1014, it established a broad rule of privilege to protect confidential communications between patient and psychothera*441pist. In Evidence Code section 1024, the Legislature created a specific and limited exception to the psychotherapist-patient privilege': “There is no privilege ... if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.”13

We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient’s relationship with his therapist and with the persons threatened. To the contrary, the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger. (See Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal.L.Rev. 1025, 1065-1066.)14

The revelation of a communication under the above- circumstances is not a breach of trust or a violation of professional ethics; as stated in the Principles of Medical Ethics of the American Medical Association (1957), section 9: “A physician may not reveal the confidence entrusted to him in the course of medical attendance .. . unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of *442 the individual or of the community.” 15 (Italics added.) We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.

Our current crowded and computerized society compels the interdependence of its members. In this risk-infested society we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal. If the exercise of reasonable care to protect the threatened victim requires the therapist to warn the endangered party or those who can reasonably be expected to notify him, we see no sufficient societal interest that would protect and justify concealment. The containment of such risks lies in the public interest. For the foregoing reasons, we find that plaintiffs’ complaints can be amended to state a cause of action against defendants Moore, Powelson, Gold, and Yandell and against the Regents as their employer, for breach of a duty to exercise reasonable care to protect Tatiana.16

Finally, we reject the contention of the dissent that the provisions of the Lanterman-Petris-Short Act which govern the release of confidential information (Welf. & Inst. Code, §§ 5328-5328.9) prevented defendant therapists from warning Tatiana. The dissent’s contention rests on the assertion that Dr. Moore’s letter to the campus police constituted an “application in writing” within the meaning of Welfare and Institutions Code section 5150, and thus initiates proceedings under the Lanterman-Petris-Short Act. A closer look at the terms of section 5150, however, will demonstrate that it is inapplicable to the present case.

Section 5150 refers to a written application only by a professional person who is “a member of the attending staff ... of an evaluation *443facility designated by the county,” or who is himself “designated by the county” as one authorized to take a person into custody and place him in a facility designated by the county and approved by the State Department of Mental Hygiene. The complaint fails specifically to allege that Dr. Moore was so empowered. Dr. Moore and the Regents cannot rely upon any inference to the contrary that might be drawn from plaintiff’s allegation that Dr. Moore intended to “assign” a “detention” on Poddar; both Dr. Moore and the Regents have expressly conceded that neither Cowell Memorial Hospital nor any member of its staff has ever been designated by the County of Alameda to institute involuntary commitment proceedings pursuant to section 5150.

Furthermore, the provisions of the Lanterman-Petris-Short Act defining a therapist’s duty to withhold confidential information are expressly limited to “information and records obtained in the course of providing services under Division 5 (commencing with section 5000), Division 6 (commencing with section 6000), or Division 7 (commencing with section 7000)” of the Welfare arid Institutions Code (Welf. & Inst. Code, § 5328). (Italics added.) Divisions 5, 6 and 7 describe a variety of programs for treatment of the mentally ill or retarded.17 The pleadings at issue on this appeal, however, state no facts showing that the psychotherapy provided to Poddar by the Cowell Memorial Hospital falls under any of these programs. We therefore conclude that the Lanterman-Petris-Short Act does not govern the release of information acquired by Moore during the course of rendition of those services.

Neither can we adopt the dissent’s suggestion that we import wholesale the detailed provisions of the Lanterman-Petris-Short Act regulating the disclosure of confidential information and apply them to disclosure of information not governed by the act. Since the Legislature did not extend the act to control all disclosures of confidential matter by a therapist, we must infer that the Legislature did not relieve the courts of their obligation to define by reference to the principles of the common law the obligation of the therapist in those situations not governed by the act.

*444Turning now to the police defendants, we conclude that they do not have any such special relationship to either Tatiana or to Poddar sufficient to impose upon such defendants a duty to warn respecting Poddar’s violent intentions. (See Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9-10 [120 Cal.Rptr. 5]; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 593 [114 Cal.Rptr. 332].) Plaintiffs suggest no theory,18 and plead no facts that give rise to any duty to warn on the part of the police defendants absent such a special relationship. They have thus failed to demonstrate that the trial court erred in denying leave to amend as to the police defendants. (See Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 [75 Cal.Rptr. 766, 451 P.2d 406]; Filice v. Boccardo (1962) 210 Cal.App.2d 843, 847 [26 Cal.Rptr. 789].)

3. Defendant therapists are not immune from liability for failure to

warn.

We address the issue of whether defendant therapists are protected by governmental immunity for having failed to warn Tatiana or those who reasonably could have been expected to notify her of her peril. We postulate our analysis on section 820.2 of the Government Code.19 That provision declares, with exceptions not applicable here, that “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion [was] abused.”20

*445Noting that virtually every public act admits of some element of discretion, we drew the line in Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352], between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. We concluded that section 820.2 affords immunity only for “basic policy decisions.” (Italics added.) (See also Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1057-1058 [84 Cal.Rptr. 27]; 4 Cal. Law Revision Com. Rep. (1963) p. 810; Van Alstyne, Supplement to Cal. Government Tort liability (Cont. Ed. Bar 1969) § 5.54, pp. 16-17; Comment, California Tort Claims Act: Discretionary Immunity (1966) 39 So.Cal.L.Rev. 470, 471; cf. James, Tort Liability of Governmental Units and Their Officers (1955) 22 U.Chi.L.Rev. 610, 637-638, 640, 642, 651.)

We also observed that if courts did not respect this statutory immunity, they would find themselves “in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government.” (Johnson v. State of California, supra, at p. 793.) It therefore is necessary, we concluded, to “isolate those areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.” (Johnson v. State of California, supra, at p. 794.) After careful analysis we rejected, in Johnson, other rationales commonly advanced to support governmental immunity21 and concluded that the immunity’s scope should be no greater than is required to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions.

Relying on Johnson, we conclude that defendant therapists in the present case are not immune from liability for their failure to warn of Tatiana’s peril. Johnson held that a parole officer’s determination whether to warn an adult couple that their prospective foster child had a background of violence “presented] no . . . reasons for immunity” (Johnson v. State of California, supra, at p. 795), was “at the lowest, *446ministerial rung of official action” (id., at p. 796), and indeed constituted “a classic case for the imposition of tort liability.” (Id., p. 797; cf. Morgan v. County of Yuba, supra, 230 Cal.App.2d 938, 942-943.) Although defendants in Johnson argued that the decision whether to inform the foster parents of the child’s background required the exercise of considerable judgmental skills, we concluded that the state was not immune from liability for the parole officer’s failure to warn because such a decision did not rise to the level of a “basic policy decision.”

We also noted in Johnson that federal courts have consistently categorized failures to warn of latent dangers as falling outside the scope of discretionary omissions immunized by the Federal Tort Claims Act.22 (See United Air Lines, Inc. v. Wiener (9th Cir. 1964) 335 F.2d 379, 397-398, cert. den. sub nom. United Air Lines, Inc. v. United States, 379 U.S. 951 [13 L.Ed.2d 549, 85 S.Ct. 452] (decision to conduct military training flights was discretionary but failure to warn commercial airline was not); United States v. State of Washington (9th Cir. 1965) 351 F.2d 913, 916 (decision where to place transmission lines spanning canyon was assumed to be discretionary but failure to warn pilot was not); United States v. White (9th Cir. 1954) 211 F.2d 79, 82 (decision not to “dedud” army firing range assumed to be discretionaiy but failure to warn person about to go onto range of unsafe condition was not); Bulloch v. United States (D.Utah 1955) 133 F.Supp. 885, 888 (decision how and when to conduct nuclear test deemed discretionary but failure to afford proper notice was not); Hernandez v. United States (D.Hawaii 1953) 112 F.Supp. 369, 371 (decision to erect road block characterized as discretionary but failure to warn of resultant hazard was not).

We conclude, therefore, that the therapist defendants’ failure to warn Tatiana or those who reasonably could have been expected to notify her of her peril does not fall within the absolute protection afforded by section 820.2 of the Government Code. We emphasize that our conclu*447sion does not raise the specter of therapists employed by the government indiscriminately being held liable for damage despite their exercise of sound professional judgment. We require of publicly employed therapists only that quantum of care which the common law requires of private therapists. The imposition of liability in those rare cases in which a public employee falls short of this standard does not contravene the language or purpose of Government Code section 820.2.

4. Defendant therapists are immune from liability for failing to

confine Poddar.

We sustain defendant therapists’ contention that Government Code section 856 insulates them from liability under plaintiffs’ first and fourth causes of action for failing to confine Poddar. Section 856 affords public entities and their employees absolute protection from liability for “any injury resulting from determining in accordance with any applicable enactment.. . whether to confine a person for mental illness.” Since this section refers to a determination to confine “in accordance with any applicable enactment,” plaintiffs suggest that the immunity is limited to persons designated under Welfare and Institutions Code section 5150 as authorized finally to adjudicate a patient’s confinement. Defendant therapists, plaintiffs point out, are not among the persons designated under section 5150.

The language and legislative history of section 856, however, suggest a far broader immunity. In 1963, when section 856 was enacted, the Legislature had not established the statutoiy structure of the Lanterman-Petris-Short Act. Former Welfare and Institutions Code section 5050.3 (renumbered as Welf. & Inst. Code, § 5880; repealed July 1, 1969) which resembled present section 5150, authorized emergency detention at the behest only of peace officers, health officers, county physicians, or assistant county physicians; former section 5047 (renumbered as Welf. & Inst. Code, § 5551; repealed July 1, 1969), however, authorized a petition seeking commitment by any person, including the “physician attending the patient.” The Legislature did not refer in section 856 only to those persons authorized to institute emergency proceedings under section 5050.3; it broadly extended immunity to all employees who acted in accord with “any applicable enactment,” thus granting immunity not only to persons who are empowered to confine, but also to those authorized to request or recommend confinement.

*448The Lanterman-Petris-Short Act, in its extensive revision of the procedures for commitment of the mentally ill, eliminated any specific statutory reference to petitions by treating physicians, but it did not limit the authority of a therapist in government employ to request, recommend or initiate actions which may lead to commitment of his patient under the act. We believe that the language of section 856, which refers to any action in the course of employment and in accordance with any applicable enactment, protects the therapist who must undertake this delicate and difficult task. (See Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal.L.Rev. 1025, 1064.) Thus the scope of the immunity extends not only to the final determination to confine or not to confine the person for mental illness, but to all determinations involved in the process of commitment. (Cf. Hernandez v. State of California (1970) 11 Cal.App.3d 895, 899-900 [90 Cal.Rptr. 205].)

Turning first to Dr. Powelson’s status with respect to section 856, we observe that the actions attributed to him by plaintiffs’ complaints fall squarely within the protections furnished by that provision. Plaintiffs allege Powelson ordered that no actions leading to Poddar’s detention be taken. This conduct reflected Powelson’s determination not to seek Poddar’s confinement and thus falls within the statutory immunity.

Section 856 also insulates Dr. Moore for his conduct respecting confinement, although the analysis in his case is a bit more subtle. Clearly, Moore’s decision that Poddar be confined was not a proximate cause of Tatiana’s death, for indeed if Moore’s efforts to bring about Poddar’s confinement had been successful, Tatiana might still be alive today. Rather, any confinement claim against Moore must rest upon Moore’s failure to overcome Powelson’s decision and actions opposing confinement.

Such a claim, based as it necessarily would be, upon a subordinate’s failure to prevail over his superior, obviously would derive from a rather onerous duty. Whether to impose such a duty we need not decide, however, since we can confine our analysis to the question whether Moore’s failure to overcome Powelson’s decision realistically falls within the protection afforded by section 856. Based upon the allegations before us, we conclude that Moore’s conduct is protected.

Plaintiffs’ complaints imply that Moore acquiesced in Powelson’s countermand of Moore’s confinement recommendation. Such acquies*449cence is functionally equivalent to determining not to seek Poddar’s confinement and thus merits protection under section 856. At this stage we are unaware, of course, precisely how Moore responded to Powelson’s actions; he may have debated the confinement issue with Powelson, for example, or taken no initiative whatsoever, perhaps because he respected Powelson’s judgment, feared for his future at the hospital, or simply recognized that the proverbial handwriting was on the wall. None of these possibilities constitutes, however, the type of careless or wrongful behavior subsequent to a decision respecting confinement which is stripped of protection by the exception in section 856.23 Rather, each is in the nature of a decision not to continue to press for Poddar’s confinement. No language in plaintiffs’ original or amended complaints suggests that Moore determined to fight Powelson, but failed successfully to do so, due to negligent or otherwise wrongful acts or omissions. Under the circumstances, we conclude that plaintiffs’ second amended complaints allege facts which trigger immunity for Dr. Moore under section 856.24

5. Defendant police officers are immune from liability for failing to

confine Poddar in their custody.

Confronting, finally, the question whether the defendant police officers are immune from liability for releasing Poddar after his brief confinement, we conclude that they are. The source of their immunity is section 5154 of the Welfare and Institutions Code, which declares that: “[t]he professional person in charge of the facility providing 72-hour treatment and evaluation, his designee, and the peace officer responsible for the detainment of the person shall not be held civilly or criminally liable for any action by a person released at or before the end of 72 hours . . . .” (Italics added.)

Although defendant police officers technically were not “peace officers” as contempláted by the Welfare and Institutions Code,25 *450plaintiffs’ assertion that the officers incurred liability by failing to continue Poddar’s confinement clearly contemplates that the officers were “responsible for the detainment of [Poddar].” We could not impose a duty upon the officers to keep Poddar confined yet deny them the protection furnished by a statute immunizing those “responsible for . . . [confinement].” Because plaintiffs would have us treat defendant officers as persons who were capable of performing the functions of the “peace officers” contemplated by the Welfare and Institutions Code, we must accord defendant officers the protections which that code prescribed for such “peace officers.”

6. Plaintiffs’ complaints state no cause of action for exemplary damages.

Plaintiff’s third cause of action seeks punitive damages against defendant Powelson. The California statutes and decisions, however, have been interpreted to bar the recoveiy of punitive damages in a wrongful death action. (See Pease v. Beech Aircraft Corp. (1974) 38 Cal.App.3d 450, 460-462 [113 Cal.Rptr. 416] and authorities there cited.)

7. Conclusion

For the reasons stated, we conclude that plaintiffs can amend their complaints to state a cause of action against defendant therapists by asserting that the therapists in fact determined that Poddar presented a serious danger of violence to Tatiana, or pursuant to the standards of their profession should have so determined, but nevertheless failed to exercise reasonable care to protect her from that danger. To the extent, however, that plaintiffs base their claim that defendant therapists breached that duty because they failed to procure Poddar’s confinement, the therapists find immunity in Government Code section 856. Further, as to the police defendants we conclude that plaintiffs have failed to show that the trial court erred in sustaining their demurrer without leave to amend.

The judgment of the superior court in favor of defendants Atkinson, Beall, Brownrigg, Hallernan, and Teel is affirmed. The judgment of the superior court in favor of defendants Gold, Moore, Powelson, Yandell, and the Regents of the University of California is reversed, and the cause remanded for further proceedings consistent with the views expressed herein.

Wright, C. J., Sullivan, J., and Richardson, J., concurred.

*451MOSK, J., Concurring and Dissenting.

I concur in the result in this instance only because the complaints allege that defendant therapists did in fact predict that Poddar would kill and were therefore negligent in failing to warn of that danger. Thus the issue here is veiy narrow: we are not concerned with whether the therapists, pursuant to the standards of their profession, “should have” predicted potential violence; they allegedly did so in actuality. Under these limited circumstances I agree that a cause of action can be stated.

Whether plaintiffs can ultimately prevail is problematical at best. As the complaints admit, the therapists did notify the police that Poddar was planning to kill a girl identifiable as Tatiana. While I doubt that more should be required, this issue may be raised in defense and its determination is a question of fact.

I cannot concur, however, in the majority’s rule that a therapist may be held liable for failing to predict his patient’s tendency to violence if other practitioners, pursuant to the “standards of the profession,” would have done so. The question is, what standards? Defendants and a responsible amicus curiae, supported by an impressive body of literature discussed at length in our recent opinion in People v. Burnick (1975) 14 Cal.3d 306 [121 Cal.Rptr. 488, 535 P.2d 352], demonstrate that psychiatric predictions of violence are inherently unreliable.

In Burnick, at pages 325-326, we observed: “In the light of recent studies it is no longer heresy to question the reliability of psychiatric predictions. Psychiatrists themselves would be the first to admit that however desirable an infallible crystal ball might be, it is not among the tools of their profession. It must be conceded that psychiatrists still experience considerable difficulty in confidently and accurately diagnosing mental illness. Yet those difficulties are multiplied manyfold when psychiatrists venture from diagnosis to prognosis and undertake to predict the consequences of such illness: ' “A diagnosis of mental illness tells us nothing about whether the person so diagnosed is or is not dangerous. Some mental, patients are dangerous, some are not. Perhaps the psychiatrist is an expert at deciding whether a person is mentally ill, but is he an expert at predicting which of the persons so diagnosed are dangerous? Sane people, too, are dangerous, and it may legitimately be inquired whether there is anything in the education, training or experience of psychiatrists which renders them particularly adept at predicting dangerous behavior. Predictions of dangerous behavior, no *452matter who makes them, are incredibly inaccurate, and there is a growing consensus that psychiatrists are not uniquely qualified to predict dangerous behavior and are, in fact, less accurate in their predictions than other professionals.” ’ (Murel v. Baltimore City Criminal Court (1972)... 407 U.S. 355, 364-365, fn. 2 [32 L.Ed.2d 791, 796-797, 92 S.Ct. 2091] (Douglas, J., dissenting from dismissal of certiorari).)” (Fns. omitted.) (See also authorities cited at p. 327 & fn. 18 of 14 Cal.3d.)

The majority confidently claim their opinion is not offensive to Burnick, on the stated ground that Burnick involved proceedings to commit an alleged mentally disordered sex offender and this case does not. I am not so sanguine about the distinction. Obviously the two cases are not factually identical, but the similarity in issues is striking: in Burnick we were likewise called upon to appraise the ability of psychiatrists to predict dangerousness, and while we declined to bar all such testimony (id., at pp. 327-328) we found it so inherently untrustworthy that we would permit confinement even in a so-called civil proceeding only upon proof beyond a reasonable doubt.

I would restructure the rule designed by the majority to eliminate all reference to conformity to standards of the profession in predicting violence. If a psychiatrist does in fact predict violence, then a duty to warn arises. The majority’s expansion of that rule will take us from the world of reality into the wonderland of clairvoyance.

CLARK, J.

Until today’s majority opinion, both legal and medical authorities have agreed that confidentiality is essential to effectively treat the mentally ill, and that imposing a duty on doctors to disclose patient threats to potential victims would greatly impair treatment. Further, recognizing that effective treatment and society’s safety are necessarily intertwined, the Legislature has already decided effective and confidential treatment is preferred over imposition of a duty to warn.

The issue whether effective treatment for the mentally ill should be sacrificed to a system of warnings is, in my opinion, properly one for the Legislature, and we are bound by its judgment. Moreover, even in the absence of clear legislative direction, we must reach the same conclusion because imposing the majority’s new duty is certain to result in a net increase in violence.

The majority rejects the balance achieved by the Legislature’s Lanterman-Petris-Short Act. (Welf. & Inst. Code, § 5000 et seq., *453hereafter the act.)1 In addition, the majority fails to recognize that, even absent the act, overwhelming policy considerations mandate against sacrificing fundamental patient interests without gaining a corresponding increase in public benefit.

Statutory Provisions

Although the parties have touched only briefly on the nondisclosure provisions of the act, amici have pointed out their importance. The instant case arising after ruling on demurrer, the parties must confront the act’s provisions in the trial court. In these circumstances the parties’ failure to fully meet the provisions of the act would not justify this court’s refusal to discuss and apply the law.

Having a grave impact on future treatment of the mentally ill in our state, the majority opinion clearly transcends the interests of the immediate parties and must discuss all applicable law. It abdicates judicial responsibility to refuse to recognize the clear legislative policy reflected in the act.

Effective 1 July 1969, the Legislature created a comprehensive statutory resolution of the rights and duties of both the mentally infirm and those charged with their care and treatment. The act’s purposes include ending inappropriate commitment, providing prompt care, protecting public safety, and safeguarding personal rights. (§ 5001.) The act applies to both voluntary and involuntary commitment and to both public and private institutions; it details legal procedure for commitment; it enumerates the legal and civil rights of persons committed; and it spells out the duties, liabilities and rights of the psychotherapist. Thus the act clearly evinces the Legislature’s weighing of the countervailing concerns presently before us—when a patient has threatened a third person during psychiatric treatment.

Reflecting legislative recognition that disclosing confidences impairs effective treatment of the mentally ill, and thus is contrary to the best interests of society, the act establishes the therapist’s duty to not disclose. Section 5328 provides in part that “[a]ll information and records obtained in the course of providing services ... to either voluntary or involuntary recipients of services shall be confidential.” (Italics added.) Further, a patient may enjoin disclosure in violation of statute and. may *454recover the greater of $500 or three times the amount of actual damage for unlawful disclosure. (§ 5330.)

However, recognizing that some private and public interests must override the patient’s, the Legislature established several limited exceptions to confidentiality.2 The limited nature of these exceptions and the *455legislative concern that disclosure might impair treatment, thereby harming both patient and society, are shown by section 5328.1. The section provides that a therapist may disclose “to a member of the family of a patient the information that the patient is presently a patient in the facility or that the patient is seriously physically ill. .. if the professional person in charge of the facility determines that the release of such information is in the best interest of the patient.” Thus, disclosing even the fact of treatment is severely limited.

As originally enacted the act contained no provision allowing the therapist to warn anyone of a patient’s threat. In 1970, however, the act was amended to permit disclosure in two limited circumstances. Section 5328 was amended, in subdivision (g), to allow disclosure “[t]o governmental law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families.” (Italics added.) In addition, section 5328.3 was added to provide that when “necessary for the protection of the patient or others due to the patient’s disappearance from, without prior notice to, a designated facility and his whereabouts is unknown, notice of such disappearance may be made to relatives and governmental law enforcement agencies designated by the physician in charge of the patient or the professional person in charge of the facility or his designee.” (Italics added.)

Obviously neither exception to the confidentiality requirement is applicable to the instant case.

Not only has the Legislature specifically dealt with disclosure and warning, but it also has dealt with therapist and police officer liability for acts of the patient. The Legislature has provided that the therapist and the officer shall not be liable for prematurely releasing the patient. (§§ 5151, 5154,5173, 5278, 5305, 5306,)

*456Ignoring the act’s detailed provisions, the majority has chosen to focus on the “dangerous patient exception” to the psychotherapist-patient privilege in Evidence Code sections 1014, 1024 as indicating that “the Legislature has undertaken the difficult task of balancing the countervailing concerns.” (Ante, p. 440.) However, this conclusion is erroneous. The majority fails to appreciate that when disclosure is permitted in an evidentiary hearing, a fourth interest comes into play—the court’s concern in judicial supervision. Because they are necessary to the administration of justice, disclosures to the courts are excepted from the nondisclosure requirement by section 5328, subdivision (f). However, this case does not involve a court disclosure. Subdivision (f) and the Evidence Code sections relied on by the majority are clearly inapposite.

The provisions of the act are applicable here. Section 5328 (see fn. 2, ante) provides, “All information and records obtained in the course of providing services under division 5 . . . shall be confidential.” (Italics added.) Dr. Moore’s letter describing Poddar’s mental condition for purposes of obtaining 72-hour commitment was undisputedly a transmittal of information designed to invoke application of division 5. As such it constituted information obtained in providing services under division 5. This is true regardless of whether Dr. Moore has been designated a professional person by the County of Alameda. Although section 5150 provides that commitment for 72 hours’ evaluation shall be based on a statement by a peace officer or person designated by the county, section 5328 prohibits disclosure of all information, not just disclosure of the committing statement or disclosure by persons designated by the county. In addition, section 5330 gives the patient a cause of action for disclosure of confidential information by “an individual” rather than the persons enumerated in section 5150.

Moreover, it appears from the allegations of the complaint that Dr. Moore is in fact a person designated by the county under section 5150. The complaint alleges that “On or about August 20, 1969, defendant Dr. Moore notified Officers Atkinson and Teel, he would give the campus police a letter of diagnosis on Prosenjit Poddar, so the campus police could pick up Poddar and take him to Herrick Hospital in Berkeley where Dr. Moore would assign a 72-hour Emergency Psychiatric Detention on Prosenjit Poddar.” Since there is no allegation that Dr. Moore was not authorized to sign the document, it. must be concluded that under the allegations of the complaint he was authorized and thus a professional person designated by the county.

*457Whether we rely on the facts as stated in the complaint that Dr. Moore is a designated person under section 5150 or on the strict prohibitions of section 5328 prohibiting disclosure of “all informationthe imposition of a duty to warn by the majority flies directly in the face of the Lanterman-Petris-Short Act.

Under the act, there can be no liability for Poddar’s premature release. It is likewise clear there exists no duty to warn. Under section 5328, the therapists were under a duty to not disclose, and no exception to that duty is applicable here. Establishing a duty to warn on the basis of general tort principles imposes a Draconian dilemma on therapists—either violate the act thereby incurring the attendant statutory penalties, or ignore the majority’s duty to warn thereby incurring potential civil liability. I am unable to assent to such.

If the majority feels that it must impose such a dilemma, then it has an obligation to specifically enumerate the circumstances under which the Lanterman-Petris-Short Act applies as opposed to the circumstances when “general tort principles” will govern. The majority’s failure to perform this obligation—leaving to the therapist the subtle questions as to when each opposing rule applies—is manifestly unfair.

Duty to Disclose in the Absence of Controlling Statutory Provision

Even assuming the act’s provisions are applicable only to conduct occurring after commitment, and not to prior conduct, the act remains applicable to the most dangerous patients—those committed. The Legislature having determined that the balance of several interests requires nondisclosure in the graver public danger commitment, it would be anomalous for this court to reweigh the interests, requiring disclosure for those less dangerous. Rather, we should follow the legislative direction by refusing to require disclosure of confidential information received by the therapist either before or in the absence of commitment. The Legislature obviously is more capable than is this court to investigate, debate and weigh potential patient harm through disclosure against the risk of public harm by nondisclosure. We should defer to its judgment.

Common Law Analysis

Entirely apart from the statutory provisions, the same result must be reached upon considering both general tort principles and the public *458policies favoring effective treatment, reduction of violence, and justified commitment.

Generally, a person owes no duty to control the conduct of another. (Richards v. Stanley (1954) 43 Cal.2d 60, 65 [271 P.2d 23]; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277 [40 Cal.Rptr. 812]; Rest.2d Torts (1965) § 315.) Exceptions are recognized only in limited situations where (1) a special relationship exists between the defendant and injured party, or (2) a special relationship exists between defendant and the active wrongdoer, imposing a duty on defendant to control the wrongdoer’s conduct. The majority does not contend the first exception is appropriate to this case.

Policy generally determines duty. (Dillon v. Legg (1968) 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316].) Principal policy considerations include foreseeability of harm, certainty of the plaintiff’s injury, proximity of the defendant’s conduct to the plaintiff’s injury, moral blame attributable to defendant’s conduct, prevention of future harm, burden on the defendant, and consequences to the community. (Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561,32 A.L.RJd 496].)

Overwhelming policy considerations weigh against imposing a duty on psychotherapists to warn a potential victim against harm. While offering virtually no benefit to society, such a duty will frustrate psychiatric treatment, invade fundamental patient rights and increase violence.

The importance of psychiatric treatment and its need for confidentiality have been recognized by this court. (In re Lifschutz (1970) 2 Cal.3d 415, 421-422 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1].) “It is clearly recognized that the very practice of psychiatry vitally depends upon the reputation in the community that the psychiatrist will not tell.” (Slovenko, Psychiatry and a Second Look at the Medical Privilege (1960) 6 Wayne L.Rev. 175, 188.)

Assurance of confidentiality is important for three reasons. Deterrence From Treatment

First, without substantial assurance of confidentiality, those requiring treatment will be deterred from seeking assistance. (See Sen. Judiciary Com. comment accompanying § 1014 of Evid. Code; Slovenko, supra, 6 *459Wayne L.Rev. 175, 187-188; Goldstein & Katz, Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute (1962) 36 Conn.Bar J. 175, 178.) It remains an unfortunate fact in our society that people seeking psychiatric guidance tend to become stigmatized. Apprehension of such stigma—apparently increased by the propensity of people considering treatment to see themselves in the worst possible light—creates a well-recognized reluctance to seek aid. (Fisher, The Psychotherapeutic Professions and the Law of Privileged Communications (1964) 10 Wayne L.Rev. 609, 617; Slovenko, supra, 6 Wayne L.Rev. 175, 188; see also Rappeport, Psychiatrist-Patient Privilege (1963) 23 Md.L.J. 39, 46-47.) This reluctance is alleviated by the psychiatrist’s assurance of confidentiality.

Full Disclosure

Second, the guarantee of confidentiality is essential in eliciting the full disclosure necessary for effective treatment. (In re Lifschutz, supra, 2 Cal.3d 415, 431; Taylor v. United States (D.C.Cir. 1955) 222 F.2d 398, 401 [95 App.D.C. 373]; Goldstein & Katz, supra, 36 Conn.Bar J. 175, 178; Heller, Some Comments to Lawyers on the Practice of Psychiatry (1957) 30 Temp.L.Q. 401; Guttmacher & Weihofen, Privileged Communications Between Psychiatrist and Patient (1952) 28 Ind.L.J.32, 34.)3 The psychiatric patient approaches treatment with conscious and unconscious inhibitions against revealing his innermost thoughts. “Every person, however well-motivated, has to overcome resistances to therapeutic exploration. These resistances seek support from every possible source and the possibility of disclosure would easily be employed in the service of resistance.” (Goldstein & Katz, supra, 36 Conn.Bar J. 175, 179; see also, 118 Am.J.Psych. 734, 735.) Until a patient can trust his psychiatrist not to violate their confidential relationship, “the unconscious psychological control mechanism of repression will prevent the recall of past experiences.” (Butler, Psychotherapy and Griswold: Is Confidentiality a Privilege or a Right? (1971) 3 Conn.L.Rev. 599, 604.)

Successful Treatment

Third, even if the patient fully discloses his thoughts, assurance that the confidential relationship will not be breached is necessary to *460maintain his trust in his psychiatrist—the very means by which treatment is effected. “[T]he essence of much psychotherapy is the contribution of trust in the external world and ultimately in the self, modelled upon the trusting relationship established during therapy.” (Dawidoff, The Malpractice of Psychiatrists, 1966 Duke L.J. 696, 704.) Patients will be helped only if they can form a trusting relationship with the psychiatrist. (Id., at p. 704, fn. 34; Burham, Separation Anxiety (1965) 13 Arch.Gen.Psych. 346, 356; Heller, supra, 30 Temp.L.Q. 401, 406.) All authorities appear to agree that if the trust relationship cannot be developed because of collusive communication between the psychiatrist and others, treatment will be frustrated. (See, e.g., Slovenko (1973) Psychiatry and Law, p. 61; Cross, Privileged Communications Between Participants in Group Psychotherapy (1970) Law & Soc. Order, 191, 199; Hollender, The Psychiatrist and the Release of Patient Information (1960) 116 Am.J.Psych. 828, 829.)

Given the importance of confidentiality to the practice of psychiatry, it becomes clear the duty to warn imposed by the majority will cripple the use and effectiveness of psychiatry. Many people, potentially violent— yet susceptible to treatment—will be deterred from seeking it; those seeking it will be inhibited from making revelations necessary to effective treatment; and, forcing the psychiatrist to violate the patient’s trust will destroy the interpersonal relationship by which treatment is effected.

Violence and Civil Commitment

By imposing a duty to warn, the majority contributes to the danger to society of violence by the mentally ill and greatly increases the risk of civil commitment—the total deprivation of liberty—of those who should not be confined.4 The impairment of treatment and risk of improper commitment resulting from the new duty to warn will not be limited to a few patients but will extend to a large number of the mentally ill. *461Although under existing psychiatric procedures only a relatively few receiving treatment will ever present a risk of violence, the number making threats is huge, and it is the latter group—not just the former—whose treatment will be impaired and whose risk of commitment will be increased.

Both the legal and psychiatric communities recognize that the process of determining potential violence in a patient is far from exact, being fraught with complexity and uncertainty. (E.g., People v. Burnick (1975) 14 Cal.3d 306, 326 [121 Cal.Rptr. 488, 535 P.2d 352], quoting from Murel v. Baltimore City Criminal Court (1972) 407 U.S. 355, 364-365, fn. 2 [32 L.Ed.2d 791, 796-797, 92 S.Ct. 2091] (Douglas, J., dissenting from dismissal of certiorari); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L.Rev. 693, 711-716; Rector, Who Are the Dangerous? (July 1973) Bull.Am.Acad. Psych. & L. 186; Kozol, Boucher & Garofalo, The Diagnosis and Treatment of Dangerousness (1972) 18 Crime & Delinq. 371; Justice & Birkman, An Effort to Distinguish the Violent From the Nonviolent (1972) 65 So.Med.J. 703.)5 In fact, precision has not even been attained in predicting who of those having already committed violent acts will again become violent, a task recognized to be of much simpler proportions. (Kozol, Boucher & Garofalo, supra, 18 Crime & Delinq. 371, 384.)

This predictive uncertainty means that the number of disclosures will necessarily be large. As noted above, psychiatric patients are encouraged to discuss all thoughts of violence, and they often express such thoughts. However, unlike this court, the psychiatrist does not enjoy the benefit of *462overwhelming hindsight in seeing which few, if any, of his patients will ultimately become violent. Now, confronted by the majority’s new duty, the psychiatrist must instantaneously calculate potential violence from each patient on each visit. The difficulties researchers have encountered in accurately predicting violence will be heightened for the practicing psychiatrist dealing for brief periods in his office with .heretofore nonviolent patients. And, given the decision not to warn or commit must always be made at the psychiatrist’s civil peril, one can expect most doubts will be resolved in favor of the psychiatrist protecting himself.

Neither alternative open to the psychiatrist seeking to protect himself is in the public interest. The warning itself is an impairment of the psychiatrist’s ability to treat, depriving many patients of adequate treatment. It is to be expected that after disclosing their threats, a significant number of patients, who would not become violent if treated according to existing practices, will engage in violent conduct as a result of unsuccessful treatment. In short, the majority’s duty to warn will not only impair treatment of many who would never become violent but worse, will result in a net increase in violence.6

*463The second alternative open to the psychiatrist is to commit his patient rather than to warn. Even in the absence of threat of civil liability, the doubts of psychiatrists as to the seriousness of patient threats have led psychiatrists to overcommit to mental institutions. This overcommitment has been authoritatively documented in both legal and psychiatric studies. (Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, supra, 62 Cal.L.Rev. 693, 711 et seq.; Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma, 62 Cal.L.Rev. 1025, 1044-1046; Am. Psychiatric Assn. Task Force Rep. 8 (July 1974) Clinical Aspects of the Violent Individual, pp. 23-24; see Livermore, Malmquist & Meehl, On the Justifications for Civil Commitment, 117 U.Pa.L.Rev. 75, 84.) This practice is so prevalent that it has been estimated that “as many as twenty harmless persons are incarcerated for every one who will commit a violent act.” (Steadman & Cocozza, Stimulus/Response: We Can’t Predict Who Is Dangerous (Jan. 1975) 8 Psych. Today 32, 35.)

Given the incentive to commit created by the majority’s duty, this already serious situation will be worsened, contrary to Chief Justice Wright’s admonition “that liberty is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction.” (In re Gary W. (1971) 5 Cal.3d 296, 307 [96 Cal.Rptr. 1, 486 P.2d 1201].)

Conclusion

In adopting the act, the Legislature fully recognized the concerns that must govern our decision today—adequate treatment for the mentally ill, safety of our society, and our devotion to individual liberty, making overcommitment of the mentally ill abhorrent. (§ 5001.) Again, the Legislature balanced these concerns in favor of nondisclosure (§ 5328), thereby promoting effective treatment, reducing temptation for overcommitment, and ensuring greater safety for our society. Psychiatric and legal expertise on the subject requires the same judgment.

The tragedy of Tatiana Tarasoff has led the majority to disregard the clear legislative mandate of the Lanterman-Petris-Short Act. Worse, the majority impedes medical treatment, resulting in increased violence from—and deprivation of liberty to—the mentally ill.

*464We should accept legislative and medical judgment, relying upon effective treatment rather than on indiscriminate warning.

The judgment should be affirmed.

McComb, J., concurred.

OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

HELLERSTEIN, District Judge.

The injured, and the representatives of the thousands who died from the terrorist-related aircraft crashes of September 11, 2001, are entitled to seek compensation. By act of Congress, they may seek compensation by filing claims with a Special Master established pursuant to the Air Transportation Safety and System Stabilization Act of 2001, Pub.L. No. 107-42, 115 Stat. 230 (2001) (codified at 49 U.S.C. § 40101) (“the Act”). Or they may seek compensation in the traditional manner, by alleging and proving their claims in lawsuits, with the aggregate of their damages capped at the limits of defendants’ liability insurance. If they choose the former alternative, their claims will be paid through a Victim Compensation Fund from money appropriated by Congress, within a relatively short period after filing. Claimants will not have to prove fault or show a duty *287to pay on the part of any defendant. The amount of their compensation, however, may be less than their possible recovery from lawsuits, for non-economic damages are limited to $250,000, economic damages are subject to formulas that are likely to be less generous than those often allowable in lawsuits, and punitive damages are unavailable. I have discussed, and upheld, certain portions of the Act and regulations related to the Fund in Colaio v. Feinberg, 262 F.Supp.2d 273 (S.D.N.Y.2003), appeal filed, June 6, 2003.

Approximately seventy of the injured and representatives of those who died, and ten entities which sustained property damage, have chosen to bring lawsuits against defendants whom they claim are legally responsible to compensate them: the airlines, the airport security companies, the airport operators, the airplane manufacturer, and the operators and owners of the World Trade Center.1 The motions before me challenge the legal sufficiency of these lawsuits, and ask me to dismiss the complaints because no duty to the plaintiffs existed and because the defendants could not reasonably have anticipated that terrorists would hijack several jumbo jet airplanes and crash them, killing passengers, crew, thousands on the ground, and themselves. I discuss in this opinion the legal duties owed by the air carriers, United and American Airlines, and other airlines and airport security companies affiliated with the air carriers to the plaintiffs who were killed and damaged on the ground in and around the Twin Towers and the Pentagon; by the Port Authority of New York and New Jersey (“Port Authority”) and World Trade Center Properties LLC (“WTC Properties”) to those killed and injured in and around the Twin Towers; and by the Boeing Company, the manufacturer of the “757” jets that were flown into the Pentagon and the field near Shanks-ville, Pennsylvania, to those killed and injured in the two crashes. I hold in this opinion that each of these defendants owed duties to the plaintiffs who sued them, and I reject as well defendants’ alternative arguments for dismissal.

I. Background

A. Exclusive Jurisdiction and the Governing Law

The Air Transportation Safety and System Stabilization Act of 2001, Pub.L. No. 107-42, 115 Stat. 230 (2001) (codified at 49 U.S.C. § 40101) (“the Act”), passed in the weeks following the September 11 attacks, provides that those who bring suit “for damages arising out of the hijacking and subsequent crashes” must bring their suits in the United States District Court for the Southern District of New York. The Southern District has “original and exclusive jurisdiction” “over all actions brought for any claim (including any claim for loss of property, personal injury, or death) resulting from or relating to the terrorist-related aircraft crashes of September 11, 2001,” with the exception of claims to recover collateral source obligations and claims against terrorists and their aiders, abettors and conspirators, Act § 408(c). The Act provides that the governing law shall be “derived from the law, including choice of law principles, of the State in which the crash occurred unless such law is inconsistent with or preempted by Federal law.” Act § 408(b)(2). Thus, all cases, whether arising out of the crashes in New York, Virginia, or Pennsylvania, must be brought in the Southern District of New York, to be decided in accordance *288with the law of the state where the crash occurred.

B. The Complaints

Plaintiffs’ individual pleadings have been consolidated into five master complaints, one for the victims of each crash and one for the property damage plaintiffs. Plaintiffs allege that the airlines, airport security companies, and airport operators negligently failed to fulfill their security responsibilities, and in consequence, the terrorists were able to hijack the airplanes and crash them into the World Trade Center, the Pentagon, and the field in Shanksville, Pennsylvania, killing passengers, crew, and thousands in the World Trade Center and the Pentagon and causing extensive property damage. The complaints allege that the owners and operators of the World Trade Center, World Trade Center Properties LLC and the Port Authority of New York and New Jersey, negligently designed, constructed, maintained, and operated the buildings, failing to provide adequate and effective evacuation routes and plans. Plaintiffs who died in the crashes of American flight 77 and United flight 93 also sue Boeing, the manufacturer of the two “757” airplanes, for strict tort liability, negligent product design, and breach of warranty.

C. Motions to Dismiss

I heard oral argument on May 1 and 2, 2003 on six motions by the several categories of defendants. I previously have decided three of the motions, by most of the airport operators,2 by three airlines that did not carry any of the victims or alleged hijackers,3 and by Fiduciary Trust Company International and Franklin Templeton Investments, an employer of one of the victims.4 The three motions which remain, and which I now decide are: by the airlines and airport security companies (the “Aviation Defendants”);5 by the Port Authority and World Trade Center Properties LLC (together, the “WTC Defendants”); and by Boeing.

The Aviation Defendants concede that they owed a duty to the crew and passen*289gers on the planes, but contend that they did not owe any duty to “ground victims.” The Port Authority and WTC Properties argue that they did not owe a duty to protect occupants in the towers against injury from hijacked airplanes and, even if they did, the terrorists’ actions broke the chain of proximate causation, excusing any negligence by the WTC Defendants. And Boeing argues that it did not owe a duty to ground victims or passengers, and that any negligence on its part was not the proximate cause for the harms suffered by the plaintiffs.

II. Discussion

Defendants’ motions were made pursuant to Fed.R.Civ.P. 12(b)(6).6 A Rule 12(b)(6) motion requires the court to determine if plaintiff has stated a legally sufficient claim. A motion to dismiss under Rule 12(b)(6) may be granted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991). The court’s function is “not to assay the weight of the evidence which might be offered in support” of the complaint, but “merely to assess the legal feasibility” of the complaint. Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). In evaluating whether plaintiff could ultimately prevail, the court must take the facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Jackson Nat’l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir.1994).

A. Aviation Defendants’ Motion to Dismiss

The Aviation Defendants argue that they did not owe a duty to the ground victims; that the injuries suffered by the plaintiffs were beyond the scope of any foreseeable duty that may have been owed; and that the federal laws that regulate aviation preempt any state law to the contrary.

i. Choice of Law

Section 408(b)(2) of the Act provides that the substantive law “shall be derived from the law, including choice of law principles, of the State in which the crash occurred unless such law is inconsistent with or preempted by Federal law.” Ground victims of the planes that crashed into the World Trade Center and the Pentagon have filed suit against the Aviation Defendants, and thus the choice of law principles of New York and Virginia apply.

New York typically analyzes choice-of-law issues in tort cases according to two categories of rules: conduct-regulating and loss-allocating. The issue of duty — whether duty exists and its scope— is conduct-regulating. New York choice of law dictates that the state in which the tort took place has the strongest interest in applying its conduct-regulating rules. Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679, 684 — 85 (1985). Thus, the substantive law of New York governs the issue of duty in relation to the crashes at the World Trade Center.

*290Virginia’s choice of law rales apply to the ground damage claims arising from the crash of American flight 77 into the Pentagon. Under Virginia law, the substantive law of the place of the tort controls. McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662, 664 (1979). The parties agree that the law of Virginia does not differ materially from New York law with respect to the issue of duty and rely on New York law for their arguments.

ii. Existence of Duty to Ground Victims

“The threshold question in any negligence action is: does the defendant owe a legally recognized duty of care to plaintiff?” Hamilton v. Beretta U.S.A Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055, 1060 (2001). In New York, the existence of a duty is a “legal, policy-laden declaration reserved for judges.” Pallca v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189, 192 (1994). The injured party must show that a defendant owed not merely a general duty to society but a specific duty to the particular claimant, for “without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm.” Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184, 187 (2000). Courts traditionally “fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.” Polka, 611 N.Y.S.2d 817, 634 N.E.2d at 193.

New York courts have been cautious in extending liability to defendants for their failure to control the conduct of others, “even where as a practical matter [the] defendant can exercise such control.” D’Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1, 518 N.E.2d 896, 901 (1987). “This judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another.” Hamilton, 727 N.Y.S.2d 7, 750 N.E.2d at 1061. However, courts have imposed a duty when the defendant has control over the third party tortfeasor’s actions, or the relationship between the defendant and plaintiff requires the defendant to protect the plaintiff from the conduct of others. As the New York Court of Appeals ruled, “The key in each [situation] is that the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm.” Id. One additional consideration, the Court of Appeals added, is that “the specter of limitless liability is not present because the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship.” Id.

Plaintiffs allege that the Aviation Defendants negligently failed to carry out their duty to secure passenger aircraft against potential terrorists and weapons smuggled aboard, enabling the terrorists to hijack and crash four airplanes. Plaintiffs argue that the Aviation Defendants employed their security measures specifically to guard against hijackings, and knew or should have known that the hijacking of a jumbo jet would create substantial risks of damage to persons and property, not only to passengers and crew, but also to people and property on the ground. Plaintiffs assert also that terrorism was a substantial international concern, and that suicidal acts by terrorists seeking to cause death, injury and havoc to as many inno*291cent people as possible had become a frequently used strategy.

I must test this dispute over duty even before a record has been established. In New York, duty is a legal question, for the judge to decide. I must assume, for the purpose of the motion, that all well-pleaded facts about the defendants’ negligence are true and will in time be proved, and that defendants’ negligence proximately caused the injuries and deaths upon which plaintiffs filed their lawsuits.

Airplane crashes in residential areas are not unknown. In January 1952, an American Airlines Convair crashed into a residential area of Elizabeth, New Jersey on its approach to Newark airport, killing passengers and crew, as well as seven residents of houses it struck. Elizabeth Recalls First of S Crashes, N.Y. Times, Dec. 17,1952, at 27. A month later, another plane out of Newark, a National Airlines DC-6, struck an apartment house in New Jersey, killing 29 passengers and four tenants of the apartment house. Id. Military airplanes have had to make emergency landings on highways, and have collided with automobiles. See Rehm v. United States, 196 F.Supp. 428 (E.D.N.Y.1961). On July 9, 1982, a Pan American World Airways jet crashed shortly after takeoff, killing all on board and eight individuals on the ground. The airline and the government acknowledged liability for the crash, which was caused by windy conditions. Pan Am and U.S. Accept Responsibility for Crash, N.Y. Times, May 13, 1983, at 6. In January 1990, a Columbian passenger airplane exhausted its fuel supply while circling La Guardia Airport waiting for clearance to land, and crashed into a residential backyard in Long Island’s populated North shore. See In re Air Crash Disaster at Cove Neck, 885 F.Supp. 434 (E.D.N.Y.1995). On November 12, 2001, two months after the aircraft crashes of September 11, 2001, a jumbo-jet passenger airplane lost its stability in take-off from JFK airport and crashed into a populated area of the Rockaways, causing the deaths of over two hundred passengers and crew members and five people on the ground. Dan Barry and Elissa Gootman, 5 Neighbors Gone, N.Y. Times, Nov. 14, 2001, at Dll. Such incidents are inevitable in the context of the sheer number of miles flown daily in the United States. None matches the quantity or quality of tragedy arising from the terrorist-related aircraft crashes of September 11.

Airlines typically recognize responsibility to victims on the ground. See, e.g., Rehm, 196 F.Supp. at 428; Cove Neck, 885 F.Supp. at 439-40. As counsel for the Aviation Defendants stated in argument,

Assuming negligence and assuming there is damage to houses on the ground that is the type of traditional ground damage negligent maintenance cases in which the courts have imposed duty.... [W]e would concede in those circumstances assuming the facts of liability are proven there is a legal duty.

(Tr. of May 1, 2003 at 8.) However, counsel did not concede duty in relation to those killed and injured on the ground in the September 11, 2001 aircraft crashes. The “potential for a limitless liability to an indeterminate class of plaintiffs,” he argued, made the instant cases distinguishable. Id. The distinction, in his opinion, is “no[t][a] difference in kind,” but “the law of extraordinary consequences [which] can sometimes draw a distinction based on degree.” Id. at 9-10. He explained:

We are in an area of policy and there are lines to be drawn that may occasionally seem arbitrary. But what really distinguishes our case from [the hypothetical example of an airplane crash into Shea Stadium while taking off from, or landing at, La Guardia airport] is the *292intentional intervening acts of the third party terrorists.7

Id. As defense counsel commented, “we are in an area of policy,” where “the existence and scope of a tortfeasor’s duty is ... a legal question for the courts,” 532 Madison Ave. Gourmet Foods, Inc. v. Fin-landia Center, Inc., 96 N.Y.2d 280, 727 N.Y.S.2d 49, 750 N.E.2d 1097, 1101 (2001) (Kaye, Ch. J.).

It is the court’s job to “fix the duty point by balancing factors,” including the following:

the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.

Id. (citation omitted). 532 Madison Avenue involved collapses of a high-rise office budding and a 48-story construction elevator tower, both in midtown Manhattan and both causing busy areas of the city to be closed for a two-week period. The lawsuits sought recovery of financial losses resulting from the closures; plaintiffs had not suffered personal injury or property damage. Applying the considerations set out above, the Court of Appeals limited the scope of defendants’ duty “to those who have, as a result of these events, suffered personal injury or property damage,” but held that those who suffered merely financial losses could not recover. Id. at 1103. The Court of Appeals acknowledged that “[pjohcy-driven • line-drawing is to an extent arbitrary because, wherever the line is drawn, invariably it cuts off liability to persons who foreseeably might be plaintiffs.” Id. If those who suffered financial losses were to be allowed to sue, the Court of Appeals held, “an indeterminate group in the affected areas” would be able to recover. Id. If, however, the field of plaintiffs was to be limited to those who “suffered personal injury or property damage” as a result of defendants’ negligence, the limitation would “afford[ ] a principled basis for reasonably apportioning liability,” and be “historically” consistent with New York precedents. Id.

The cases before me involve claims to recover for personal injuries, death, or property damage. They fall within the line drawn by the New York Court of Appeals in 532 Madison Avenue. There may be more plaintiffs within the ambit of duty at issue here than those contemplated under the rule set forth in 532 Madison Avenue, but that is not a principled basis of distinction. I therefore hold that the Aviation Defendants owed a duty of care, not only to their passengers to whom they concede they owed this duty, but also to victims on the ground.

In terms of the 532 Madison Avenue analysis, plaintiffs are favored by the first of the factors set out above, for plaintiffs and society generally could have reasonably expected that the screening performed at airports by the Aviation Defendants would be for the protection of people on the ground as well as for those in airplanes. Ours is a complicated and specialized society. We depend on others charged with special duties to protect the quality of the water we drink and the air we breathe, to bring power to our neighborhoods, and to enable us to travel with a sense of security over bridges, through tunnels and via subways. We live in the vicinity of busy airports, and we work in *293tall office towers, depending on others to protect us from the willful desire of terrorists to do us harm. Some of those on whom we depend for protection are the police, fire and intelligence departments of local, state and national governments. Others are private companies, like the Aviation Defendants. They perform their screening duties, not only for those boarding airplanes, but also for society generally. It is both their expectation, and ours, that the duty of screening was performed for the benefit of passengers and those on the ground, including those present in the Twin Towers on the morning of September 11, 2001.

Nothing that I hold or say should be considered as any form of ruling on the reasonableness of the Aviation Defendants’ conduct. Nor should it be construed as a finding on whether their conduct was the proximate cause of plaintiffs’ damages, or whether that of the terrorists’ constituted an intervening act breaking the chain of causation. I simply hold that the Aviation Defendants, and plaintiffs and society generally, could reasonably have expected that the screening methods at Logan, Newark, and Dulles airports were for the protection of people on the ground as well as for those on board the airplanes that the terrorists hijacked.

The second factor to consider is “the proliferation of claims.” 532 Madison Ave., 727 N.Y.S.2d 49, 750 N.E.2d at 1101. Proliferation, however, should not be mistaken for size of number. As long as the claimants are known and circumscribed by those “who have, as a result of these events, suffered personal injury or property damage,” there is not an impermissible proliferation. See id. at 1103. See also In re Air Crash Disaster at Cove Neck, 885 F.Supp. 434, 439-440 (E.D.N.Y.1995) (allowing claims of emotional injury only for those who also suffered physical injury).

Plaintiffs, the ground victims in the cases before me, complain of directly-caused physical injuries to their persons or property. Their number may be large,8 tragically large, and the potential liability may be substantial if negligence and cause is proven, but the class is not indefinite and claims at this point cannot proliferate. Furthermore, the defendants will be hable only if plaintiffs sustain their burden of proof, with the aggregate liability of the air carriers, aircraft manufacturers, airport sponsors, and persons with a property interest in the World Trade Center capped by federal statute to the limits of their liability insurance coverage. Act § 408(a)(1). Thus, “the likelihood of unlimited or insurer-like liability,” the third factor of 532 Madison Avenue, does not weigh heavily against a finding of duty.

The fourth factor of 532 Madison Avenue is “disproportionate risk and reparation allocation.” This inquiry probes who was best able to protect against the risks at issue and weighs the costs and efficacy of imposing such a duty. The airlines, and the airport security companies, could best screen those boarding, and bringing objects onto, airplanes. The same activities reasonably necessary to safeguard passengers and crew are those that would protect the public as well. Hijacking presents a substantial elevation of risks, not only to those aboard the hijacked airplane, but also to those on the ground. This case is thus distinguishable from other cases where courts did not find a duty to protect against third-party conduct. In Waters v. *294 New York City Housing Authority, the court held that the owner of a housing-project did not owe a duty to a passerby when she was dragged off the street into the budding and assaulted. 69 N.Y.2d 225, 513 N.Y.S.2d 356, 505 N.E.2d 922 (1987). Imposing such a duty on landowners would do little to minimize crime, and the social benefits to be gained did not warrant the extension of the landowner’s duty. See id. at 924. Similarly, in Hamilton, 727 N.Y.S.2d 7, 750 N.E.2d at 1062, the court held that gun manufacturers did not owe a duty to victims of gun violence for negligent marketing and distribution of firearms. The connection between the manufacturers, criminal wrongdoers, and victims was too remote, running through many links in a long chain, from manufacturer, distributor or wholesaler, retailer, legal purchasers, unlawful possessors, and finally to the victims of gun violence. The court stated:

To impose a general duty of care upon the makers of firearms under these circumstances because of their purported ability to control marketing and distribution of their products would conflict with the principle that any judicial recognition of a duty of care must be based upon an assessment of its efficacy in promoting a social benefit as against its costs and burdens. Here, imposing such a general duty of care would create not only an indeterminate class of plaintiffs but also an indeterminate class of defendants whose liability might have little relationship to the benefits of controlling illegal guns.

Id. at 1063. Unlike Hamilton and Waters, the Aviation Defendants could best control-the boarding of airplanes, and were in the best position to provide reasonable protection against hijackings and the dangers they presented, not only to the crew and passengers, but also to ground victims. Imposing a duty on the Aviation Defendants best allocates the risks to ground victims posed by inadequate screening, given the Aviations Defendants’ existing and admitted duty to screen passengers and items carried aboard.

Lastly, recognition of a duty on the part of the Aviation Defendants would not substantially expand or create “new channels of liability,” the fifth and last factor of 532 Madison Avenue. New York courts have found on other occasions that aircraft owners and operators owe a duty to those on the ground who may be harmed or sustain property damage resulting from improper or negligent operation of an aircraft. See, e.g., Hassanein v. Avianca Airlines, 872 F.Supp. 1183, 1188-90 (E.D.N.Y.1995) (denying defendant’s tnotion for summary judgment where plane crash could have caused a handrail in plaintiffs house to loosen, causing her fall down the stairs); Rehm v. United States, 196 F.Supp. 428, 430-31 (E.D.N.Y.1961) (awarding damages where car occupants were hit by a plane which crashed after engine failure); Schneider v. United States, 188 F.Supp. 911, 915 (E.D.N.Y.1960) (same). Cf. In re Air Crash ‘ Disaster at Cove Neck, 885 F.Supp. 434, 439-440 (E.D.N.Y.1995) (ground" victims of plane crash could only sustain claim if they suffered personal injury or property damage). Although these cases involved injuries resulting from negligent operation or maintenance of airplanes, rather than negligence in regulating the boarding of airplanes, there is no principled distinction between the modes of negligence. The same general principle governs, that air carriers owe a duty to people on the ground as well as to passengers and crew.

The Second Circuit has recognized that airlines have a duty not only to passengers on the flights they operate, but also to passengers on connecting flights, and. thus may be liable when they allow terrorists *295to board planes. In Stanford v. Kuwait Airways Corp., 89 F.3d 117 (2d Cir.1996), the airline failed adequately to screen passengers against terrorists. The hijacking occurred, not on the airplane initially boarded, but on the connecting flight. The Second Circuit, relying on general tort principles including New York law, upheld the air carrier’s duty of care as to the passengers on the connecting flight. Id. at J.25. Clearly, the duty of care extends to cover those embraced by the risk of the terrorists’ conduct.

Accordingly, I hold on the pleadings that the Aviation Defendants owed a duty of care to the ground victim plaintiffs.

iii. Scope of Duty to Ground Victims: the Issue of Foreseeability

Defendants, argue that the ground victims lost their lives and suffered injuries from an event that was not reasonably foreseeable, for terrorists had not previously used a hijacked airplane as a suicidal weapon to destroy buildings and murder thousands. Defendants contend that because the events of September 11 were not within the reasonably foreseeable risks, any duty of care that they would owe to ground victims generally should not extend to the victims of September 11.

The scope of duty to a particular class of plaintiffs depends on the relationship to such plaintiffs, whether plaintiffs were within a zone of foreseeable harm, and whether the harm was within the class of reasonably foreseeable hazards that the duty exists to prevent. Di Ponzio v. Riordan, 89 N.Y.2d 578, 657 N.Y.S.2d 377, 679 N.E.2d 616, 618 (1997) (citations omitted). See also Palsgraf v. Long Island R.R. Co., 248 Ñ.Y. 339, 162 N.E. 99, 100-01 (1928). While foreseeability is generally for the fact finder to resolve, courts may dismiss cases where the risks are unforeseeable as a matter of law. Sanchez v. State of New York, 99 N.Y.2d 247, 754 N.Y.S.2d 621, 784 N.E.2d 675, 678 (2002). “The nature of the inquiry depends, of course, on the particular facts and circumstances in which the duty question arises.” Di Ponzio, 657 N.Y.S.2d 377, 679 N.E.2d at 618.

In order to be considered foreseeable, the precise manner in which the harm was inflicted need not be perfectly predicted. As Di Ponzio v. Riordan explained: “Where an individual breaches a legal duty and thereby causes an occurrence that is within the class of foreseeable hazards that the duty exists to prevent, the individual may be held liable, even though the harm may have been brought about in an unexpected way. On the other hand, no liability will result when the occurrence is not one that is normally associated with such hazards. Significantly, the kind and number of hazards encompassed within a particular duty depend on the nature of the duty.” 657 N.Y.S.2d 377, 679 N.E.2d at 619. However, courts must be careful to draw a line between remote possibilities and those that are reasonably foreseeable in order to prevent the imposition of liability “with the wisdom born of the event.” Id. (citation omitted).

New York cases emphasize that courts must closely examine the nature of the duty owed and the injury sustained in order to determine if the injury was within a class of foreseeable risks. Di Ponzio held that the alleged misconduct of defendant’s employees — gas station attendants who failed to require a customer to turn off his engine while getting gas — did not give rise to liability from a risk that was not associated with the duty of care. .In that case, a car that had been left running slid backward, striking the plaintiff. The court found that the injuries sustained by the plaintiff were not among the hazards associated with leaving a car engine run*296ning during the operation of a gas pump. See id. at 620. The duty existed to avoid fire and explosion, not to protect against a vehicle that was not properly braked.

Construing the factual allegations in the light most favorable to the plaintiffs, I conclude that the crash of the airplanes was within the class of foreseeable hazards resulting from negligently performed security screening. While it may be true that terrorists had not before deliberately flown airplanes into buildings, the airlines reasonably could foresee that crashes causing death and destruction on the ground was a hazard that would arise should hijackers take control of a plane. The intrusion by terrorists into the cockpit, coupled with the volatility of a hijacking situation, creates a foreseeable risk that hijacked airplanes might crash, jeopardizing innocent lives on the ground as well as in the airplane. While the crashes into the particular locations of the World Trade Center, Pentagon, and Shanksville field may not have been foreseen, the duty to screen passengers and items brought on board existed to prevent harms not only to passengers and crew, but also to the ground victims resulting from the crashes of hijacked planes, including the four planes hijacked on September 11.

Defendants point to two decisions in cases brought against manufacturers and distributors of ammonium nitrate utilized in the Oklahoma City bombing and the 1993 attack on the World Trade Center. Relying on either New York or New Jersey law and on Oklahoma law, the courts found that the fertilizer products were not themselves dangerous and served socially useful purposes. In Gaines-Tabb v. ICI Explosives USA, Inc., the district court ruled that the manufacturer did not owe a duty to the plaintiffs because the manufacturer did not expose the plaintiffs to a “recognizable high degree of risk of harm through the misconduct of third persons which a reasonable person would take into account.” 995 F.Supp. 1304, 1317 (W.D.Okla.1996) (citation omitted). On appeal, the Tenth Circuit affirmed, but on the ground that the terrorists’ actions served as the supervening cause for the plaintiffs’ injuries. 160 F.3d 613, 620 (10th Cir.1998). In Port Authority of New York and' New Jersey v. Arcadian Corp., the Third Circuit held that the manufacturers and distributors of ammonium nitrate did not owe a duty to the plaintiffs, because the product had been substantially altered after leaving the defendants’ control, and because only the altered product created the danger to the plaintiff. 189 F.3d 305, 317 (3d Cir.1999). “[DJefendants’ products were not in and of themselves dangerous but were merely the raw materials or components that terrorists used in combination with other ingredients to build a bomb.” Id. at 313.

The cases are distinguishable. Ammonium nitrate is a socially and economically useful product. To require manufacturers to prevent the appropriation of their products for an unintended purpose when manufacturers have no control over who purchases and alters the fertilizer would be an undue burden. Unlike the manufacturers, however, the Aviation Defendants controlled who came onto the planes and what was carried aboard. They had the obligation to take reasonable care in screening precisely because of the risk of terrorist hijackings, and the dangerous consequences that would inevitably follow. The consequences that in fact followed were ■within the scope of the duty that the Aviation Defendants undertook to carry out.

I hold at this stage of the litigation, on the pleadings and before any discovery has taken place, that the injuries suffered by the ground victims arose from risks that *297were within the scope of the duty undertaken by the Aviation Defendants.

iv. Federal Law Preemption

Defendants argue that federal law preempts plaintiffs’ claims and that an imposition of a duty of care on the part of the Aviation Defendants in favor of ground victims would be “inconsistent with” the air safety provisions of federal law. Section 408(b)(2) of the Act provides: “The substantive law for decision in any such suit shall be derived from the law, including choice of law principles, of the state in which the crash occurred unless such law is inconsistent with or preempted by Federal law.” Defendants contend that since federal regulations providing for protection of passengers and property on aircraft in the event of air piracy do not mention people or property on the ground, it would be inconsistent with the regulatory scheme to impose a duty on the Aviation Defendants towards ground victims. See 49 U.S.C. § 44903(b) (mandating the promulgation of “regulations to protect passengers and property on an aircraft” against acts of criminal violence or aircraft piracy); 14 C.F.R. § 107.3(a)(1) (2001) (air carrier security programs shall “[p]rovide for the safety of persons and property traveling in air transportation and intrastate air transportation against acts of criminal violence and air privacy”). They also contend that the Federal Aviation Administration’s “common strategy” approach of full cooperation with the hijackers demonstrates the policy of protecting those on board. Thus, because federal regulations and the FAA’s terrorist countermeasures did not account for the lives of ground victims, the Aviation Defendants believe they did not owe a duty under federal law to the ground victims.

There is no beginning assumption against preemption in those areas of the law “where there has been a history of significant federal presence.” United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000). In areas in which there has been a history of significant federal control, courts “must ask whether the local laws in question are consistent with the federal statutory structure,” rather than assuming that “concurrent regulation by the State is a valid exercise of its police powers.” Id. Aviation is clearly an area with a significant history of federal control.

The courts have taken different positions on the scope of preemption in the aviation context. For example, the First and Third Circuits, as well as courts in this district, have held that federal law establishes the applicable standards of care in the field of aviation. Abdullah v. American Airlines, 181 F.3d 363 (3d Cir.1999) (examining a claim brought by passengers injured during flight as a result of turbulence and concluding that traditional state and territorial law remedies continue to exist for violation of federal standards); French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir.1989) (holding that Federal Aviation Act’s prescriptions for the employment of pilots preempted state statute regulating drug testing for employees); Curtin v. Port Auth. ofN.Y. and N.J., 183 F.Supp.2d 664 (S.D.N.Y.2002) (finding proper removal of state law claims accusing an airline of negligent supervision and control of emergency evacuation procedures because the comprehensive federal regulatory scheme covering emergency evacuation procedures preempts state law); Schaeffer v. Cavallero, 29 F.Supp.2d 184 (S.D.N.Y.1998) (federal law, not state law, determines right of air carrier to refuse to transport, and to evict, passenger). A few courts have taken a different approach, holding that federal law does not always preempt state law tort claims. See *298 Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1444 (10th Cir.1993) (holding that Congress has not indicated a “clear and manifest” intent to occupy the field of airplane safety to the exclusion of state common law); Sakellaridis v. Polar Air Cargo, Inc., 104 F.Supp.2d 160, 163 (E.D.N.Y.2000) (claims by airline mechanic injured while servicing large aircraft may be brought under New York Labor Law and are not preempted by federal statutes relating to safety equipment).

These cases do not involve the issue of duty. Preemption is generally found, not in connection with the existence and scope of duty, but in connection with the standards governing the conduct and procedures relating to aviation — the standard of care, that is, by which an air carrier must carry out its activities. Defendants have not shown any inconsistency between the law of duty provided by New York law and federal statutes or regulations. The FAA may not have predicted a hijacking that had as its purpose crashing the airplane into a heavily occupied office tower, but that says nothing about the extent, or limitation, of the duty of the screening procedures that the Aviation Defendants performed. The federal regulations do not suggest that crashes of hijacked airplanes and death and destruction to people on the ground as well as in the airplanes were unforeseeable as a matter of law.

I therefore hold that New York’s law of duty is not inconsistent with, or preempted by, federal law.

For the reasons stated, I deny the Aviation Defendants’ motion to dismiss the claims of the ground victims.

B. World Trade Center Defendants’ Motions to Dismiss

i. Background

The Port Authority of New York and New Jersey and WTC Properties LLC move to dismiss all claims brought against them as owners and operators of the World Trade Center9 for loss of life, personal injury, and damage to nearby property and businesses resulting from the collapse of the Twin Towers. The claims are alleged in two Master Complaints regarding Flights 11 and 175 in the consolidated litigation, and in numerous individual complaints.10 Plaintiffs allege that the WTC Defendants: 1) failed to design and construct the World Trade Center buildings according to safe engineering practices and to provide for safe escape routes and adequate sprinkler systems and fireproofing; 2) failed to inspect, discover, and repair unsafe and dangerous conditions, and to maintain fireproofing materials; 3) failed to develop adequate and safe evacuation and emergency management plans; 4) failed to apply, interpret and/or enforce *299applicable building and fire safety codes, regulations and practices; and 5) instructed Tower Two occupants to return to their offices and remain in the building even while the upper floors of Tower One were being consumed by uncontrolled fires following the airplane crash into Tower One. See Plaintiffs’ Flight 11 Master Liability Complaint ¶ 85; Plaintiffs’ Flight 175 Master Liability Complaint ¶ 82.

The WTC Defendants argue that the complaints against them should be dismissed because they had no duty to anticipate and guard against deliberate and suicidal aircraft crashes into the Towers, and because any alleged negligence on their part was not a proximate cause of the plaintiffs’ injuries.11 The Port Authority argues also that it is entitled to immunity because the complained-of conduct essentially consisted of governmental functions.

Because all these claims arise from crashes into the World Trade Center Towers, New York’s choice of law rules apply. See Act § 408(b). As discussed earlier, New York has the strongest interest in applying its substantive law to define the issues of duty, proximate causation, and governmental immunity involved in this motion and thus its law will be applied. See Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679, 684-85 (1985).

n. Existence and Scope of Duty

The WTC Defendants contend that they owed no duty to “anticipate and guard against crimes unprecedented in human history.” Plaintiffs argue that defendants owed a duty, not to foresee the crimes, but to have designed, constructed, repaired and maintained the World Trade Center structures to withstand the effects and spread of fire, to avoid building collapses caused by fire and, in designing and effectuating fire safety and evacuation procedures, to provide for the escape of more people.

The existence of a duty owed by the WTC Defendants to its lessees and business occupants has been clearly set out in New York law. “A landowner has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition,” Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 881, 449 N.E.2d 725, 727 (1983), including the duty to adopt reasonable fire-safety precautions, see Washington v. Albany Hous. Auth., 297 A.D.2d 426, 746 N.Y.S.2d 99, 101 (N.Y.App.Div.2002), regardless of the origin of the fire, see Whitfield v. City of New York, 239 A.D.2d 492, 657 N.Y.S.2d 757, 759 (N.Y.App.Div.1997), and Taieb v. Hilton Hotels Corp., 131 A.D.2d 257, 520 N.Y.S.2d 776, 777 (N.Y.App.Div.1987). What constitutes reasonable fire prevention is dictated by the actual property. Taieb, 520 N.Y.S.2d at 777. Specific fire hazards caused by the actual budding’s design or by the materials used in the building must be corrected by the owner in a timely fashion, even when the owner has fully complied with all applicable fire and building codes. Washington, 746 N.Y.Süd at 101.

The duty of landowners and lessors to adopt fire-safety precautions applies to fires caused by criminals. “[L]andowners have a duty to protect tenants, patrons or invitees from foreseeable harm caused by the criminal conduct of *300others while they are on the premises.” Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055, 1061 (2001). See also Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 730 N.Y.S.2d 770, 756 N.E.2d 58, 60 (2001). In Brennan v. New York City Housing Authority, the Housing Authority was liable for failing properly to respond to a gas leak, which fueled a fire, after a third-party defendant stole a stove from an apartment. 302 A.D.2d 483, 756 N.Y.S.2d 73, 74 (N.Y.App.Div.2003). Likewise, the WTC Defendants owed a duty to the occupants to create and implement adequate fire safety measures, even in the case of a fire caused by criminals such as those who hijacked flights 11 and 175 on September 11, 2001.

The criteria for establishing the existence of duty, discussed previously in the context of the Aviation Defendants’ duty to ground victims, applies as well to the duty of landowners to lessees and business occupants. See 582 Madison Ave., Gourmet Foods, Inc. v. Finlandia Ctr., 96 N.Y.2d 280, 727 N.Y.S.2d 49, 750 N.E.2d 1097, 1101 (2001); Polka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189, 193 (1994). First, the parties and society would reasonably expect that the WTC Defendants would have a duty to the occupants of the Twin Towers in designing, constructing, repairing and maintaining the structures, in conforming to appropriate building and fire safety codes, and in creating appropriate evacuation routes and procedures should an emergency occur. Second, although a large number of claims have been filed against the WTC Defendants, there is no danger that the number will proliferate beyond those who died in the collapse of the structures or were injured while trying to escape. Similarly, the WTC Defendants are not subject to unlimited or insurer-like liability, for they can be held liable only after a showing of fault and only to those who suffered death, personal injury, or property damage resulting from their alleged negligence. Furthermore, by specific provision of the Air Transportation Safety and System Stabilization Act, their liability is limited to their insurance coverage. Act § 408(a)(1). Fourth, the defendants’ relationship with the plaintiffs, as their landlord or the landlord of their employer, placed the WTC Defendants in the best position to protect against the risk of harm. And fifth, as discussed above, imposing a duty on the WTC Defendants in the situation at hand will not create new channels of liability, for the New York courts have held traditionally that landlords owe duties of safety and care to the occupants of leased premises and their invitees.

A finding of duty also requires a consideration of the nature of plaintiffs’ injuries, and the likelihood of their occurrence from a particular condition. “Defining the nature and scope of the duty and to whom the duty is owed requires consideration of the likelihood of injury to another from a dangerous condition or instrumentality on the property; the severity of potential injuries; the burden on the landowner to avoid the risk; and the foreseeability of a potential plaintiffs presence on the property.” Kush, 462 N.Y.S.2d 831, 449 N.E.2d at 727. The criteria are clearly satisfied, for the severity and likelihood of potential injuries of people unable to escape from a heavily occupied building before fires envelope evacuation routes is high. The more difficult question is whether the injuries arose from a reasonably foreseeable risk.

Plaintiffs argue that the WTC Defendants had a duty to exercise reasonable care in order to mitigate the effects of *301fires in the Twin Towers.12 They allege that defendants knew about the fire safety defects in the Twin Towers, as evident by the Allied litigation concerning inadequate fireproofing in the construction of the buildings;13 that defendants could have reasonably foreseen crashes of airplanes into the Towers, given the near miss in 1981 of an Aerolíneas Argentinas Boeing 707 and the studies conducted during the Towers’ construction reporting that the Towers would be able to withstand an aircraft crash; that defendants were aware of numerous fires and evacuations that had occurred at the World Trade Center since its creation, including arson fires in 1975 and the 1993 terrorist-caused explosion in the garage under Tower One; and that the World Trade Center continued to be a prime target of terrorists. A finding of duty does not require a defendant to have been aware of a specific hazard. See Sanchez v. State of New York, 99 N.Y.2d 247, 754 N.Y.S.2d 621, 784 N.E.2d 675, 679-81 (2002). It is enough to have foreseen the risk of serious fires within the buildings and the goal of terrorists to attack the building.

This is a very early point in the litigation. There has been no discovery, and defendants’ motions to dismiss accept, as they must, all allegations of the complaints. I hold that the WTC Defendants owed a duty to the plaintiffs, and that plaintiffs should not be foreclosed from being able to prove that defendants failed to exercise reasonable care to provide a safe environment for its occupants and invitees with respect to reasonably foreseeable risks.

iii. Proximate and Supervening Causation

The WTC Defendants argue that even if they are held to have owed a duty to the plaintiffs and even if a jury ultimately finds that they acted negligently, their negligence was not the proximate cause of plaintiffs’ damages. This is because, they claim, the terrorist-related aircraft crashes into the Twin Towers were so extraordinary and unforeseeable as to constitute intervening and superceding causes, severing any link of causation to the WTC Defendants.

When an intervening act “is of such an extraordinary nature or so attenuates defendants’ negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant,” proximate cause is lacking. Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 449 N.E.2d 725, 729 (1983). Thus, “when such an intervening cause ‘interrupts the natural sequence of events, turns aside their course, prevents the natural and probable result of the original act or omission, and produces a different result that could not have been reasonably anticipated,’ it will prevent a recovery on account of the act or omission of the original wrongdoer.” Sheehan v. City of New York, 40 NY.2d 496, 387 N.Y.S.2d 92, 354 N.E.2d 832, 835-36 (1976) (citations omitted). The “negligence complained of must have caused the occurrence of the accident from which the injuries flow.” Rivera v. City of New York, 11 N.Y.2d 856, 227 N.Y.S.2d 676, 182 N.E.2d 284, 285 (1962).

*302Generally, an intervening intentional or criminal act severs the liability of the original tort-feasor. Kush, 462 N.Y.S.2d 831, 449 N.E.2d at 729. But that “doctrine has no application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable.” Id. In Bonsignore v. City of New York, a New York City police officer shot and seriously wounded his wife. 683 F.2d 635 (2d Cir.1982). The wife sued the City, alleging that it was negligent in failing to identify officers who were unfit to carry guns and who would likely use them without proper restraint and in inappropriate circumstances, and in not recognizing that her husband was such an officer. The City defended on the ground of independent and supervening cause, arguing that the officer’s intentional and criminal act severed any link of causation to its own alleged negligence. The Court of Appeals held in favor of the wife, ruling that since the officer’s act was precisely that which the City should reasonably have foreseen, the police officer’s intentional and criminal act was not an independent and supervening break between the City’s negligence and the plaintiffs injury. See id. at 637-38.

At this early stage of the case and in the absence of a factual record, I find that plaintiffs have pleaded sufficient facts to allege legal proximate cause. Plaintiffs allege that the WTC Defendants’ negligence was a substantial cause of their injuries, because adequate fireproofing and evacuation would have enabled many more escapes. According to plaintiffs, the terrorist acts did not merely “operate upon” the defendants’ negligence, Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666, 670 (1980); rather, the failure to provide certain safeguards caused the entrapment of many more people and the loss of many more lives. Large-scale fire was precisely the risk against which the WTC Defendants had a duty to guard and which they should have reasonably foreseen. I also decline at this stage to find that the acts of the terrorists qualify as “extraordinary” intervening cause. Kush, 462 N.Y.S.2d 831, 449 N.E.2d at 729. While the specific acts of the terrorists were certainly horrific, I cannot find that the WTC Defendants should be excused of all liability as a matter of policy and law on the record before me, especially given the plaintiffs’ allegations regarding the defendants’ knowledge of the possibility of terrorist acts, large-scale fires, and even airplane crashes at the World Trade Center. The defendants may well be able to show at a later stage in this litigation that the conduct of the terrorists “so attenuates defendants’ negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant,” Kush, 462 N.Y.S.2d 831, 449 N.E.2d at 729. Discovery will either supply evidence to substantiate or eviscerate the parties’ divergent claims about foreseeability. See Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 730 N.Y.S.2d 770, 756 N.E.2d 58, 60 (2001) (discovery necessary to determine foreseeability of an intruder’s assault within an apartment complex). At this point, however, both plaintiffs and defendants should be allowed to proceed to discovery on these issues of causation.

iv. Governmental Immunity

The Port Authority claims that it is immune from liability to the extent that the plaintiffs complain that the Port Authority was negligent in its performance of governmental functions such as planning for public safety and responding to a public emergency. The Port Authority agrees, however, that it does not enjoy a blanket immunity to suit. See N.Y. Unconsol. Laws § 7106 (2003) (“Although *303the port authority is engaged in the performance of governmental functions, the said two states [NY and NJ] consent to liability on the part of the port authority in such suits, actions or proceedings for tor-tious acts committed by it and its agents to the same extent as though it were a private corporation”). The allegations and proofs have to be parsed in order to determine whether, and to what extent, the defense of government immunity applies.

The defense of governmental immunity requires a court to scrutinize specific claims. “It is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs [governmental] liability, not whether the agency involved is engaged generally in proprietary activity or -is in control of the location .in which the injury occurred.” Weiner v. Metro. Transp. Auth., 55 N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d 124,127 (1982). The inquiry is to determine a point “along a continuum of responsibility,” one side of which may be considered as proprietary, and the other, governmental. See Miller v. State, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493, 496 (1984). “[The continuum] begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection.” Id. When a public entity acts in a proprietary capacity as a landlord, it is held to the same duty as private landlords. See id.

Miller illustrates the issue. The plaintiff, a- student at a SUNY college, was assaulted in the college dormitory by an intruder and sued the State for the university’s failure to keep doors locked and maintain adequate security. 478 N.Y.S.2d 829, 467 N.E.2d at 495. The Court of Appeals held that while the state could not be hable for failure to provide police protection, the state in its capacity as landowner had the duty to maintain minimal security measures to protect occupants against foreseeable criminal intrusions. See id. at 496.

As a landowner, the State must act as a reasonable [person] in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. Under this standard, a landlord has a duty to maintain minimal security measures, related to a specific building itself, in the face of foreseeable criminal intrusion upon tenants.

Id. at 497 (citations omitted).

Plaintiffs allege negligence by the Port Authority in a number of respects: 1) failure to design and construct the World Trade Center buildings according to safe engineering practices and to provide for safe escape routes and adequate sprinkler systems and fireproofing; 2) failure to inspect, discover, and repair unsafe and dangerous conditions, and to maintain fireproofing materials; 3) failure to develop an adequate and safe evacuation plan and emergency management plan; 4) failure to apply, interpret and/or enforce applicable building and fire safety codes, regulations and practices; and 5) instructing Tower Two occupants to remain in the building rather. than evacuate. See Plaintiffs’ Flight 11 Master Liability Complaint ¶ 85; Plaintiffs’ Flight 175 Master Liability *304Complaint ¶ 82. Based only on the pleadings and before any discovery has occurred, I have been given no basis to determine where, on the continuum between functions that are essentially proprietary and those that are essentially governmental, these various allegations should fall. It would seem, from the pleadings alone, that it would be difficult for the Port Authority to establish its defense with respect to claims of negligent design, construction, inspection, repair, maintenance, and application and enforcement of building codes, for these functions are not likely to differ from those required of private landowners. The same is true regarding allegations relating to inadequate evacuation and emergency management plans and procedures, but these allegations may touch also upon the functions of the Port Authority police force within the Twin Towers, and come closer to the governmental end of the continuum. This may be even more so for the allegation that occupants of Tower Two were told, before the crash into that Tower, to return to, and remain in, their offices, rather than evacuate. The record does not yet show who gave this instruction, whether a member of the Port Authority’s security force or some other employee, and for what reasons the instruction was given.

The Port Authority cites to cases which appear to define “governmental function” broadly. See Clinger v. New York City Trans. Auth., 85 N.Y.2d 957, 626 N.Y.S.2d 1008, 650 N.E.2d 855, 856 (1995) (immunity for injuries resulting from storage of construction materials to shield an area of attack for storage was an “overwhelmingly governmental” function); Gasset v. City of New York, 198 A.D.2d 12, 603 N.Y.S.2d 141, 142 (N.Y.App.Div.1993) (immunity to Port Authority for alleged failure to supply adequate security and prevent heavy objects from being thrown from a restricted area, causing death to plaintiffs decedent); Marilyn S. v. City of New York, 134 A.D.2d 583, 521 N.Y.S.2d 485, 486-87 (N.Y.App.Div.1987) (negligence in distributing keys enabling an intruder to rape a teacher in a restroom implicated governmental security function). But other cases are less expansive. In Crosland v. New York City Transit Authority, for example, the Transit Authority’s failure to take reasonable precautions for the safety of passengers, such as failing to summon the police during an attack, was likened to the duty owed to passengers by a common carrier, and immunity was denied. 110 A.D.2d 148, 493 N.Y.S.2d 474, 480 (N.Y.App.Div.1985). The Court ruled:

This allegation of negligence does not implicate the allocation of police resources or actions taken by the Transit Authority in its police protection capacity, functions which, ordinarily, are governmental. Rather, this allegation touches upon ownership and care relating to transportation of passengers which traditionally has been carried on through private enterprise, specifically by common carriers, and constitutes a proprietary function when performed by a governmental entity.

Id. In Rubino v. City of New York, the Board of Education was held liable for failing to warn or take other actions to address the known risk of items being thrown into the school yard from a neighboring lot. 114 A.D.2d 243, 498 N.Y.S.2d 831 (N.Y.App.Div.1986). The court ruled that the Board of Education, as any landlord, had “a duty to take such steps in the management of its property as were reasonably necessary to prevent injuries to teachers and students from such foreseeable dangers.” Id. at 835.

At this point, the Port Authority has not shown that it will prove its defense of governmental immunity as to the negli*305gence allegations made by WTC occupants.

The Port Authority argues also that it should have immunity in its capacity as operator of Newark Airport, for alleged negligence in permitting terrorists and weapons aboard United Air Lines flight 93, and for the hijacking and deaths that resulted. The Port Authority claims that it was performing a governmental function.14 Again, however, the Port Authority has not shown that it was performing a governmental function with respect to the “specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred.” Weiner, 448 N.Y.S.2d 141, 433 N.E.2d at 127. Further development of the record is required.

For the reasons stated, I deny the WTC Defendants’ motion to dismiss the complaints.

C. Boeing’s Motions to Dismiss

Some of those who were injured and the successors of those who died in the Pentagon, in American Airlines flight 77 which crashed into the Pentagon, and in United Air Lines flight 93 which crashed into the Shanksville, Pennsylvania field, claim the right to recover against Boeing, the manufacturer of the two “757” jets flown by United and American. Plaintiffs allege that Boeing manufactured inadequate and defective cockpit doors, and thus made it possible for the hijackers to invade the cockpits and take over the aircraft. Boeing moves to dismiss the lawsuits.

I hold that plaintiffs have alleged legally sufficient claims for relief under the laws applicable to the claims, Virginia and Pennsylvania, respectively. I therefore deny the motion except for certain claims, as discussed below.

i. Choice of Law

Section 408(b)(2) of the Act provides that the substantive law “shall be derived from the law, including choice of law principles, of the State in which the crash occurred unless such law is inconsistent with or preempted by Federal law,” that is, Virginia as to the claims relating to the crash of American flight 77 into the Pentagon, and Pennsylvania as to the claims relating to the crash of United flight 93 into the Shanksville field.

As discussed in Part II.A.L, Virginia conflicts law chooses the substantive law of the “place of the wrong” (lex loci delicti), and thus Virginia law must govern the claims arising from the crash of American Airlines flight 77 into the Pentagon. McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662, 664 (1979). Pennsylvania’s conflicts law chooses the substantive law of the state having the most interest in the outcome of the case. See Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 805 (1964). The parties agree that the substantive law of Pennsylvania should govern the claims arising from the crash of United flight 93 in Shanksville.

ii. Motion to Dismiss Claims Arising out of the Crash of American Airlines Flight 77

a. Background

Thus far, three individual complaints have been filed with respect to the flight 77 crash. They charge Boeing with strict tort liability and negligent design based on an unreasonably dangerous design of the *306cockpit doors. See Edwards v. American Airlines, Inc., No. 02 Civ. 9234 (brought on behalf of a decedent who was a passenger on flight 77); Powell v. Argenbright Security, Inc., No. 02 Civ. 10160 (brought on behalf of a decedent who died while working at the Pentagon); Gallop v. Ar-genbright Security, Inc., No. 03 Civ. 1016 (plaintiffs injured at the Pentagon site).

The Plaintiffs’ First Amended Flight 77 Master Liability Complaint contains three counts applicable to Boeing. Count Six alleges strict tort liability for an unreasonably dangerous design of the cockpit doors. Count Seven alleges that Boeing breached its duty of care by failing to design the cockpit doors and accompanying locks in a manner that would prevent hijackers and/or passengers from accessing the cockpit. Count Eight alleges that Boeing violated its express or implied warranty that the aircraft structure and frame, with respect to the cockpit doors, were fit for the purposes for which they were designed, intended and used.15

b. Strict liability claims

Virginia does not permit recovery on a strict liability theory in product liability cases. See Sensenbrenner v. Rust, Or-ling & Neale, Architects, Inc., 236 Va. 419, 374 S.E.2d 55, 57 n. 4 (1988). Thus, Count Six in the Flight 77 Master Complaint, and the underlying related claims in the individual complaints — Count Three in Edwards, Count Five in Powell, and Count Five in Gallop — are all dismissed.

c. Negligent design and breach of warranty claims

Boeing moves to dismiss both the claims of negligent design and breach of, warranty, arguing that it did not owe a duty to prevent the use of the plane as a weapon, and that the independent and supervening acts of the terrorists, not Boeing’s acts, caused the injuries of the plaintiffs. A plaintiff, to state a claim of negligence, must allege the existence of a legal duty, violation of that duty, and proximate causation which results in injury. Marshall v. Winston, 239 Va. 315, 389 S.E.2d 902, 904 (1990). In order to state a claim of breach of warranty, plaintiff may invoke the Virginia law of an implied warranty of merchantability, which guarantees that a product “was reasonably safe for its intended use when it was placed in the stream of commerce.” Turner v. Manning, Maxwell & Moore, Inc., 216 Va. 245, 217 S.E.2d 863, 868-69 (1975).

In order to recover under either a negligence or breach of warranty theory against a product manufacturer, “a plaintiff must show (1) that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the manufacturer’s hands.” Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 471 S.E.2d 489, 492 (1996). Thus, a manufacturer owes a duty to supply a product “fit for the ordinary purposes for which it is to be used” and safe notwithstanding a reasonably foreseeable misuse that could cause injury, Jeld-Wen, Inc. v. Gamble, 256 Va. 144, 501 S.E.2d 393, 396 (1998). However, “a manufacturer is not required to supply an accident-proof product.” Bes- *307 ser Co. v. Hansen, 243 Va. 267, 415 S.E.2d 138,144 (1992) (citation omitted).

The existence of duty in the products liability context is a question of law. “[T]he purpose of making the finding of a legal duty as a prerequisite to a finding of negligence, or breach of implied warranty, in products liability is to avoid the extension of liability for every conceivably foreseeable accident, without regard to common sense or good policy.” Jeldr-Wen, 501 S.E.2d at 396 (citations omitted). Legal duty may extend to a user of the product, as well as to its purchaser. See Morgen Indus., 471 S.E.2d at 492.

While the existence of duty is a question of law, whether a product is unreasonably dangerous is generally a question of fact, id., as is the question whether the misuse was reasonably foreseeable, Slone v. General Motors Carp., 249 Va. 520, 457 S.E.2d 51, 54 (1995). Courts have emphasized that these determinations require careful examination of the record. Compare Slone, 457 S.E.2d at 54 (ruling in favor of reasonable foreseeability), with Jeldr-Wen, 501 S.E.2d at 397 (ruling against reasonable foreseeability). In Slone v. General Motors Corp., the court held that plaintiff could proceed with a claim against a truck manufacturer. 457 S.E.2d at 54. While the plaintiff was dumping a load of gravel using the truck with a dump bed attached, the vehicle flipped backwards, crushing the truck cab and injuring the plaintiff. The court ruled that the plaintiff adequately had alleged both an unreasonably dangerous condition and a reasonably foreseeable misuse, by claiming that the design of the truck cab provided inadequate roof support and that the possibility of rollover was reasonably foreseeable by the truck manufacturer. See id. However, in Jeldr-Wen, 501 S.E.2d at 396-97, the court examined a claim brought when a child, who had gently touched a screen window that had a defective latch, fell through the open window when the screen fell out. The court distinguished the foreseeability of the screen being dislodged by the child’s touch and the foreseeability of the child’s losing his balance and falling through the open window. The court held that since the screen was not intended to support a child’s body weight and prevent the child from falling through the window, the screen manufacturer could not reasonably foresee its misuse in the manner claimed.

Boeing argues that its design of the cockpit was not unreasonably dangerous in relation to reasonably foreseeable risks, and that the risk of death to passengers and ground victims caused by a terrorist hijacking was not reasonably foreseeable. The record at this point does not support Boeing’s argument. There have been many efforts by terrorists to hijack airplanes, and too many have been successful. The practice of terrorists to blow themselves up in order to kill as many people as possible has also been prevalent. Although there have been no incidents before the ones of September 11, 2001 where terrorists combined both an airplane hijacking and a suicidal explosion, I am not able to say that the risk of crashes was not reasonably foreseeable to an airplane manufacturer. Plaintiffs have alleged that it was reasonably foreseeable that a failure to design a secure cockpit could contribute to a breaking and entering into, and a take-over of, a cockpit by hijackers or other unauthorized individuals, substantially increasing the risk of injury and death to people and damage to property. I hold that the allegation is sufficient to establish Boeing’s duty.

Boeing also argues that the regulations of the Federal Aviation Administration (“FAA”) relating to design of *308passenger airplanes did not require an impenetrable cockpit door, and thus its designs, which satisfied FAA requirements, could not be defective. However, the only support provided by Boeing for its argument is an after-the-fact FAA policy statement, issued to explain why the FAA, in 2002, was requiring airplane manufacturers to provide such doors even though the FAA previously had not done so.

Flightcrew compartment doors on transport category airplanes have been designed principally to ensure privacy, so phots could focus their entire attention to their normal and emergency flight duties. The doors have not been designed to provide an impenetrable barrier between the cabin and the flightcrew compartment. Doors have not been required to meet any significant security threat, such as small arms fire or shrapnel, or the exercise of brute force to enter the flightcrew compartment.

67 Fed.Reg. 12,820-12,824 (Mar. 19, 2002).

Boeing has not proffered the parameters that existed when it manufactured its “757” jumbo-jet airplanes that United and American flew on September 11, 2001. Boeing also has not shown the extent to which FAA regulations determined how passenger airplanes were to be constructed. Although a FAA promulgation of standards for the design and manufacture of passenger aircraft may be entitled to weight in deciding whether Boeing was negligent, see, e.g., Curtin v. Port Auth. of N.Y. and N.J., 183 F.Supp.2d 664, 671 (S.D.N.Y.2002) (concluding that the standard of care with respect to aircraft evacuation procedures is a matter of federal, not state, law), statements by the FAA characterizing what its former regulations required does not dictate the totality of the duty owed by aircraft manufacturers. Boeing’s argument is not sufficient to support its motion to dismiss the complaints against it.

d. Proximate Causation

Boeing next argues that its design of the cockpit doors on its “757” passenger aircraft, even if held to constitute an “unreasonably dangerous condition,” was not the proximate cause of plaintiffs’ injuries. Boeing argues that the criminal acts of the terrorists in hijacking the airplanes and using the airplanes as weapons of mass destruction constituted an “efficient intervening cause” which broke the “natural and continuous sequence” of events flowing from Boeing’s allegedly inadequate design. See Sugarland Run Homeowners Ass’n v. Halfmann, 260 Va. 366, 535 S.E.2d 469, 472 (2000) (a “proximate cause of an event is that ‘act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would not have occurred,’ ” quoting Beale v. Jones, 210 Va. 519, 171 S.E.2d 851, 853 (1970)). Plaintiffs have the burden to prove proximate cause and, generally, the issue is a question of fact to be resolved by a jury. Sugarland, 535 S.E.2d at 472. However, when reasonable people cannot differ, the issue becomes a question of law for the court. Id.

The record at this point does not support Boeing’s argument that the invasion and take-over of the cockpit by the terrorists must, as a matter of law, be held to constitute an “efficient intervening act” that breaks the “natural and continuous sequence” flowing from Boeing’s allegedly inadequate design. Plaintiffs allege that Boeing should have designed its cockpit door to prevent hijackers from invading the cockpit, that acts of terrorism, including hijackings of airplanes, were reasonably foreseeable, and that the fives of passengers, crew and ground victims would be *309imminently in danger from such hijackings. Virginia law does not require Boeing to have foreseen precisely how the injuries suffered on September 11, 2001 would be caused, as long as Boeing could reasonably have foreseen that “some injury” from its negligence “might probably result.” See Blondel v. Hays, 241 Va. 467, 403 S.E.2d 340, 344 (1991) (“[A] reasonably prudent [person] ought under the circumstances to have foreseen that some injury might probably result from that negligence”). Given the critical nature of the cockpit area, and the inherent danger of crash when a plane is in flight, one cannot say that Boeing could not reasonably have foreseen the risk flowing from an inadequately constructed cockpit door.

Boeing relies heavily on Baltimore & Ohio Railroad Co. v. Patterson, 204 Va. 81, 129 S.E.2d 1 (1963), to support its argument that proximate causation was broken by an “efficient intervening cause.” The case, however, is distinguishable. The railroad had been using a certain type of switch for more than forty years. While a long freight train was stopped, with eight cars having passed over the switch and the balance of 61 freight cars still on the other side, a six-year old boy living at the side of the track surreptitiously came onto the tracks and threw the switch. When the train resumed its movement, a number of cars derailed, causing property damage to adjoining properties. The Virginia Supreme Court reversed the verdict for the plaintiff, holding that the railroad reasonably could not have foreseen the occurrence. The switch was of a standard type in use for more than forty years; it was used throughout the railroad’s extensive system, and at the location in issue; it had consistently been operated in an identical manner for the forty years; the switch had never before been tampered with; and the railroad crew had not been negligent in monitoring the child or the tampered switch. The court held that an imposition of liability on the railroad would be unreasonable, for it would require the railroad to station employees at or near all its switches. Id. at 12-13. The court ruled also that the boy’s criminal conduct, not reasonably being foreseen by the railroad, constituted an independent and proximate cause of the adjoining property owner’s damage. In contrast, the danger that a plane could crash if unauthorized individuals invaded and took over the cockpit was the very risk that Boeing should reasonably have foreseen. “Privacy” within a cockpit means very little if the door intended to provide security is not designed to keep out potential intruders.

Boeing’s citation to cases in other jurisdictions are also distinguishable. Two of the cases, Port Authority ofN.Y. and N.J. v. Arcadian Corp., 189 F.3d 305 (3d Cir. 1999), and Gaines-Tabb v. ICI Explosives USA Inc., 160 F.3d 613 (10th Cir.1998), have already been discussed in Part II. A.iii. of this opinion with respect to the issue of duty. The courts of appeals in both cases addressed the question of causation and held that defendants’ actions or inactions were not the “legal proximate cause” of the injuries suffered by the victims of the 1993 World Trade Center and 1995 Oklahoma City bombings. They ruled that the manufacturers of the fertilizer products utilized in the attacks, having made lawful and economically and socially useful fertilizer products, did not have to anticipate that criminals would misappropriate ingredients, mix them with others, and make bombs to bring down a building. The bomb-making by the terrorists were found to be superseding and intervening events and were not natural or probable consequences of any design defect in defendants’ products. See Arcadian Corp., 189 F.3d at 318; Gaines-Tabb, 160 F.3d at 621.

*310 In re Korean Air Lines Disaster of September 1, 1983, No. 83-3442, 1985 WL 9447, 1985 U.S. Dist. LEXIS 17211 (D.D.C.1985), involved lawsuits by the legal successors of passengers who died when Korean Airlines passenger flight 007 was shot down by Russian fighter planes. The passenger plane had flown off course and over a sensitive military zone in Russia. Russian fighter pilots intercepted the plane and, instead of following international protocol for causing the plane to return to international routes over the high seas or to land at a selected landing field, shot it down. Plaintiffs sued Boeing, the manufacturer of the airplane, alleging that a product defect in its navigation systems caused it to fly off course and over Soviet territory, and that Boeing’s improper and unsafe design was therefore the proximate cause of plaintiffs’ damages. The court dismissed the complaint, holding that Boeing could not foresee that the Soviet Union would destroy an intruding aircraft in violation of international conventions, and had no ability to guard against such conduct. See id., 1985 WL 9447, **5-6, 1985 U.S. Dist. LEXIS 17211, at *17-20. The court held, consequently, that Boeing did not owe a duty to passengers with respect to such risks, and that the actions of the Russian pilots were independent and supervening causes that broke the chain of causation.

These three cases do not offer Boeing much support in its motion. In each, the acts of the third-parties were held to be superseding causes because they were not reasonably foreseeable to the product manufacturer. In Gaines-Tabb and Arcadian, the courts of appeals held that the fertilizer manufacturers could not reasonably foresee that terrorists would mix their products with other ingredients to create explosives to cause buildings to collapse and occupants to be killed. In KAL, the court held that the manufacturer of airplane navigational systems could not reasonably foresee that a passenger aircraft that strayed off course would be shot down by hostile military forces in violation of international conventions. In the cases before me, however, plaintiffs allege that Boeing could reasonably have foreseen that terrorists would try to invade the cockpits of airplanes, and that easy success on their part, because cockpit doors were not designed to prevent easy opening, would be imminently dangerous to passengers, crew and ground victims. Plaintiffs’ allegations that duty and proximate cause existed cannot be dismissed as a matter of law on the basis of the record now before me.

Accordingly, I deny Boeing’s motion to dismiss the complaints against it arising from the crash of flight 77 into the Pentagon.

iii. Motion to Dismiss Claims Arising out of the Crash of United Air Lines Flight 93

a. Background

The successors of the passengers who died in the crash of United Air Lines flight 93 in Shanksville have filed four lawsuits: Burnett v. Argenbright, 02 Civ. 6168; Lyles v. Argenbright, 02 Civ. 7243; Cash-man v. Argenbright, 02 Civ. 7608; and Driscoll v. Argenbright, 02 Civ. 7912. Their allegations are encapsulated in Plaintiffs’ Flight 93 Master Liability Complaint, which mirrors the Plaintiffs’ First Amended Flight 77 Master Liability Complaint. The Flight 93 Master Complaint alleges claims against Boeing based on strict tort liability, for an unreasonably dangerous design of the cockpit doors (Count Five); negligence, for failure to design cockpit doors and accompanying locks in a manner that would prevent hijackers and/or passengers from accessing *311the cockpit (Count Six); and express or implied warranty, for creating a product that was unfit for the purposes for which it was designed, intended and used (Count Seven).16

b. Strict tort liability and breach of warranty claims

Under Pennsylvania law, following section 402A of the Restatement (Second) of Torts, a plaintiff pressing a product liability or strict tort liability claim must allege and prove that the product was defective, that the defect existed when it left the defendant, and that the defect proximately caused the harm. See Weiner v. American Honda Motor Co. Inc., 718 A.2d 305, 807 (Pa.Super.1998). The elements of breach of warranty and strict product liability are the same. Cucchi v. Rollins Protective Sews. Co., 377 Pa.Super. 9, 546 A.2d 1131, 1136 (1998), rev’d on other grounds, 524 Pa. 514, 574 A.2d 565 (1990).

“The question of whether a product is unreasonably dangerous is a question of law. In answering this question a court is essentially making a social policy determination and acting as both a social philosopher and a risk-utility economic analyst.” Riley v. Warren Mfg., Inc., 455 Pa.Super. 384, 688 A.2d 221, 224 (1997). Courts must weigh factors such as “the gravity of the danger posed by the challenged design; the likelihood that such danger would occur; the mechanical feasibility of a safer design; and the adverse consequences to the product and to the consumer that would result from a safer design.” Id. at 225. Manufacturers are held strictly liable for product defects because they “market their product for use and because they have a better opportunity to control the defect.” Id. at 228. “The focus is on the nature of the product and the consumer’s reasonable expectations with regard to the product.” Id.

Within the risk-utility analysis, courts must examine if the product was safe for its intended use. “A product is defective when it is not safe for its intended use ... a manufacturer is entitled to believe that the product will be used in its usual manner, and need not be the insurer for the extraordinary risks an operator might choose to take.” Weiner, 718 A.2d at 308 (citations omitted). See also Schindler v. Sofamor, Inc., 774 A.2d 765, 772 (Pa.Super.2001). The use must also be by one who is an intended user. Hittle v. Scripto-Tokai Corp., 166 F.Supp.2d 159, 167 (M.D.Pa.2001). But see Phillips v. Cricket Lighters, 773 A.2d 802 (Pa.Super.2001), review granted, 567 Pa. 763, 790 A.2d 1018 (2001) (rejecting the “intended user” requirement and finding defect when a child started a fire using a butane light, even though the child could not properly be considered an “intended user”).

Because the decision of whether the product was unreasonably dangerous and unsafe for its intended use is a question of law, Boeing argues that the judge should not be influenced by conclusory allegations of the complaint. The reason, Boeing argues, is that “the trial court is not bound by any party’s legal conclusions as to the intended purpose of a product, even if those conclusions are couched as aver-ments of fact or presented as expert evidence. To hold otherwise would force trial courts (and reviewing courts) to accept unrealistic, generalized or distorted views of the product’s purpose simply because *312they are presented as factual evidence.” Schindler, 774 A.2d at 773.

But this is not the situation in the case before me. The cockpit door, like any door, is intended as a separation, a “movable barrier of wood or other material, consisting either of one piece, or of several pieces framed together, usually turning on hinges or sliding in a groove, and serving to close or open a passage into a building, room, etc.” Oxford English Dictionary (2d ed.1999). A door may be fitted with, and without, locks, depending on who may be allowed to enter and in what circumstances. The intended users of a door, and in particular a locked door, are those within, in order to assure their privacy, and possibly those without who may have an interest in allowing those within to perform their jobs without unwanted intrusion.

Boeing asks me to hold that since the terrorists who hijacked the airplanes were not the intended users of the cockpit doors, one cannot say that the doors were unreasonably dangerous or unsafe in relation to the use that terrorists would be expected to make of the doors. Clearly, however, the intended users of the cockpit doors were not the terrorists who broke through them, but the pilots who had the right to protection from unwanted intrusion, and the passengers who had the right to believe that the pilots could continue to guide the plane, free from intrusion, to ensure their, safe arrival at their intended destination. If, as Boeing argues, a person who breaks through a door is considered to be an unintended user, no manufacturer of a door and lock system could ever be liable. The intended user of a door is the person who wishes it to be closed and stay closed, not the person who can easily force it open. The pilots and passengers are not mere “casual bystanders,” but people with a vital stake in the door’s performing its intended purpose. See Restatement (Second) Torts § 402A, Comments (l) and (o) (intended users include “those who are passively enjoying the benefit of the product, as in the case of passengers in automobiles or airplanes .... casual bystanders, and others who may come in contact with the product, as in the case of employees of the retailer, or a passer-by injured by an exploding bottle, or a pedestrian hit by an automobile have been denied recovery”).17

Boeing may be able to show that the cockpit doors were not unreasonably dangerous, and that it was not unreasonable to design them to provide privacy without making them impenetrable. At this point, it would be inappropriate for a judge to make this determination. The record will have to be developed to show if the cockpit doors, incapable of keeping out unwanted intruders, were unreasonably dangerous, taking into consideration: 1) the gravity of the danger posed by the design; 2) the likelihood that the danger would occur; 3) the feasibility of a safer design; 4) the adverse consequences to the product and to the consumer that would result from a safer design; 5) the usefulness and desirability of the product; 6) the likelihood that the product will cause injury and the probable seriousness of the injury; 7) the availability of a substitute product which meets the same needs and is not unsafe; 8) the manufacturer’s ability to eliminate the unsafe character of the product without impairing usefulness or making the product too expensive; 9) the user’s ability to avoid danger by the exercise of care in the use of the product; 10) the user’s anticipated awareness of the *313dangers inherent in the product and their avoidability; and 11) the ability of the manufacturer to spread loss through price-setting or insurance coverage. See Schindler, 774 A.2d at 772; Riley, 688 A.2d at 225.

In order to prevail on their strict liability and breach of warranty claims, the plaintiffs must also show that the defect was the proximate cause for the injuries; this will be discussed in the negligent design analysis below. Weiner, 718 A.2d at 307.

c. Negligent design claims

Boeing argues that the plaintiffs’ negligent design claims must be dismissed because it did not owe a duty of care to the plaintiffs, and because its alleged negligence was not the proximate cause of plaintiffs’ damages. The elements of a claim of negligence are: the existence of a duty to plaintiffs; the breach of that duty; a causal relationship between the breach and the resulting injury; and actual loss by the plaintiff. See Brisbine v. Outside In School, 2002 PA Super 138, 799 A.2d 89, 93 (2002) (citation omitted). Because Pennsylvania and Virginia law do not appear to differ significantly, the analysis is similar to that for Flight 77.

Duty is “imposed on all persons not to place others at risk of harm through their actions. The scope of this duty is limited, however, to those risks which are reasonably foreseeable by the actor in the circumstances of the case.” J.E.J. v. Tri-County Big Brothers/Big Sisters, Inc., 692 A.2d 582, 584 (1997) (citation omitted). “In the context of duty, the concept of foreseeability means the likelihood of the occurrence of a general type of risk rather than the likelihood of the occurrence of the precise chain of events leading to the injury.” Huddleston v. Infertility Ctr. of Am., Inc., 700 A.2d 453, 460 (Pa.Super.1997) (citation omitted). Plaintiffs have alleged that Boeing reasonably should have foreseen that a negligently designed cockpit door, permitting unauthorized individuals to enter the cockpit, would lead to risk of injury or death. For the same reasons as I have discussed previously, Boeing’s motion to dismiss based on the absence of a duty of care to plaintiffs is denied.

To determine whether proximate cause exists, “the court must determine whether the injury would have been foreseen by an ordinary person as the natural and probable outcome of the act complained of.” Reilly v. Tiergarten Inc., 430 Pa.Super. 10, 633 A.2d 208, 210 (1993). The existence of a concurring cause responsible for producing injury does not relieve a defendant of liability, if “a jury could reasonably believe that a defendant’s actions were a substantial factor in bringing about the harm.” Powell v. Drumheller, 539 Pa. 484, 653 A.2d 619, 622 (1995). “Among the factors to consider in determining whether a subsequent force is an intervening or superseding cause are whether the force is operating independently of any situation created by the first actor’s negligence and whether it is a normal result of that situation.” Rabutino v. Freedom State Realty Co. Inc., 809 A.2d 933, 942 (Pa.Super.2002). Plaintiffs allege that without defendant’s negligence, the hijackers would not have been able to intrude into the cockpit and take over the airplane. Again, for the reasons previously discussed, the terrorists’ unauthorized entry into the cockpit was not unforeseeable, and did not constitute an “intervening” or “superseding” cause that could, as a matter of law, break the chain of causation.

*314Accordingly, I deny Boeing’s motion to dismiss the complaints against it arising from the crash of flight 93 into Shanksville.

III. Conclusion

For the reasons stated, the motions to dismiss the complaints by the Aviation Defendants and the WTC Defendants are denied. The motion of Boeing to dismiss Counts Four and Six in the Flight 77 Master Complaint, Count Four in the Flight 93 Master Complaint, Count Three in Edwards v. American Airlines, Inc., No. 02 Civ. 9234, Count Five in Powell v. Argenbright Security, Inc., No. 02 Civ. 10160, and Count Five in Gallop v. Argenbright Security, Inc., No. 03 Civ. 1016, is granted; the remainder of the motion is denied.

By this decision, substantially all preliminary matters have been resolved, with the exception of the Port Authority’s motion to dismiss Mayors Estates LLC, 02 Civ. 7198(AKH). We are now ready to proceed with the discovery stages of the lawsuits. To this end, I will meet with all counsel for case management purposes on September 26, 2003, at 9:30 a.m., in Courtroom 14D, 500 Pearl Street, New York, N.Y. 10007. Liaison Counsel shall submit a proposed agenda by September 24, 2003.

SO ORDERED.