Cardozo, J.

The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car, it suddenly collapsed. He was *385thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully concealed it. The case, in other words, is not brought within the rule of Kuelling v. Lean Mfg. Co. (183 N. Y. 78). The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser.

The foundations of this branch of the law, at least in this state, were laid in Thomas v. Winchester (6 N. Y. 397). A poison was falsely labeled. The sale was made to a druggist, who in turn sold to a customer. The customer recovered damages from the seller who affixed the label. “The defendant’s negligence,” it was said, “put human life in imminent danger.” A poison falsely labeled is likely to injure any one who gets it. Because the danger is to be foreseen, there is a duty to avoid the injury. Cases were cited by way of illustration in which manufacturers were not subject to any duty irrespective of contract. The distinction was said to be that their conduct, though negligent, was not likely to result in injury to any one except the purchaser. We are not required to say whether the chance of injury was always as remote as the distinction assumes. Some of the illustrations might be rejected to-day. The principle of the distinction is for present purposes the important thing.

Thomas v. Winchester became quickly a landmark of the law. In the application of its principle there may at times have been uncertainty or even error. There has never in this state been doubt or disavowal of the principle itself. The chief cases are well known, yet to recall *386some of them will he helpful. Loop v. Litchfield (42 N. Y. 351) is the earliest. It was the case of a defect in a small balance wheel used on a circular saw. The manufacturer pointed out the defect to the buyer, who wished a cheap article and was ready to assume the risk. The risk can hardly have been an imminent one, for the wheel lasted five years before it broke. In the meanwhile the buyer had made a lease of the machinery. It was held that thti manufacturer was not answerable to the lessee. Loop v. Litchfield was followed in Losee v. Clute (51 N. Y. 494), the case of the explosion of a steam boiler. That decision has been criticised (Thompson on Negligence, 233; Shearman & Redfield on Negligence [6th ed.], § 117); but it must be confined to its special facts. It was put upon the ground that the risk of injury was too remote. The buyer in that case had not only accepted the boiler, hut had tested it. The manufacturer knew that his own test was not the final one. The finality of the test has a bearing on the measure of diligence owing to persons other than the purchaser (Beven, Negligence [3d ed.], pp. 50, 51, 54; Wharton, Negligence [2d ed.], § 134).

These early cases suggest a narrow construction of the rule. Later cases, however, evince a more liberal spirit. First in importance is Devlin v. Smith (89 N. Y. 470). The defendant, a contractor, built a scaffold for a painter. The painter’s servants were injured. The contractor was held liable: He knew that the scaffold, if improperly constructed, was a most dangerous trap. He knew that it was to he used by the workmen. He was building it for that very purpose. Building it for their use, he owed them a duty, irrespective of his contract with their master, to build it with care.

From Devlin v. Smith we pass over intermediate cases and turn to the latest case in this court in which Thomas v. Winchester was followed. That case is Statler v. Ray Mfg. Co. (195 N. Y. 478, 480). The defendant *387manufactured a large coffee urn. It was installed in a restaurant. When heated, the urn exploded and injured the plaintiff. W e held that the manufacturer was liable. We said that the urn “was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed.” It may be that Devlin v. Smith and Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons — things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin v. Smith, supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co., supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (Torgeson v. Schultz, 192 N. Y. 156). We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke v. Ireland (26 App. Div. 487), in an opinion by Cullen, J., it was applied to a builder who constructed a defective building; in Kahner v. Otis Elevator Co. (96 App. Div. 169) to the manufacturer of an elevator; in Davies v. Pelham Hod Elevating Co. (65 Hun, 573; affirmed in this court without opinion, 146 N. Y. 363) to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought.

*388 Devlin v. Smith was decided in 1882. A year later a very similar case came before the Court of Appeal in England (Heaven v. Pender, L. B. [11 Q. B. D.] 503). We find in the opinion of Brett, M. B., afterwards Lord Esher (p. 510), the same conception of a duty, irrespective of contract, imposed upon the manufacturer by the law itself: “Whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing.” He then points out that for a neglect of such ordinary care or skill whereby injury happens, the appropriate remedy is an action for negligence. The right to enforce this liability is not to be confined to the immediate buyer. The right, he says, extends to the persons or class of persons for whose use the thing is supplied. It is enough that the goods “would in all probability be used at once * * * before a reasonable opportunity for discovering any defect which might exist,” and that the thing supplied is of such a nature “that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it.” On the other hand, he would exclude a case “in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not; or whether they would be used before there would probably be means of observing any defect,” or where the goods are of such a nature that “a want of care or skill as to their condition or the manner 'of supplying them would not probably *389produce danger of injury to person or property.” What was said by Lord Esher in that case did not command the full assent of his associates. His opinion has been criticised “as requiring every man to take affirmative precautions to protect his neighbors as well as to refrain from injuring them” (Bohlen, Affirmative Obligations in the Law of Torts, 44 Am. Law Reg. [N. S.] 341). It may not be an accurate exposition of the law of England. Perhaps it may need some qualification even in our own state. Like most attempts at comprehensive definition, it may involve errors of inclusion and of exclusion. But its tests and standards, at least in their underlying principles, with whatever qualification may be called for as they are applied to varying conditions, are the tests and standards of our law.

We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will housed by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will he shared by others than the buyer. Such knowledge may often be *390inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow. We are not required at this time to say that it is legitimate to go back of the manufacturer of the finished product and hold the manufacturers of the component parts. To make their negligence a cause of imminent danger, an independent cause must often intervene; the manufacturer of the finished product must also fail in his duty of inspection. It may be that in those circumstances the negligence of the earlier members of the series is too remote to constitute, as to the ultimate user, an actionable wrong (Beven on Negligence [3d ed.], 50, 51, 51; Wharton on Negligence [2d ed.], § 134; Leeds v. N. Y. Tel. Co., 178 N. Y. 118; Sweet v. Perkins, 196 N. Y. 482; Hayes v. Hyde Park, 153 Mass. 511, 516). We leave that question open. We shall have to deal with it when it arises. The difficulty which it suggests is not present in this case. There is here no break in the chain of cause and effect. In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.

From this survey of the decisions, there thus emerges a definition of the duty of a manufacturer which enables us to measure this defendant’s liability. Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This *391automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by persons other than the buyer. This was apparent from its size; there were seats for three persons. It was apparent also from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin v. Smith supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.

In reaching this conclusion, we do not ignore the decisions to the contrary in other jurisdictions. It was held in Cadillac M. C. Co. v. Johnson (221 Fed. Rep. 801) that an automobile is not within the rule of Thomas v. Winchester. There was, however, a vigorous dissent. Opposed to that decision is one of the Court of Appeals of Kentucky (Olds Motor Works v. Shaffer, 145 Ky. 616). The earlier cases are summarized by Judge Sanborn in Huset v. J. I. Case Threshing Machine Co. (120 Fed. Rep. 865). Some of them, at first sight inconsistent with our conclusion, may be reconciled upon the ground that the negligence was too remote, and that another cause had intervened. But even when they cannot be reconciled, the difference is rather in the applica*392tion of the principle than in the principle itself. Judge Sanborn says, for example, that the contractor who builds a bridge, or the manufacturer who builds a car, cannot ordinarily foresee injury to other persons than the owner as the probable result (120 Fed. Rep. 865, at p. 867). We take a different view. We think that injury to others is to be foreseen not merely as a possible, but as an almost inevitable result. (See the trenchant criticism in Bohlen, supra, at p. 351). Indeed, Judge Sanborn concedes that his view is not to be reconciled with our decision in Devlin v. Smith (supra). The doctrine of that decision has now become the settled law of this state, and we have no desire to depart from it.

In England the limits of the rule are still unsettled. Winterbottom v. Wright (10 M. & W. 109) is often cited. The defendant undertook to provide a mail coach to carry the mail bags. The coach broke down from latent defects in its construction. The defendant, however, was not the manufacturer. The court held that he was not liable for injuries to a passenger. The case was decided on a demurrer to the declaration. Lord Esher points out in Heaven v. Pender (supra, at p. 513) that the form of the declaration was subject to criticism. It did not fairly suggest the existence of a duty aside from the special contract which was the plaintiff’s main reliance. (See the criticism of Winterbottom v. Wright, in Bohlen, supra, at pp. 281, 283). At all events, in Heaven v. Pender (supra) the defendant, a dock owner, who put up a staging outside a ship, was held liable to the servants of the shipowner. In Elliott v. Hall (15 Q. B. D. 315) the defendant sent out a defective truck laden with goods which he had sold. The buyer’s servants unloaded it, and were injured because of the defects. It was held that the defendant was under a duty “not to he guilty of negligence with regard to the state and condition of the truck.” There seems to have been a *393return to the doctrine of Winterbottom v. Wright in Earl v. Lubbock (L. B. [1905] 1 K. B. 253). In that case, however, as in the earlier one, the defendant was not the manufacturer. He had merely made a contract to keep the van in repair. A later case (White v. Steadman, L. R. [1913], 3 K. B. 340, 348) emphasizes that element. A livery stable keeper who sent out a vicious horse was held liable not merely to his customer but also to another occupant of the carriage, and Thomas v. Winchester was cited and followed (White v. Steadman, supra, at pp. 348, 349). It was again cited and followed in Dominion Natural Gas Co. v. Collins (L. R. [1909] A. C. 640, 646). From these cases a consistent principle is with difficulty extracted. The English courts, however, agree with ours in holding that one who invites another to make use of an appliance is bound to the exercise of reasonable care (Caledonian Ry. Co. v. Mulholland, L. R. [1898] A. C. 216, 227; Indermaurv. Dames, L. R. [1 C. P.] 274). That at bottom is the underlying principle of Devlin v. Smith. The contractor who builds the scaffold invites the owner’s workmen to use it. The manufacturer who sells the automobile to the retail dealer invites the dealer’s customers to use it. The invitation is addressed in the one case to determinate persons and in the other to an indeterminate class, but in each case it is equally plain, and in each its consequences must be the same.

There is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use. We may find an analogy in the law which measures the liability of landlords. If A leases to B a tumbledown house he is not liable, in the absence of fraud, to B’s guests who enter it and are injured. This is because B is then under the duty to repair it, the lessor has the right to suppose that he will fulfill that duty, and, if he *394omits to do so, his guests must look to him (Bohlen, supra, at p. 276). But if A leases a building to be used by the lessee at once as a place of public entertainment, the rule is different. There injury to persons other than the lessee is to be foreseen, and foresight of the consequences involves the creation of a duty (Junhermann v. Tilyou R. Co., 213 N. Y. 404, and cases there cited).

In this view of the defendant’s liability there is nothing inconsistent with the theory of liability on which the case was tried. It is true that the court told the jury that “an automobile is not an inherently dangerous vehicle.” The meaning, however, is made plain by the context. The meaning is that danger is not to be expected when the vehicle is well constructed. The court left it to the jury to say whether the defendant ought to have foreseen that the car, if negligently constructed, would become “imminently dangerous.” Subtle distinctions are drawn by the defendant between things inherently dangerous and things imminently dangerous, but the case does not turn upon these verbal niceties. If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent. In varying forms that thought was put before the jury. We do not say that “the court would not have been justified in ruling as a matter of law that the car was a dangerous thing. If there was any error, it was none of which the defendant can complain.

We think the defendant was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer. It was not merely a dealer in automobiles. It was a manufacturer of automobiles. It was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple tests (Richmond & Danville R. R. Co. v. Elliott, 149 U. S. 266, 272). Under the charge of the trial judge nothing more was *395required of it. The obligation to inspect must vary with the nature of the thing to be inspected. The more probable the danger, the greater the need of caution. There is little analogy between this case and Carlson v. Phoenix Bridge Co. (132 N. Y. 273), where the defendant bought a tool for a servant’s use. The making of tools was not the business in which the master was engaged. Reliance on the skill of the manufacturer was proper and almost inevitable. But that is not the defendant’s situation. Both by its relation to the work and by the nature of its business, it is charged with a stricter duty.

Other rulings complained of have been considered, but no error has been found in them.

The judgment should be affirmed with costs.

Willard Bartlett, Ch. J. (dissenting).

The plaintiff was injured in consequence of the collapse of a wheel of an automobile manufactured by the defendant corporation which sold it to a firm of automobile dealers in Schenectady, who in turn sold the car to the plaintiff. The wheel was purchased by the Buick Motor Company, ready made, from the Imperial Wheel Company of Flint, Michigan, a reputable manufacturer of automobile wheels which had furnished the defendant with eighty thousand wheels, none of which had proved to be made of defective wood prior to the accident in the present case. The defendant relied upon the wheel manufacturer to make all necessary tests as to the strength of the material therein and made no such tests itself. The present suit is an action for negligence brought by the subvendee of the motor car against the manufacturer as the original vendor. The evidence warranted a finding by the jury that the wheel which collapsed was defective when it left the hands of the defendant. The automobile was being prudently operated at the time of the accident and was moving at a speed of only eight miles an hour. There was *396no allegation or proof of any actual knowledge of the defect on the part of the defendant or any suggestion that any element of fraud or deceit or misrepresentation entered into the sale.

The theory upon which the case was submitted to the jury by the learned judge who presided at the trial was that, although an automobile is not an inherently dangerous vehicle, it may become such if equipped with a weak wheel; and "that if the motor car in question, when it was put upon the market was in itself inherently dangerous by reason of its being equipped with a weak wheel, the 'defendant was chargeable with a knowledge of the defect so far as it might be discovered by a reasom able inspection and the application of reasonable tests. This liability, it was further held, was not limited to the original vendee, but extended to a subvendee like the plaintiff, who was not a party to the original contract of sale.

I think that these rulings, which have been approved by the Appellate Division, extend the liability of the vendor of a manufactured article further than any case which has yet received the sanction of this court. It has heretofore been held in this state that the liability of the vendor of a manufactured article for negligence arising out of the existence of defects therein does not extend to strangers injured in consequence of such defects but is confined to the immediate vendee. The exceptions to this general rule which have thus far been recognized in New York are cases in which the article sold was of such a character that danger to life or limb was involved in the ordinary use thereof; in other words, where the article sold was inherently dangerous. As has already been pointed out, the learned trial judge instructed the jury that an automobile is not an inherently dangerous vehicle.

The late Chief Justice Cooley of Michigan, one of the most learned and accurate of American law writers, *397states the general rule thus: “The general rule is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of such article.” (2 Cooley on Torts [3d ed.], I486.)

The leading English authority in support of this rule, to which all the later cases on the same subject refer, is Winterbottom v. Wright (10 Meeson & Welsby, 109), which was an action by the driver of a stage coach against a contractor who had agreed with the postmaster-general to provide and keep the vehicle in repair for the purpose of conveying the royal mail over a prescribed route. The coach broke down and upset, injuring the driver, who sought to recover against the contractor on account of its defective construction. The Court of Exchequer denied him any right of recovery on the ground that there was no privity of contract between the parties, the agreement having been made with the postmaster-general alone. i£If the plaintiff can sue,” said Lord Abinger, the Chief Baron, “every passenger or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who enter into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.”

The doctrine of that decision was recognized as the law of this state by the leading New York case of Thomas v. Winchester (6 N. Y. 397, 408), which, however, involved an exception to the general rule. There the defendant, who was a dealer in medicines, sold to a druggist a quantity of belladonna, which is a deadly poison, negligently labeled as extract of dandelion. The druggist in good faith used the poison in filling a prescription calling for the harmless dandelion extract and the plaintiff for whom the prescription was put up was poisoned by the *398belladonna. This court held that the original vendor was liable for the injuries suffered by the patient. Chief Judge Ruggles, who delivered the opinion of the court, distinguished between an act of negligence imminently dangerous to the lives of others and one that is not so, saying: “If A. build a wagon and sell it to B., who sells it to C. and C. hires it to D., who in consequence of the gross negligence of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the builder. A.’s obligation to build the wagon faithfully, arises solely out of his contract with B. The public have nothing to do with it. * * * So, for the same reason, if a horse be defectively shod by a smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith’s negligence in shoeing; the smith is not liable for the injury. ”

In Torgeson v. Schultz (192 N. Y. 156, 159) the defendant was the vendor of bottles of aerated water which were charged under high pressure and likely to explode unless used with precaution when exposed to sudden changes of temperature. The plaintiff, who was a servant of the purchaser, was injured by the explosion of one of these bottles. There was evidence tending to show that it had not been properly tested in order to insure users against such accidents. We held that the defendant corporation was liable notwithstanding the absence of any contract relation between it and the plaintiff “under the doctrine of Thomas v. Winchester (supra), and similar cases based upon the duty of the vendor of an article dangerous in its nature, or likely to become so in the course of the ordinary usage to be contemplated by the vendor, either to exercise due care to warn users of the danger or to take reasonable care to present the article sold from proving dangerous when subjected only to customary usage.” The character of the exception to the general rule limiting liability for negligence to the original parties to the contract of sale, was still more clearly stated by Judge *399Hiscock, writing for the court in Statler v. Ray Manufacturing Co. (195 N. Y. 478, 482), where he said that “in the case of an article of an inherently dangerous nature, a manufacturer may become liable for a negligent construction which, when added to the inherent character of the appliance, makes it imminently dangerous, and causes or contributes to a resulting injury not necessarily incident to the use of such an article if properly constructed, but naturally following from a defective construction.” In that case the injuries were inflicted by the explosion of a battery of steam-driven coffee urns, constituting an appliance liable to become dangerous in the course of ordinary usage.

The case of Devlin v. Smith (89 N. Y. 470) is cited as an authority in conflict with the view that the liability of the manufacturer and vendor extends to third parties only when the article manufactured and sold is inherently dangerous. In that case the builder of a scaffold ninety feet high which was erected for the purpose of enabling painters to stand upon it, was held to be liable to the administratrix of a painter who fell therefrom and was killed, being at the time in the employ of the person for whom the scaffold was built. It is said that the scaffold if properly constructed was not inherently dangerous; and hence that this decision affirms the existence of liability in the case of an article not dangerous in itself but made so only in consequence of negligent construction. Whatever logical force there may be in this view it seems to me clear from the language of Judge Rapallo, who wrote the opinion of the court, that the scaffold was deemed to be an inherently dangerous structure; and that the case was decided as it was because the court entertained that view. Otherwise he would hardly have said, as he did, that the circumstances seemed to bring the case fairly within the principle of Thomas v. Winchester.

I do not see how we can uphold the judgment in the *400present case without overruling what has been so often said by this court and other courts of like authority in reference to the absence of any liability for negligence on the part of the original vendor of an ordinary carriage to any one except his immediate vendee. The absence of such liability was the very point actually decided in the English case of Winterbottom v. Wright (supra), and the illustration quoted from the opinion of Chief Judge Ruggles in Thomas v. Winchester (supra) assumes that the law on the subject was so plain that the statement would be accepted almost as a matter of course. In the case at bar the defective wheel on an automobile moving only eight iniles an hour was not any more dangerous to the occupants of the car than a similarly defective wheel would be to the occupants of a carriage drawn by a horse at the same speed; and yet unless the courts have been all wrong on this question up to the present time there would be no liability to strangers to the original sale in the case of the horse-drawn carriage.

The rule upon which, in my judgment, the determination of this case depends, and the recognized exceptions thereto, were discussed by Circuit Judge Sanborn of the United States Circuit Court of Appeals in the Eighth Circuit, in Huset v. J. I. Case Threshing Machine Co. (120 Fed. Rep. 865) in an opinion which reviews all the leading American and English decisions on the subject up to the time when it was rendered (1903). I have already discussed the leading New York cases, but as to the rest I feel that I can add nothing to the learning of that opinion or the cogency of its reasoning. I have examined the cases to which Judge Sanborn refers, but if I were to discuss them at length I should be forced merely to paraphrase his language, as a study of the authorities he cites has led me to the same conclusion; and the repetition of what has already been so well said would contribute nothing to the advantage of the bench, the bar or the individual litigants whose case is before us.

*401A few cases decided since his opinion was written, however, may he noticed. In Earl v. Lubbock (L. R. 1905 [1 K. B. Div.] 253) the Court of Appeal in 1904 considered and approved the propositions of law laid down by the Court of Exchequer in Winterbottom v. Wright (supra), declaring that the decision in that case, since the year 1842, had stood the test of repeated discussion. The master of the rolls approved the principles laid down by Lord Abinger as based upon sound reasoning; and all the members of the court agreed that his decision was a controlling authority which must he followed. That the Federal courts still adhere to the general rule, as I have stated it, appears by the decision of the Circuit Court of Appeals in the Second Circuit, in March, 1915, in the case of Cadillac Motor Car Co. v. Johnson (221 Fed. Rep. 801). That case, like this, was an action by a subvendee against a manufacturer of automobiles for negligence in failing to discover that one of its wheels was defective, the court holding that such an action could not be maintained. It is true there was a dissenting opinion in that case, but it was based chiefly upon the proposition that rules applicable to stage coaches are archaic when applied to automobiles and that if the law did not afford a remedy to strangers to the contract the law should he changed. It this be true, the change should he effected by the legislature and not by the courts. A perusal of the opinion in that case and in the Huset case will disclose how uniformly the courts throughout this country have adhered to the rule and how consistently they have refused to broaden the scope of the exceptions. I think we should adhere to it in the case at bar and, therefore, I vote for a reversal of this judgment.

Hiscock, Chase and Cuddeback, JJ., concur with Cardozo, J., and Hogan, J., concurs in result; Willard Bartlett, Ch. J., reads dissenting opinion; Pound, J., not voting.

Judgment affirmed.

Cardozo, Ch. J.

Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help *341him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper.

In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.

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

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

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

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

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

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

Andrews, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The judgment appealed from should be affirmed, with costs.

Pound, Lehman and Kellogg, JJ., concur with Cardozo, Ch. J.; Andrews, J., dissents in opinion in which Crane and O’Brien, JJ., concur.

Judgment reversed, etc.

Opinion

MOSK, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Defendant, relying upon the rule stated in section 315 of the Restatement Second of Torts, urges that it owed no duty of care to decedent. The section provides that, absent a special relationship, an actor is under no duty to control the conduct of third parties. As explained hereinafter, this rule has no application if the plaintiff’s complaint, as here, is grounded upon an affirmative act of defendant which created an undue risk of harm. *49The rule stated in section 315 is merely a refinement of the general principle embodied in section 3145 that one is not obligated to act as a “good Samaritan.” (Rest.2d Torts, § 314, com. (a); James, Scope of Duty in Negligence Cases (1953) 47 Nw.U.L.Rev. 778, 803.) This doctrine is rooted in the common law distinction between action and inaction, or misfeasance and nonfeasance. Misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. As section 315 illustrates, liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care discussed above.

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

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

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

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

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

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

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

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

*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.

*163Cardozo, Ch. J.

The defendant, a water works company under the laws of this State, made a contract with the city of Rensselaer for the supply of water during a term of years. Water was to be furnished to the city for sewer flushing and street sprinkling; for service to schools and public buildings; and for service at fire hydrants, the latter service at the rate of $42.50 a year for each hydrant. Water was to be furnished to private takers within the city at their homes and factories and other industries at reasonable rates, not exceeding a stated schedule. While this contract was in force, a building caught fire. The flames, spreading to the plaintiff’s warehouse near by, destroyed it and its contents. The defendant according to the complaint was promptly notified of the fire, “but omitted and neglected after such notice, to supply or furnish sufficient or adequate quantity of water, with adequate pressure to stay, suppress or extinguish the fire before it reached the warehouse of the plaintiff, although the pressure and supply which the defendant was equipped to supply and furnish, and had agreed by said contract to supply and furnish, was adequate and sufficient to prevent the spread of the fire to and the destruction of the plaintiff’s warehouse and its contents.” By reason of the failure of the defendant to “fulfill the provisions of the contract between it and the city of Rensselaer,” the plaintiff is said to have suffered damage, for which judgment is demanded. A motion, in the nature of a demurrer, to dismiss the complaint, was denied at Special Term. The Appellate Division reversed by a divided court.

Liability in the plaintiff’s argument is placed on one or other of three grounds. The complaint, we are told, is to be viewed as stating: (1) A cause of action for breach of contract within Lawrence v. Fox (20 N. Y. 268); (2) a cause of action for a common-law tort, within MacPherson v. Buick Motor Company (217 N. Y. 382); or (3) a cause of action for the breach of a statutory duty. These several grounds of liability will be considered in succession.

*164We think the action is not maintainable as one for breach of contract.

No legal duty rests upon a city to supply its inhabitants with protection against fire (Springfield Fire Ins. Co. v. Village of Keeseville, 148 N. Y. 46). That being so, a member of the public may not maintain an action under Lawrence v. Fox against one contracting with the city to furnish water at the hydrants, unless an intention appears that the promisor is to be answerable to individual members of the public as well as to the city for any loss ensuing from the failure to fulfill the promise. No such intention is discernible here. On the contrary, the contract is significantly divided into two branches: one a promise to the city for the benefit of the city in its corporate capacity, in which branch is included the service at the hydrants; and the other a promise to the city for the benefit of private takers, in which branch is included the service at their homes and factories. In a broad sense it is true that every city contract, not improvident or wasteful, is for the benefit of the public. More than this, however, must be shown to give a right of action to a member of the public not formally a party. The benefit, as it is sometimes said, must be one that is not merely incidental and secondary (cf. Fosmire v. Nat. Surety Co., 229 N. Y. 44). It must be primary and immediate in such a sense and to such a degree as to bespeak the assumption of a duty to make reparation directly to the individual members of the public if the benefit is lost. The field of obligation would be expanded beyond reasonable limits if less than this were to be demanded as a condition of liability. A promisor undertakes to supply fuel for heating a public building. He is not liable for breach of contract to a visitor who finds the building without fuel, and thus contracts a cold. The list of illustrations can be indefinitely extended. The carrier of the mails under contract with the government is not answerable to the merchant who has lost the benefit of a bargain through *165negligent delay. The householder is without a remedy against manufacturers of hose and engines, though prompt performance of their contracts would have stayed the ravages of fire. “The law does not spread its protection so far” (Robins Dry Dock & Repair Co. v. Flint, 275 U. S. 303).

So with the case at hand. By the vast preponderance of authority, a contract between a city and a water company to furnish water at the city hydrants has in view a benefit to the public that is incidental rather than immediate, an assumption of duty to the city and not to its inhabitants. Such is the ruling of the Supreme Court of the United States (German Alliance Ins. Co. v. Home Water Supply Co., 226 U. S. 220). Such has been the ruling in this State (Wainwright v. Queens County Water Co., 78 Hun, 146; Smith v. Great South Bay Water Co., 82 App. Div. 427), though the question is still open in this court. Such with few exceptions has been the ruling mother jurisdictions (Williston, Contracts, § 373, and cases there cited; Dillon, Municipal Corporations. [5th ed.]., § 1340). The diligence of counsel has brought together decisions to that effect from twenty-six States. Typical examples are Alabama (Ellis v. Birmingham Water Co., 187 Ala. 552); California (Nichaus Bros. Co. v. Contra Costa Water Co., 159 Cal. 305); Georgia (Holloway v. Macon G. & W. Co., 132 Ga. 387); Connecticut (Nickerson v. Bridgeport H. Co., 46 Conn. 24); Kansas (Mott v. Cherryvale W. & M. Co., 48 Kan. 12); Maine (Hone v. Presque Isle Water Co., 104 Me. 217); New Jersey (Hall v. Passaic Water Co., 83 N. J. L. 771), and Ohio (Blunk v. Dennison Water Co., 71 Ohio St. 250). Only a few States have held otherwise (Page, Contracts, § 2401). An intention to assume an obligation of indefinite extension to every member of the public is seen to be the more improbable when we recall the crushing burden that the obligation would impose (cf. Hone v. Presque Isle Water Co., 104 Me. 217, at 232). The consequences invited would bear *166no reasonable proportion to those attached by law to defaults not greatly different. A wrongdoer who by negligence sets fire to a building is liable in damages to the owner where the fire has its origin, but not to other owners who are injured when it spreads. The rule in our State is settled to that effect, whether wisely or unwisely (Hoffman v. King, 160 N. Y. 618; Rose v. Penn. R.R. Co., 236 N. Y. 568; Moore v. Van Beuren & N. Y. Bill Posting Co., 240 N. Y. 673; cf. Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47). If the plaintiff is to prevail, one who negligently omits to supply sufficient pressure to extinguish a fire started by another, assumes an obligation to pay the ensuing damage, though the whole city is laid low. A promisor will not be deemed to have had in mind the assumption of a risk so overwhelming for any trivial reward.

The cases that have applied the rule of Lawrence v. Fox to contracts made by a city for the benefit of the public are not at war with this conclusion. Through them all there runs as a unifying principle the presence of an intention to compensate the individual members of the public in the event of a default. For example, in Pond v. New Rochelle Water Co. (183 N. Y. 330) the contract with the city fixed a schedule of rates to be supplied not to public buildings but to private takers at their homes. In Matter of International Railway Co. v. Rann (224 N. Y. 83, 85) the contract was by street railroads to carry passengers for a stated fare. In Smyth v. City of N. Y. (203 N. Y. 106) and Rigney v. N. Y. C. & H. R. R. R. Co. (217 N. Y. 31) covenants were made by contractors upon public works, not merely to indemnify the city, but to assume its liabilities. These and like cases come within the third group stated in the comprehensive opinion in Seaver v. Ransom (224 N. Y. 233, 238). The municipality was contracting in behalf of its inhabitants by covenants intended to be enforced by any of them severally as occasion should arise.

*167We think the action is not maintainable as one for a common-law tort.

"It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all” (Glanzer v. Shepard, 233 N. Y. 236, 239; Marks v. Nambil Realty Co., Inc., 245 N. Y. 256, 258). The plaintiff would bring its case within the orbit of that principle. The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all. A time-honored formula often phrases the distinction as one between misfeasance and non-feasance. Incomplete the formula is, and so at times misleading. Given a relation involving in its existence a duty of care irrespective of a contract, a tort may result as well from acts of omission as of commission in the fulfillment of the duty thus recognized by law (Pollock, Torts [12th ed.], p. 555; Kelley v. Met. Ry. Co., 1895, 1 Q. B. 944). What we need to know is not so much the conduct to be avoided when the relation and its attendant duty are established as existing. What we need to know is the conduct that engenders the relation. It is here that the formula, however incomplete, has its value and significance. If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward (Bohlen, Studies in the Law of Torts, p. 87). So the surgeon who operates without pay, is liable though his negligence is in the omission to sterilize his instruments (cf. Glanzer v. Shepard, supra); the engineer, though his fault is in the failure to shut off steam (Kelley v. Met. Ry. Co., supra; cf. Pittsfield Cottonwear Mfg. Co. v. Shoe Co., 71 N. H. 522, 529, 533); the maker of automobiles, at the suit of some one other than the buyer, though his negligence is merely in inadequate inspection (MacPherson *168v. Buick Motor Co., 217 N. Y. 382). The query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good (cf. Fowler v. Athens Waterworks Co., 83 Ga. 219, 222).

The plaintiff would have us hold that the defendant, when once it entered upon the performance of its contract with the city, was brought into such a relation with every one who might potentially be benefited through the supply of water at the hydrants as to give to negligent performance, without reasonable notice of a refusal to continue, the quality of a tort. There is a suggestion of this thought in Guardian Trust Co. v. Fisher (200 U. S. 57), but the dictum was rejected in a later case decided by the same court (German Alliance Ins. Co. v. Home Water Supply Co., 226 U. S. 220) when an opportunity was at hand to turn it into law. We are satisfied that liability would be unduly and indeed indefinitely extended by this enlargement of the zone of duty. The dealer in coal who is to supply fuel for a shop must then answer to the customers if fuel is lacking. The manufacturer of goods, who enters upon the performance of his contract, must answer, in that view, not only to the buyer, but to those who to his knowledge are looking to the buyer for their own sources of supply. Every one making a promise having the quality of a contract will be under a duty to the promisee by virtue of the promise, but under another duty, apart from contract, to an indefinite number of potential beneficiaries when performance has begun. The assumption of one relation will mean the involuntary assumption of a series of new relations, inescapably hooked together. Again we may say in the words of the Supreme Court of the United States, "The law does not spread its protection so far” (Robins Dry Dock & Repair Co. v. Flint, supra; cf. Byrd v. English, 117 Ga. 191; Dale v. Grant, 34 N. J. L. 142; Conn. Ins. *169Co. v. N. Y. & N. H. R. R. Co., 25 Conn. 265; Anthony v. Slaid, 11 Metc. 290). We do not need to determine now what remedy, if any, there might be if the defendant had withheld the water or reduced the pressure with a malicious intent to do injury to the plaintiff or another. We put aside also the problem that would arise if there had been reckless and wanton indifference to consequences measured and foreseen. Difficulties would be present even then, but they need not now perplex us. What we are dealing with at this time is a mere negligent omission, unaccompanied by malice or other aggravating elements. The failure in such circumstances to furnish an adequate supply of water is at most the denial of a benefit. It is not the commission of a wrong.

We think the action is not maintainable as one for the breach of a statutory duty.

The defendant, a public service corporation, is subject to the provisions of the Transportation Corporations Act. The duty imposed upon it by that act is in substance to furnish water, upon demand by the inhabitants, at reasonable rates, through suitable connections at office, factory or dwelling, and to furnish water at like rates through hydrants or in public buildings upon demand by the city, all according to its capacity (Transportation Corporations Law [Cons. Laws, ch. 63], § 81; Staten Island Water Supply Co. v. City of N. Y., 144 App. Div. 318; People ex rel. City of N. Y. v. Queens Co. Water Co., 232 N. Y. 277; People ex rel. Arthur v. Huntington Water Works Co., 208 App. Div. 807, 808). We find nothing in these requirements to enlarge the zone of liability where an inhabitant of the city suffers indirect or incidental damage through deficient pressure at the hydrants. The breach of duty in any case is to the one to whom service is denied at the time and at the place where service to such one is due. The denial, though wrongful, is unavailing without more to give a cause of action to another. We may find a helpful analogy in the law of common carriers. *170A railroad company is under a duty to supply reasonable facilities for carriage at reasonable rates. It is liable, generally speaking, for breach of a duty imposed by law if it refuses to accept merchandise tendered by a shipper. The fact that its duty is of this character does not make it liable to some one else who may be counting upon the prompt delivery of the merchandise to save him from loss in going forward with his work. If the defendant may not be held for a tort at common law, we find no adequate reason for a holding that it may be held under the statute.

The judgment should be affirmed with costs.

Pound, Crane, Andrews, Lehman and Kellogg, JJ., concur; O’Brien, J., not sitting.

Judgment affirmed, etc.

Shake, C. J.

The appellee recovered a judgment against the appellant for personal injuries. The assigned errors relate to the overruling of the appellant’s motion for a judgment on the interrogatories and the answers thereto and the motion for a new trial. Under the motion for a new trial it is charged that the verdict is not sustained by sufficient evidence; that it is contrary to law; that there was error in the giving and refusal of certain instructions; that appellee’s counsel was guilty of misconduct; and that the damages are excessive.

John Hicks, the appellee, a six-year-old boy, visited the appellant’s department store in company with his mother, who was engaged in shopping. While descending from the third floor on an escalator, the appellee fell at the second floor landing and some fingers of both *91his hands were caught in the moving parts of the escalator at the place where it disappears into the floor.

The appellee’s complaint contained five distinct charges of negligence, as follows:

“1. In operating an escalator so constructed as to leave sufficient space between said ribs, said comb-plate and the teeth thereof to permit the fingers of small children, including plaintiff, to become caught and wedged therein when said escalator could then and prior thereto have been so constructed as defendant knew or should have known with ribs so close together and passing between the teeth and under the comb-plate with so little space between that fingers of children could not have been entangled or wedged therein.

“2. In failing to have a proper guard placed over the teeth of said comb-plate and the openings between said teeth to prevent objects and particularly fingers and other parts of the body of passengers on said escalators which might be drawn therein from being caught therein.

“3. In failing to take proper steps to stop the movement of said escalator with reasonable promptness when it knew, or by exercise of reasonable care should have known, of plaintiff’s position of peril. That the means taken by defendant, if any, with reference to safeguarding passengers upon said escalators by having employees in a position to observe the same and stop said operation in the event of an accident, and the facts with reference to the stopping of the escalator after plaintiff’s said fall are unknown to plaintiff, but are fully known to the defendant.

“4. In failing to take proper steps for the immediate release of plaintiff from said escalator following said accident. That the means taken by defendant with reference to reversing such mechanism upon the happening of an accident and the means adopted by defendant with reference thereto after plaintiff’s said fall are unknown to plaintiff, except as hereinbefore stated, but are fully known to defendant.

“5. In failing to equip said mechanism so that it could be instantly reversed at or near the point *92of the accident in order to extricate therefrom persons who might become caught or entangled therein.”

On review; only the pleadings, the general verdict, and the interrogatories and answers will be considered in determining whether a judgment should have been entered on the answers to interrogatories. The evidence actually introduced at the trial will not be considered, but the court will suppose any evidence that might properly have been introduced under the issues. 2 Watson’s Works Practice, § 1903.

The jury found that the escalators with which the appellant’s store was equipped were purchased and installed in 1934; that no escalator was made prior to the accident that was safer than the one in use; that it was not the practice of stores installing escalators to have an attendant after a year; that the escalator on which appellee was injured was equipped with switch buttons at each floor landing by which it could be stopped in about 2*4 steps; that appellant had clerks working within 50 feet of the place where appellee was injured, all of whom had not been instructed how to stop the escalator; that the escalator was moving at the rate of 90 feet per minute; that appellee’s fingers were caught in the mechanism practically as soon as he fell; that the escalator ran “approximately 70 steps (of 15 inches) or more” before it was stopped; that it was from 3 to 5 minutes after appellee was first injured before his fingers were released; arid that the appellee’s injuries were increased by the grinding effect on his fingers which continued until the escalator was stopped.

*93 *92The appellant asserts that it affirmatively appears from the answers to the interrogatories that it was *93not guilty of any act or omission of negligence charged in the complaint. The facts found by the jury conclusively establish that the appellant was not negligent with respect to the choice, construction, or manner of operating the escalator. This being true, there could have been no incidental duty on the appellant to anticipate an accident, to instruct its employees, or to keep someone in attendance when the machine was in operation. One is not bound to guard against a happening which there is no reason to anticipate or expect. Parry Mfg. Co. v. Eaton (1908), 41 Ind. App. 81, 83 N. E. 510. Having concluded that the appellant was not responsible for the appellee’s initial injury, the question arises whether it may, nevertheless, be held liable for an aggravation of such injury, and, if so, under what circumstances.

It may be observed, on the outset, that there is no general duty to go to the rescue of a person who is in peril. So, in Hurley, Adm. v. Eddingfield, (1901), 156 Ind. 416, 59 N. E. 1058, 83 Am. St. Rep. 198, 53 L. R. A. 135, it was held that a physician was not liable for failing without any reason to go to the aid of one who was violently ill and who died from want of medical attention which was otherwise unavailable. The effect of this .rule was aptly illustrated by Carpenter, C. J., in Buch v. Amory Manufacturing Co. (1897), 69 N. H. 257, 260, 44 A. 809, 810, 76 Am. St. Rep. 163, 165, as follows:

“With purely moral obligations the law does not deal. For example, the priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might and morally ought to have prevented or relieved.”

There may be principles of social conduct so universally recognized as to be demanded that they be *94observed as a legal duty, and the relationship of the parties may impose obligations that would not otherwise exist. Thus, it has been said that, under some circumstances, moral and humanitarian considerations may require one to render assistance to another who has been injured, even though the injury was not due to negligence on his part and may have been caused by the negligence of the injured person. Failure to render assistance in such a situation may constitute . actionable negligence if the injury is aggravated through lack of due care. 38 Am. Jur. Negligence, § 16, p. 658, 69 L. R. A. 533. The case of Depue v. Flatau (1907), 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, lends support to this rule. It was there held that one who invited into his house a cattle buyer who called to inspect cattle which were for sale owed him the duty, upon discovering that he had been taken severely ill, not to expose him to danger on a cold winter night by sending him away unattended while he was in a fainting and helpless condition.

After holding that a railroad company was liable for failing to provide medical and surgical assistance to an employee who was injured without its fault but who was rendered helpless, by reason of which the employee’s injuries were aggravated, it was said with the subsequent' approval of this court, in Tippecanoe Loan, etc., Co. v. Cleveland, etc., R. Co. (1915), 57 Ind. App. 644, 649, 650, 104 N. E. 866, 868, 106 N. E. 739:

“In some jurisdictions the doctrine has been extended much further than we are required to- go in deciding this case. It has been held to apply to cases where one party has been so injured as to render him helpless by an instrumentality under the control of another, even though no relation of master and servant, or carrier and passenger existed at the time. It has been said that the mere happening of an accident of this kind creates a *95relation which gives rise to a legal duty to render such aid to the injured party as may be reasonably necessary to save his life, or to prevent a serious aggravation of his injuries, and that this subsequent duty does not depend upon the negligence of the one party, or the freedom of the other party from contributory negligence, but that it exists irrespective of any legal responsibility for the original injury.”

From the above cases it may be deduced that there may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless and in a situation of peril, when the one proceeded against is a master or an invitor or when the injury resulted from use of an instrumentality under the control of the defendant. Such an obligation may exist although the accident or original injury was caused by the negligence of the plaintiff or through that of a third person and without any fault on the part of the defendant. Other relationships may impose a like obligation, but it is not necessary to pursue that inquiry further at this time.

In the case at bar the appellee was an invitee and he received his initial injury in using an instrumentality provided by the appellant and under its control. Under the rule stated above and on the authority of the cases cited this was a sufficient relationship to impose a duty upon the appellant. Since the duty with which we are presently concerned arose after the appellee’s initial injury occurred, the appellant cannot be charged with its anticipation or prevention but only with failure to exercise reasonable care to avoid aggravation. The measure of that duty is not unlike that imposed by the rule of the last clear chance or doctrine of discovered peril, though it should be observed that the last mentioned rule imposes a *96negative rather than an affirmative obligation and does not depend upon the relationship of the parties. To invoke the application of the last clear chance as it has been defined in this State, the defendant must have had knowledge of the plaintiff’s situation of peril and of his helpless condition and, thereafter, have failed to exercise reasonable care to avoid harming him. Southern R. Co. v. Wahl (1925), 196 Ind. 581, 149 N. E. 72. The same rule must be applied in the case at bar. The third charge of negligence already-quoted invoked the application of this rule and, upon that theory, the facts found by the jury are not incompatible with the general verdict. There was, consequently, no error in overruling the appellant’s motion for a judgment on the answers to the interrogatories.

In the sixth instruction tendered by the appellee and given by the court the jury was told that “In determining the amount, of damages which you will award plaintiff, it is proper to consider every phase of his injuries, as charged in the complaint, and which you find have been established by a preponderance of the evidence.” AH of the appellee’s injuries including' those initially suffered and those which might be said to be the result of the appellant’s negligence were charged in the complaint and the subject of the evidence. The above instruction is, therefore, erroneous. In no event could the appellant be held liable for injuries that were not the proximate .result of its negligence. The apportionment of the damages under such circumstances has been recognized by the practice in this State. In The Standard Oil Company v. Bowker (1895), 141 Ind. 12, 17, 40 N. E. 128, 130, which was an action for personal injuries, we find the following language:

*97“It is argued further that the appellee, having disobeyed the instructions of his physician, in taking improper exercise, contributed to his diseased condition. While this may be true that fact would not deprive him of damages for the original injury, but would probably permit an inquiry as to the extent of the injury sustained alone from the fault ■ of the appellant.”

The Louisville, New Albany and Chieago Railway Company v. Falvey (1885), 104 Ind. 409, 424, 3 N. E. 389, 397, 4 N. E. 908, was a similar case to the one from which we have just quoted. In the latter case the following instruction was approved:

“ Tt was the duty of the plaintiff to use ordinary care, judgment and diligence in securing medical or surgical aid after she received the injuries complained of, if any she received, and if you find from . the evidence that after she received such injuries, if any she did receive, she failed to use such ordinary .care, judgment and diligence in procuring timely medical or surgical aid; and if you further find from the evidence that, by reason of such failure, her condition is now different and worse than it would have been if she had used such ordinary care, judgment and diligence in the premises, then, if you find for the plaintiff, you should take this into account in making up your verdict, and should not allow her any damages for ailments and diseases, if any, that may have resulted from such failure.’ ”

While the above cases arose on factual situations different from the ease at bar, the principles stated therein are applicable. Since the appellee was only entitled to recover for an aggravation of his injuries, the jury should have been limited and restricted in assessing the damages to the injuries that were the proximate result of the appellant’s actionable negligence.

*98This opinion might be extended, but in view of the fact that a new trial will be ordered it is not deemed necessary or proper to say more. Both parties are represented by able counsel and the case was unusually well tried. It is unlikely that the alleged errors not discussed will recur.

The judgment is reversed with directions to sustain the appellant’s motion for a new trial.

Note.—Reported in 40 N. E. (2d) 384.

On Petition for Rehearing.

Shake, C. J.

The appellee’s petition for rehearing challenges only that part of the foregoing opinion which holds that reversible error was committed in the giving of the appellee’s instruction No. 6. It is urged that: (1) Any error in the giving of this instruction was waived if it was presented; (2) standing alone, the instruction is not erroneous; and (3) it is not erroneous when considered with instructions Nos. 7 and 8 tendered by the appellant and given to the jury.

. As to the first point it may be observed that it affirmatively appears from the record and from the appellant’s original brief that the giving of in-struction No. 6 was one of the grounds of the motion for a new trial and that, the overruling of this motion was duly assigned as error on appeal. The proposition supporting this assigned error was stated in the appellant’s original brief as follows: “There was error in the sixth instruction requested by plaintiff and given, which instruction improperly included ■ humiliation as an element of plaintiff’s damages.” This was followed by the citations of many authorities. The question arises then whether we went outside the briefs in concluding that instruction No. 6 *99was bad because it embraced improper elements of . damages other than humiliation. While alleged errors not presented and discussed in the appellant’s brief will be treated as waived, this court does not regard itself as required to accept or reject the specific reasons advanced by a litigant to sustain his contentions. Keeshin Motor Express Co. v. Glassman (1942), 219 Ind. 538, 38 N. E. (2d) 847. The practice rule to the effect that alleged errors, not specifically pointed out in the appellant’s brief, will be treated as waived was not intended to circumscribe the reviewing tribunal. The purpose of the rule is to relieve the court of the burden of searching the record and briefing the case and to place that responsibility on the party asserting error. It will not be carried so far as to require the court to close its eyes to that which is apparent. To do so would not infrequently place us in the unhappy situation of lending tacit approval to an instruction palpably bad on its face, and this could only result in confusing the law and misleading the profession. In Big Creek Stone Co. et al. v. Seward et al. (1895), 144 Ind. 205, 210, 42 N. E. 464, 43 N. E. 5, it was observed in this connection that “If the court were limited to the arguments and reasoning of counsel in its decisions of cases, to the exclusion of its own observations, many cases would lead us far from what we understand to be the true object of the court.” In the instant case we have done nothing more than to state cogent reasons, not advanced by counsel, to sustain an assignment-, properly made and presented, to the effect that reversible error was committed in the giving of the appellee’s sixth instruction. It should be noted that the practice in this regard has been changed by Rule 1-7, not in effect at the time the case at bar was tried, which provides that no error with respect to the giving of instructions *100shall be available as cause for a new trial or on appeal except upon the specific objections made before argument.

The appellee’s instruction No. 6 was as follows:

“If, under the law and the evidence in this case, you find that the plaintiff is entitled to recover, it will then become your duty to fix or determine the amount of his damages. In determining the amount-of damages which you will award plaintiff, it is proper to consider every phase of his injuries, as charged in the complaint, and which you find have been established by a preponderance of the evidence. You may consider the kind and character of his injuries, whether the same are temporary or permanent, any physical pain or mental suffering or humiliation which the plaintiff has suffered or will suffer in the future, if the same be shown by the evidence. It is also proper for you to consider, if shown by the evidence, the effect of the injuries which plaintiff has sustained upon his ability to earn money after he becomes 21 years of age from any proper business, calling, or profession, and the kind and character of work which plaintiff will be prevented from doing after becoming 21 years of age, as a result of his injuries, if shown by the evidence, and from a consideration of all -the facts shown in evidence bearing upon said subject, it will then be your duty to award the plaintiff such sum as will fairly and fully compensate him for all his said injuries which you find from a preponderance of the evidence he has sustained, as charged in the complaint, as the direct and proximate result of any negligence of the defendant, which you find charged in the complaint and established by a preponderance of all the evidence in this case, not exceeding the sum demanded -—$80,000.00.”

In the second sentence of the above instruction the court advised the jury that, “In determining the amount of damages which you will award plaintiff, it is proper to consider every phase of his injuries, as charged in the complaint, and which you find have been established *101by a preponderance of the evidence.” All of the appellee’s injuries, including those received before as well as after the alleged omissions of negligence upon which the appellee must rely as a basis of recovery, were described in the complaint and evidence. The part of the instruction quoted did not undertake to limit the appellee’s damages to those proximately resulting from a violation of the duty resting on the appellant to exercise reasonable care to avoid an aggravation of the appellee’s injuries. “The rule deducible from (the) cases is that where facts are allowed to go in evidence which furnish an incorrect basis for the assessment of damages, an instruction which directs the jury to determine from all the facts, or all the evidence, the amount of recovery, is erroneous.” Stewart v. Swartz (1914), 57 Ind. App. 249, 253, 106 N. E. 719, 721. If the quoted sentence had been separately numbered and given as a complete instruction, it would clearly be erroneous.

The appellee contends, however, that the instruction is saved by the concluding part thereof wherein the jury was told that “. . . from a consideration of all the facts shown in evidence bearing upon said subject, it will then be your duty to award the plaintiff such sum as will fairly and fully compensate him for all his said injuries which you find from a preponderance of the evidence he has sustained, as charged in the complaint, as the direct and proximate result of any negligence of the defendant, which you find charged in the complaint and established by a preponderance of all the evidence in the case, not exceeding the sum demanded. . . .” The first quoted part of the instruction, though a misstatement of the law, is short, clear, and unambiguous, while the part last quoted is lengthy, involved, and dependent upon punctuation for its meaning. While a skilled grammarian *102or a lawyer, experienced in determining the meaning of written instruments, might, perhaps, conclude after careful study that the latter part of the instruction sufficiently modified or amplified the former, this cannot be the test for determining whether a jury usually composed of laymen was correctly instructed as to the law. Bearing in mind the theory upon which the case was apparently tried, we cannot escape the conviction that if instruction No. 6 standing alone was not positively erroneous it was, nevertheless, so confusing and misleading that it ought not to have been, given.

Relying upon the rule that instructions should be considered as a whole and that if as a whole they state the law correctly there is no reversible error even though a part of the instructions considered alone might be erroneous, the appellee urges that any error in instruction No. 6 was cured by the following instructions tendered by the appellant and given to the jury:

No. 7.

“Another charge of negligence in the complaint is failure to stop the escalator with reasonable promptness after the plaintiff’s position of peril should have been known. The Court instructs you that before any verdict could be based on this charge it would have to appear that such delay in stopping the escalator was the proximate cause of the plaintiff’s injury, and if you should believe from the evidence that the plaintiff was injured practically at the instant he fell down, and that his injuries were not materially increased by delay in stopping the escalator, then you would not be justified in basing any verdict against the defendant on this charge of negligence.”

No. 8.

“If you should believe from the evidence that the defendant was guilty of some delay in stopping the escalator after the plaintiff fell, and that such delay somewhat increased the plaintiff’s injuries, you could not base a verdict for the plaintiff on that *103ground as to anything except the extent to which the injuries were thereby increased, and if the evidence does not establish that the delay did increase the injuries, you could not award anything to the plaintiff on account of such delay, even if you find that such delay existed.”

An examination of the appellant’s instructions Nos. 7 and 8 discloses that they relate to the subject of negligence rather than the measure of damages. Both deal with the appellant’s duty to the appellee. Neither informs the jury as to the elements to be taken into consideration in assessing damages if it finds there was a violation of that duty. While these instructions go further than they should have gone with respect to the appellant’s liability and authorize a recovery on grounds not recognized in the principal opinion, we cannot regard them as curing the error in the appellee’s instruction No. 6.

The petition for rehearing is denied.

Roll, J., dissents.

Note.—Reported in 41 N. E. (2d) 195.

Dissenting Opinion

Roll, J.

I am unable to agree with the majority opinion. Because of the far reaching results of the rules laid down in the majority opinion, I feel impelled to state my views on the subject.

It will be noted that in the original opinion, the court discussed the question raised by appellant’s motion for judgment on the answers to the interrogatories. In discussing that question, the court set out the four separate acts of negligence charged in the complaint. It was there pointed out that no actionable negligence was proved as charged in the first and second charges, which charges had to do with the choice, construction, *104or manner of operating the escalator. The third charge of negligence had reference to the delay of appellant in stopping the escalator after it knew of appellee’s position. The 'majority opinion pointed out that, “the facts found by the jury conclusively establish that the appellant was not negligent with respect to the choice, construction, or manner of operating the escalator.”

-It is clearly made to appear that by the interrogatories submitted by the court and answered by the jury, that the jury appreciated the fact that appellant was not guilty of any acts of negligence which caused appellee’s initial injury, as charged in the first and second specifications of negligence; and on the other hand the jury was of the opinion that appellee suffered injuries which were the result of appellant’s negligence in failing to use due diligence to stop the escalator, after it had knowledge of appellee’s condition, as charged in the third specification of negligence. This is all very definitely pointed out in the first opinion in this case.

It will also be noted that appellee, in his complaint, very definitely separated the initial injury from the subsequent injuries by the four separate charges of negligence. The evidence introduced at the trial also .emphasized this separation of injuries, and this evidence was effective as disclosed by the answers to the interrogatories. But this is not all. Again this distinction between the initial injuries and the injuries sustained as a result of appellant’s negligence in failing to stop the escalator after appellee’s position of peril was known to it, was very clearly presented to the jury by instructions Nos. 7 and 8, tendered by appellant.

- This brings us to the consideration of instruction No. 6, as discussed by the majority opinion on rehear*105ing. Before discussing the merit of instruction No. 6, it should be observed that appellant made one and only-one objection to this instruction, namely: that said instruction, “improperly included humiliation as an element of damage.”

The only points and authorities urged in appellant’s original brief were directed to this single objection. The majority found that the instruction was not subject to the criticism made against it. Notwithstanding this fact, the majority of the court felt at liberty to reverse the judgment of the trial court upon grounds never urged either in its original brief or reply brief. The court cited only one authority for so doing, and that was the recent case of Keeshin Motor Express Co. v. Glassman (1942), 219 Ind. 538, 38 N. E. (2d) 847, in which opinion I did not concur. Neither did the court in the last cited case find any case to support it. Attorneys in that case as in this case were unable to find authority to support the proposition, and I have made diligent search on my own initiative and have been unable to find such a case. I do not think this practice should be followed, because, if this court is going to examine every instruction objected to by appellant for errors other than those pointed out in appellant’s brief, then appellee must necessarily be put to the task of suggesting in his answer brief every possible objection that could be urged to the instruction, and to meet such possible objection. Otherwise he runs the risk of the court’s reversing the case on a point never urged by appellant to the trial court or this court, and to which objection appellee has never had an opportunity to answer.

The general rule, as I understand it, is that all objections not specifically pointed out by appellant in his brief under points and authorities or discussed in *106his argument, are considered waived, and that appellee in his answer brief has a right to assume that the court will so consider them. The only possible exception to this general rule is, that where there is a general assignment of error, and the error is so apparent and so palpably wrong, that there could be no serious disagreement about the matter, then, in my judgment, the court would be justified in taking notice of such error and reverse the case, even though appellant had not pointed out specifically the real error. For instance, if an instruction, unquestionably erroneous, is given and was objected to by appellant, and he properly saves the question in his motion for a new trial, but in his brief he relies upon some untenable objection, the court might very properly refuse to shut its eyes to the obviously, erroneous instruction, and reverse the case. Appellee could not very well complain of such action by the court because he could not have sustained the instruction, had the proper error been pointed out by appellant in his brief. Consequently, he was not harmed by the action of the court. This court has even refused to go this far in some cases. In the case of P., C., C. & St. L. R. W. Co. v. O'Brien (1895), 142 Ind. 218, 219, 41 N. E. 528, the court said:

“The second paragraph of the complaint is fatally defective in its failure to state that the plaintiff was entitled to possession of the lots. The statute provides that: ‘The plaintiff in his complaint shall state that he is entitled to possession of the premises, particularly describing them, the interest he claims therein, and that the defendant unlawfully keeps him out of possession.’ Burns R. S. 1894, section 1066; R. S. 1881, section 1054; Leary v. Langsdale, 35 Ind. 74; McCarnan v. Cochran, 57 Ind. 166; Vance v. Schroyer, 77 Ind. 501; Levi v. Engle, Admr., 91 Ind. 330; Mansur v. Streight, 103 Ind. 358; Simmons v. Lindley, 108 Ind. 297; Miller v. Shriner, 87 Ind. 141.

*107“Strong as these authorities are in support of the error assigned on the ruling, overruling the demurrer to the second paragraph of the complaint for want of sufficient facts, the appellant has waived it by the failure to discuss the same in its brief.”

But quite a different situation arises, where the question involved is doubtful and questionable. Under such circumstances, I am not persuaded that this court should depart from the general rule and reverse the case on a point not raised by appellant in his brief, and on a point which appellee had no opportunity to be heard. But even had appellant properly questioned the sixth instruction in his brief, the question still remains, is the instruction erroneous, in the light of the facts presented in this case and as hereinbefore pointed out, and in the light of appellant’s instructions Nos. 7 and 8.

The'majority opinion says that instructions 7 and 8 relate to the subject of negligence rather than the measure of damages. I doubt if this assertion is accurate. Both the subject of negligence and damages are mentioned, but not the measure of damages. The measure of damages is set out in No. 6. It is obvious, however, that the court was attempting to get clearly in the minds of the jury that one of the acts of negligence alleged in the complaint was the failure to stop the escalator with reasonable promptness after the plaintiff’s position of peril should have been known. The court then told the jury that if the plaintiff was injured when he fell, and that his injuries were not materially increased by delay in stopping the escalator, then it should not find a verdict for plaintiff on this charge of negligence.

By instruction No. 8, the court in effect told the jury that if it found that the defendant did delay in stopping the escalator after plaintiff fell, and that *108the delay increased plaintiff’s injuries, then it should award plaintiff damages for the increase only. It is difficult for me to conceive how a jury could have been more clearly instructed as to just what injuries the plaintiff- was entitled to recover. If the jury was not confused as to what injuries it was measuring in damages, then instruction No. 6 was not erroneous. It is admitted by the majority opinion that the correct measure of damages was'stated in instruction No. 6 but concluded that instruction No. 6 confused the jury as to the injury for which it was assessing damages. As heretofore pointed out, the initial injury suffered by the fall, was not the result of any fault of appellant, and the jury so found by its answers to the interrogatories. Evidence as to the initial injury was introduced. Also evidence of the increased injury was offered. Plaintiff offered evidence as to how much of his fingers was cut off by the initial injury, and then showed how much additional injury resulted by not stopping the escalator.

When instruction No. 6 is taken in connection with appellant’s own instructions Nos. 7 and 8, and as applied to the facts of this case as they appear from the record, in my judgment instruction No. 6 is not erroneous.

For the reasons above set out, I am unable to concur in the majority opinion.

Note.—Reported in 41 N. E. (2d) 356.

Pfaff, P. J.

— This appeal arises as a result of demurrer to appellant’s Second Amended Complaint which was sustained and judgment entered thereon upon the failure and refusal of the appellant to plead over.

The facts material to a determination of the issues raised on this appeal may be summarized as follows:

*697On January 28, 1959 at approximately 12:00 Noon, the appellant was riding as a guest passenger in the right front seat of an automobile owned and operated by the appellee in the 100 block west of West Hampton Drive in the City of Indianapolis, Indiana. While traveling in an easterly direction the automobile was driven over the south curb of West Hampton Drive and into a tree, resulting in injury to the appellant. After the said collision, the appellee abandoned the automobile and did not render reasonable aid and assistance to the injured appellant. Appellant alleges that she suffered additional injuries as a result of appellee’s failure to render reasonable aid and assistance and seeks to recover only for these additional injuries.

In her assignment of errors, the appellant avers that the trial court erred in sustaining the demurrer to appellant’s Second Amended Complaint. More specifically, the appellant alleges that appellee’s failure to render reasonable aid and assistance constituted a breach of a common law duty.

The appellee contends that throughout the appellant’s occupancy of the said motor vehicle, she was a guest as defined under the “Guest Statute,” which limited liability to those injuries resulting from wanton and wilful misconduct and thus precluded liability for negligence. See Burns’ Ind. Stat. Anno. § 47-1021 (1965 Replacement), which reads as follows:

“47-1021 [10142.1]. Guest of owner or operator — Right to damages. — The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, in or upon such motor vehicle, resulting from, the operation thereof, unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle. [Acts 1929, ch. 201, §1, p. 679; 1987, ch. 259, §1, p. 1229.]” (Emphasis supplied).

*698 *697A literal interpretation of this statute leads this court to the conclusion that the motor vehicle operator is not liable *698for injuries resulting from the operation of said vehicle, unless caused by his wanton and wilful misconduct.

Before the appellee in the case at bar can invoke this statute to preclude herself from liability for negligence, the injuries must result from the operation of said motor vehicle.

The appellant herein is seeking recovery for additional injuries arising from the appellee’s failure to- render reasonable aid and assistance, and not for the initial injuries which resulted from the operation of the automobile. It is the opinion of this Court that appellant’s cause of action for additional injuries is outside the scope of Sec. 47-1021 because these additional injuries did not arise until after the operation of the said automobile had ceased. Sec. 47-1021 is only applicable to those injuries resulting from the operation of the said vehicle. Thus the appellee cannot invoke Sec. 47-1021, swpra, to limit his liability for these additional injuries to acts of wanton and wilful misconduct.

At common law, there is no general duty to aid a person who is in peril. L. S. Ayres & Company v. Hicks (1941), 220 Ind. 86, 40 N. E. 2d 334; Hurley, Adm. v. Eddingfield (1900), 156 Ind. 416, 59 N. E. 1058. However, in L. S. Ayres & Company, supra, page 94, the Supreme Court of Indiana held that “under some circumstances, moral and humanitarian consideration may require one to render assistance to another who has been injured, even though the injury was not due to the negligence on his part and may have been caused by the negligence of the injured party. Failure to render assistance in such a situation may constitute actionable negligence if the injury is aggravated through lack of due care.” Tippecanoe Loan, etc., Co. v. Cleveland, etc. R. Co. (1915), 57 Ind. App. 644, 104 N. E. 866, 106 N. E. 739; Depue v. Flatau (1907), 100 Minn. 29, 111 N. W. 1.

In Tippecanoe Loan, etc., Co. v. Cleveland, etc. R. Co., supra, this court held that a railroad company was liable for failing *699to provide medical assistance to an employee who was injured through no fault of the railroad company, but who was rendered helpless and by reason of which the employee’s injuries were aggravated.

The Supreme Court of Indiana in L. S. Ayres, swpra, found the appellant liable for aggravation of injuries when it failed to extricate the appellee, a six year old boy, whose fingers were caught in the moving parts of an escalator, even though the jury conclusively established that the appellant was not negligent with respect to the choice, construction, or manner of operating the elevator. In so holding, the Supreme Court stated that it may be deduced from Tippecanoe Loan, etc. Co. v. Cleveland, etc. R. Co., supra, “that there may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless and in a situation of peril, when the one proceeded against is a master or an invitor, or when the injury resulted from use of an instrumentality under the control of the defendant.”

The doctrine of law as set forth in Restatement (Second) of Torts, § 322, p. 133, adds credence to these two Indiana cases. “* * * If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of future harm, the actor is under a duty to exercise reasonable care to prevent such further harm.”

One distinction between the Ayres, supra and Tippecanoe, supra cases and the case at bar is that both of the former cases involve situations where an economic advantage flows to the defendant, while the case at bar does not. It is the opinion of this Court that an affirmative duty to render reasonable aid and assistance is not limited to those cases involving the flow of an economic advantage to the alleged defendant. The court, in both the above mentioned cases, stated that other relationship may impose a like obligation and it is the opinion of the Court that the case at bar *700presents a situation in which an affirmative duty arises to render reasonable aid and assistance to one who is helpless and in a situation of peril, when the injury resulted from use of an instrumentality under the control of the defendant.

In the case at bar, the appellant received her injuries from an instrumentality under the control of the appellee. Under the rule stated above and on the authority of the cases cited, this was a sufficient relationship to impose a duty to render reasonable aid and assistance, a duty for the breach of which appellee is liable for the additional injuries suffered.

We are of the opinion that the court below erred in sustaining the demurrer to appellant’s Second Amended Complaint.

This cause is reversed and remanded for proceedings not inconsistent with this opinion.

Judgment reversed.

Bierly and Smith, JJ., concur.

Cook, J., not participating.

Note. — Reported in 225 N. E. 2d 841.

HICKENLOOPER, Circuit Judge.

Stewart, plaintiff below, was a passenger in an automobile truck, sitting on the front seat to the right of the driver, a fellow, employee of the East Ohio Gas Company. He recovered a judgment in the District Court for injuries received when the truck was struck by one of the defendant’s trains at the 123d street crossing in the city of Cleveland. Defendant maintained a watehman at this crossing, which wasi admittedly heavily traveled, but the watchman, was either within the shanty or just outside of it as the train approached, and he gave no warning until too late to avoid the accident. Two alleged errors are relied upon. The first to be considered is that the plaintiff, even though a passenger, was shown to be guilty of contributory negligence as a matter of law.

The doctrine of imputed negligence does not prevail in Ohio. (Street Ry. Co. v. Eadie, 43 Ohio St. 91, 1 N. E. 519, 54 Am. Rep. 802), and no facts were shown to bring the ease within the doctrine of New York C. & St. L. R. R. Co. v. Kistler, 66 Ohio St. 326, 64 N. E. 130, and Erie R. Co. v. Hurlburt, 221 F. 907 (C. C. A. 6), as showing assumption by the plaintiff of a share in the responsibility for vigilance. Conceding that the plaintiff was under obligation to exercise such care as a reasonably prudent person would exercise under the same or similar circumstances, this court has so frequently held that there is a qualified assurance of safety in the absence of the flagman or the failure to. lower the gates that the citation of authority would seem unnecessary. However, see Zimmerman v. Pennsylvania R. Co. (C. C. A.) 252 E. 671; Wabash R. Co. v. Glass (C. C. A.) 32 F.(2d) 697; Leuthold v. Pennsylvania R. Co. (C. C. A.) 33 F.(2d) 758. The question of the contributory negligence of the plaintiff was properly left to the determination of the jury.

The second contention of appellant presents the question whether the court erred in charging the jury that the absence of the watehman, where one had been maintained by the defendant company at a highway crossing over a long period of time to the knowledge of the plaintiff, would constitute negligence as a matter of law. In the present case it is conceded that the employment of the watehman by the defendant was voluntary upon its part, there being no statute or ordinance requiring the same, and that plaintiff had knowledge of this practice and relied upon the absence of the watehman as an assurance of safety and implied invitation to cross. We are not now concerned with the extent of the duty owing to one who had no notice of the prior practice, nor, in this aspect of the ease, with the question of contributory negligence and the extent to which the plaintiff was relieved from the obligation of vigilance by the absence of the watehman. The question is simply whether there was any positive duty owing to the plaintiff in respect to the maintenance of such watehman, and whether a breach of such duty is so conclusively shown as to justify a peremptory charge of negligence. The question whether such negligence was the proximate cause of the injury was properly submitted to the jury.

Where the'employment of a watchman or other precaution is required by statute, existence of an absolute duty to the plaintiff is conclusively shown, and failure to observe the statutory requirement is negligence per se. Hover v. Denver & R. G. W. R. Co., 17 F.(2d) 881, 883 (C. C. A. 8); C. H. & D. R. Co. v. Van Horne, 69 F. 139 (C. C. A. 6). *857The same doctrine applies in Ohio where the vatehman is required by ordinance. Schell v. Du Bois, 94 Ohio St. 93, 113 N. E. 664, L. R. A. 1917A, 710. Conversely, where there is no duty prescribed by statute or ordinance, it is usually a question for the jury whether the circumstances made the employment of a watchman necessary in the exercise of due care. Rothe v. Pennsylvania Co., 195 F. 21 (C. C. A. 6). Where the voluntary employment of a watchman was unknown to the traveler upon the highway, the mere absence of such watchman could probably not be considered as negligence toward him as a matter of law, for in’ such case there is neither an established duty positively owing to such traveler as a member of the general public, nor had he been led into reliance upon the custom. The question would remain simply whether the circumstances demanded such -employment. But where the practice is known to the traveler upon the highway, and such traveler has been educated into reliance upon it, some positive duty must rest upon the railway with reference thereto. The elements of invitation and assurance of safety exist in this connection no less than in connection with contributory negligence. The eompany has established for itself a standard of due care while operating its trains across the highway, and, having led the traveler into reliance upon such standard, it should not be permitted thereafter to say that no duty required, arose from or attached to these precautions.

This duty has been recognized as not only actual and positive, but as absolute, in the sense that the practice may not be discontinued without exercising reasonable care to give warning of such discontinuance, although the company may thereafter do all that would otherwise be reasonably necessary. American Law Institute, Restatement of the Law of Torts, Tentative Draft No. 4, Comment f to § 183. Conceding for the purposes of this opinion that, in cases where a watchman is voluntarily employed by the railway in an abundance of precaution, the duty is not absolute, in the same sense as where it is imposed by statute, still, if there be some duty, it cannot be less than that the company must use reasonable care to see that reliance .by members of the educated public upon its representation of safety is not converted into' a trap. Responsibility for injury will arise if the service be negligently performed or abandoned without other notice of that fact. Passarello v. West Jersey, etc., R. Co., 98 N. J. Law, 790,121 A. 708; Birmingham So. R. Co. v. Harrison, 203 Ala. 284, 82 So. 534, 544; C., N. O. & T. P. Ry. Co. v. Prewitt’s Adm’r, 203 Ky. 147, 150, 262 S. W. 1. If this issue of negligent performance be disputed, the question would still be for the jury under the present concession. But if the evidence in the case justifies only the conclusion of lack of due care, or if the absence of the watchman or the failure to give other notice of his withdrawal be wholly unexplained, so that but one inference may be drawn therefrom, the court is warranted in instructing the jury that, in that particular 'case, negligence appears as a matter of law.

So, in the present ease, the evidence conclusively establishes the voluntary employment of a watchman, knowledge of this fact and reliance upon it by the plaintiff, a duty, therefore, that the company, through the watchman, will exercise reasonable care in warning such travelers as plaintiff, the presence of the watchman thereabouts, and no explanation of the failure to warn. Therefore, even though the duty be considered as qualified, rather than absolute, a prima facie case was established by plaintiff, requiring the defendant to go forward with evidence to rebut the presumption of negligence thus raised, or else suffer a verdict against it on this point. See discussion of burden of proof and presumptions in Insurance Co. v. Ross, 30 F.(2d) 80 (C. C. A. 6). No such evidence was introduced by defendant. No other inference than that of negligence could therefore be drawn from the evidence. If, perhaps, the rule was stated more broadly than this in the charge, the error, if any, was harmless as applied to the present case.

While the authorities do not always distinguish between the effect of the absence of the watchman as relieving the plaintiff of some of his duty of vigilance, and as establishing defendant’s negligence, while some confusion often arises by failure to discuss and distinguish cases of negligence per se and those where the neglect of the defendant is considered solely as evidence of negligence, and while there is a somewhat general lack of careful analysis of precedent and the principles of law involved, the conclusions which we have here announced are. in harmony with the general trend of judicial thought and expression. Cf. American R. Co. of Porto Rico v. Ortega, 3 F.(2d) 358 (C. C. A. 1); Sights v. Louisville & N. R. Co., 117 Ky. 436, 78 S. W. 172; Montgomery v. Missouri Pac. Ry. Co., 181 Mo. 477, 79 S. W. 930; Burns v. North Chicago Rolling Mill Co., 65 Wis. 312, 27 N. W. 43; Ernst v. Hudson River R. Co., 39 N. T. 61, 100 Am. Dec. 405; Dolan v. Delaware & Hudson *858Canal Co., 71 N. Y. 285; St. L., V. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; Chicago & A. Ry. Co. v. Wright, 120 Ill. App. 218; 33 Cyc. 946; and the eases already above cited.

The judgment of the District Court is affirmed.

TUTTLE, District Judge.

I concur in the result reached by the opinion of the majority of the court. I cannot, however, concur in the views, expressed in that opinion, which would make the actionable negligence of the defendant dependent upon the knowledge of the plaintiff, previous to his injury, of the custom of the defendant in maintaining a watchman at the crossing where sueh injury occurred. It is settled law that a railroad company operating trains at high speed across a public highway owes to travelers properly 'using *such highway the duty to exercise reasonable care to give sueh warning of approaching trains as may be reasonably required by the particular circumstances. It is equally well settled that the standard of duty thus owed to the public, at least where not otherwise prescribed by statutory law, consists of that care and prudence which an ordinarily prudent person would exercise under the same circumstances. I am satisfied that where, as here, a railroad company has established a custom, known to the general public, of maintaining a watchman at a public crossing with instructions to warn the traveling public of the approach of trains, such railroad company, in the exercise of that reasonable care which it owes to the public, should expect, and is bound to expect, that any member of the traveling public approaching sueh crossing along the public highway is likely to have knowledge of, and to rely upon the giving of such warning. Sueh knowledge, with the consequent reliance, may be acquired by a traveler at any time, perhaps only a moment before going upon the crossing; and this also the railroad company is bound to anticipate. Having, in effect, given notice to the public traveling this highway that it would warn them of trains at this crossing, I think that it was bound to assume (at least in the absence of knowledge to the contrary) that every member of sueh public would receive, and rely on, sueh notice. Under sueh circumstances sueh a railroad company, in my opinion, owes to every traveler so approaching this crossing a duty to give sueh a warning, if reasonably possible, and a, reasonably prudent railroad company would not fail, without sufficient cause, to perform that duty. It follows that the unexplained failure, as in the present ease, of the defendant to give this customary warning to the plaintiff, a traveler on the highway approaching this crossing, indicates, as a matter of law, actionable negligence for which it is liable. While undoubtedly lack of reliance by plaintiff upon the custom of the defendant has an important bearing and effect upon the question whether the plaintiff was guilty of contributory negligence, it seems to me clear that the knowledge or lack of knowledge of the plaintiff, unknown to the defendant, concerning such custom cannot affect the nature or extent of the duty- owed to the plaintiff by the defendant or the performance of sueh duty. As therefore the conclusions expressed in the opinion of a majority of the court are, to the extent which I have thus indicated, not in accord with my own views in this connection, I have felt it my duty to briefly state such views in this separate concurring opinion.

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.

CALABRESI, Circuit Judge:

If a man chooses to leave a cart standing in the street, he must take the risk of any mischief that may be done. Illidge v. Goodwin, 5 Carrington & Payne’s Reports 190 (1881).

In the one hundred and sixty-four years since Chief Justice Tindal of the English Court of Common Pleas first set down this rule of tort liability, our means of transportation have advanced considerably. Nevertheless, the rule’s basic premise, that a tortfea-sor is liable for the foreseeable acts of an intervening party, remains sound in our modern age of aeronautics. Indeed, as this case in part demonstrates, the concept of intervening causation may apply equally well to the “mischief’ engendered by an unattended airport baggage carousel as it does to a neglected horse and wagon.

Plaintiff, Eleanor M. Stagl, appeals from a judgment of the United States District Court for the Eastern District of New York (the Honorable John R. Bartels, Senior District Judge), granting summary judgment to defendant, Delta Air Lines, Inc., and dismissing her personal injury action against Delta which was based upon the airline’s alleged negligent supervision and management of its baggage retrieval system. See Stagl v. Delta Air Lines, Inc., 849 F.Supp. 179, 184-85 (E.D.N.Y.1994). Mrs. Stagl also appeals from the district court’s denial of her cross-motion to compel Delta to provide discovery relating to similar injuries that allegedly have occurred at or near other Delta baggage carousels. Id. at 185. Because we agree with Mrs. Stagl that the district judge erroneously granted Delta’s motion and denied her cross-motion, we reverse the judgment and remand the case for further proceedings.

BACKGROUND

On May 1, 1993, Mrs. Stagl, then 77 years old, was a passenger on a Delta flight from Orlando, Florida to LaGuardia Airport in New York City. The plane was delayed for approximately one-half hour, and Mrs. Stagl noted that upon its arrival in New York the passengers were visibly upset. After disembarking from the aircraft, Mrs. Stagl proceeded to a designated baggage carousel lo*466cated in Delta’s terminal in order to retrieve her luggage.

In her affidavit in opposition to Delta’s motion for summary judgment, Mrs. Stagl describes the Delta terminal as “bedlam.” According to her, “[pjeople were crowded around the baggage carousel and everyone seemed in a hurry to get out of the airport.” Moreover, they were “rowdy and unruly, pushing and shoving each other, grabbing their luggage from the moving carousel by whatever means possible.” She further claims that Delta did not provide any personnel, or make any cautionary announcement to quell the turmoil; nor did the airline cordon-off a separate area in which elderly and disabled passengers could safely obtain their luggage.

In an attempt to reclaim her own belongings, Mrs. Stagl made her way to the “front rank” of the throng surrounding the baggage carousel. Apparently, an unidentified man to one side of her reached across the conveyor belt, grabbed his satchel with great force, and unwittingly triggered a domino effect. His bag collided with another’s suitcase, which, in turn, fell off the carousel, toppling Mrs. Stagl. As a result, she suffered a broken hip.

Mrs. Stagl brought this diversity action in the district court, claiming that Delta did not exercise reasonable care to ensure her safety. She complained that the airline negligently failed to take any crowd-control measures or to provide a safe method by which elderly and disabled people could retrieve their luggage. Mrs. Stagl alleged that her physical injuries were the proximate result of Delta’s inaction.

During discovery, a representative of the airline stated that there had been other, similar accidents at Delta baggage terminals. Delta refused, however, to respond to Mrs. Stagl’s subsequent request for information regarding accidents of like kind that had occurred at or near Delta baggage carousels, and at a pretrial conference the district judge declined to require Delta to give such information. Delta then moved for summary judgment on the grounds that the Airline Deregulation Act of 1978, 49 U.S.C. § 1305(a)(1), preempted Mrs. Stagl’s state law negligence claim, and that, in any event, Mrs. Stagl had failed to establish a prima facie case of negligence on Delta’s part. Mrs. Stagl opposed Delta’s motion and formally cross-moved to compel Delta to provide her with the accident information that she had previously requested.

In a Memorandum and Order dated February 22, 1994, the district court granted Delta summary judgment. The district judge held that the Airline Deregulation Act did not preempt Mrs. Stagl’s negligence claim. See Stagl, 849 F.Supp. at 182-83. He then concluded that, under New York law, Mrs. Stagl had “failed to establish that Delta’s duty as an air carrier encompasses a duty to control the crowd at the baggage retrieval area or designate a separate area for elderly passengers.” Id. at 183. The district judge further determined that Delta had, in any event, fulfilled its duty to act reasonably under the circumstances. See id. at 184. Accordingly, the district court dismissed Mrs. Stagl’s action and denied her cross-motion for discovery as moot. See id. at 185.

On appeal, Mrs. Stagl argues that the district court: (1) erroneously narrowed the duty of reasonable care that Delta owed passengers located in its luggage retrieval area; (2) usurped the jury’s function in determining that Delta acted reasonably under the circumstances; and (3) abused its discretion in denying her cross-motion for additional discovery. We agree.

DISCUSSION

I. Delta’s Motion for Summary Judgment

To succeed on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(e). The district court “must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir.1993). We review a district court’s grant of sum*467mary judgment de novo. See Westinghouse Elec. Corp. v. New York City Transit Auth., 14 F.3d 818, 821 (2d Cir.1994).

On appeal, neither party has questioned the district court’s preemption ruling, and we therefore take it as given that state law applies. Because both parties agree that New York cases are controlling, we shall assume that New York law governs this diversity action. In order to establish a prima facie case of negligence under New York law, a claimant must show that: (1) the defendant owed the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the plaintiff suffered damage as a proximate result of that breach. See Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 392, 489 N.E.2d 1294, 1294 (1985). This appeal raises questions that touch upon all three elements, and we shall address each one in turn.

A. Delta’s Duty of Reasonable Care

The district court ruled that “Delta owed no duty to protect [Mrs. Stagl] from the particular injury involved here.” Stagl, 849 F.Supp. at 183. Relying upon several airport cases involving injuries to passengers that resulted from other passengers’ careless placement of luggage, see Gross v. American Airlines, Inc., 755 F.Supp. 89 (S.D.N.Y.1991); Gray v. America West Airlines, Inc., 209 Cal.App.3d 76, 256 Cal.Rptr. 877 (4th Dist.1989), the district court concluded that Delta had no obligation “to protect against or warn of potential negligent conduct by third persons within the terminal building.” See Stagl, 849 F.Supp. at 184. This was error.

There is no question that Delta, as an owner or occupier of the premises, owed a duty to take reasonable steps in maintaining the safety of its baggage retrieval area. See Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 568, 352 N.E.2d 868, 872 (1976) (“A landowner 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.”) (internal quotations omitted); Koppel v. Hebrew Academy of Five Towns, 191 A.D.2d 415, 415, 594 N.Y.S.2d 310, 311 (2d Dep’t 1993) (same); see also Kush v. City of Buffalo, 59 N.Y.2d 26, 29, 462 N.Y.S.2d 831, 833, 449 N.E.2d 725, 726 (1983) (“A landowner has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition.”); Cruz v. New York City Transit Auth., 136 A.D.2d 196, 198, 526 N.Y.S.2d 827, 828 (2d Dep’t 1988) (“a common carrier is required to exercise reasonable or ordinary care, in view of the dangers to be apprehended, in providing and maintaining safe and adequate stairways in its stations”).

This duty is a broad one, and it includes the obligation “to take reasonable precautions to protect [patrons] from dangers which are foreseeable from the arrangement or use of the property,” W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, David G. Owen, Prosser and Keeton on Torts, § 61 at 425-26 (5th ed. 1984) [hereinafter “Prosser & Keeton”], as well as to exercise reasonable care in protecting visitors from the foreseeable, injurious actions of third parties. See Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 518-19, 429 N.Y.S.2d 606, 613, 407 N.E.2d 451, 457 (1980) (landlord has duty to take reasonable precautionary measures to minimize risk of foreseeable criminal activity and make premises safe for visiting public); Lindskog v. Southland Restaurant, Inc., 160 A.D.2d 842, 843, 554 N.Y.S.2d 276, 277 (2d Dep’t 1990) (“A landowner has the duty to control the conduct of persons present on his premises when he has the opportunity to control or is reasonably aware of the necessity of such control.”); Stevens v. Kirby, 86 A.D.2d 391, 394, 450 N.Y.S.2d 607, 610 (4th Dep’t 1982) (“A tavern owner owes a duty to his patrons to protect them from personal attack when he has reasonable cause to anticipate conduct on the part of third persons which are likely to endanger their safety.”); Restatement (Second) of Torts § 344 (1977).

In deciding that “Delta was under no duty to .protect against or warn of potential negligent conduct of third persons within the terminal building,” 849 F.Supp. at 184, the district court relied primarily upon two decisions — only one of which involves New York law, and that ruling by a federal district *468court. That case, Gross v. American Airlines, Inc., 755 F.Supp. 89 (S.D.N.Y.1991), concerned a passenger who was injured while standing on an airport curbside check-in line. See id. at 90. A woman in line next to the plaintiff fell backwards, allegedly over a piece of hand luggage that had been carelessly left on the ground, causing the plaintiff to lose his own balance and to injure himself. See id. In dismissing the plaintiffs claim against the airline, the district judge stated: “I find it unreasonable, indeed silly, to impose a duty on [the airline] to post signs warning passengers to watch out for the very obvious placement of luggage by the feet of other passengers nearby in the check-in line.” Id.

Despite the loose “no duty” language contained in Gross, however, that decision does not stand for the proposition that an airline owes its patrons no duty to take reasonable care against the foreseeable, injurious actions of third parties on airline premises. To the contrary, the court in Gross specifically stated that the airline “owed a duty of care to [the plaintiff] while he was on the [airline’s] check-in line.” 755 F.Supp. at 91. The court dismissed the plaintiffs complaint not for the lack of an existing duty on the part of the airline, but because the plaintiff could not establish even a prima facie ease that the defendant had been negligent at all. The court determined that the plaintiff had

not presented any evidence that [the airline] failed to act reasonably in providing a safe cheek-in process. Furthermore, by failing to show what caused the woman next to him to fall, the plaintiff ha[d] failed to link his injury to any action or inaction on the part of [the airline].

755 F.Supp. at 91. See also MacDonald v. Air Canada, 439 F.2d 1402, 1404-05 (1st Cir.1971) (affirming district court’s directed verdict for an airline-defendant where an elderly woman who fell in airport terminal was standing away from the confusion of the baggage carousel and there was no evidence that she tripped over any luggage).

The second case relied on by the district court, Gray v. America West Airlines, Inc., 209 Cal.App.3d 76, 256 Cal.Rptr. 877 (4th Dist.1989) involved an equally ill-fated passenger who, after receiving her boarding pass at the' airline’s ticket counter, tripped over a box that had been carelessly left at her feet. Id. at 80, 256 Cal.Rptr. at 878. In affirming the trial judge’s grant of summary judgment for the defendant-airline, the California appellate court stated that “no duty can .be imposed on the businesses serving travellers to safeguard them from tripping over another’s luggage in busy common areas like an airport concourse.” Id. at 83, 256 Cal.Rptr. at 881.

Even if Gray were representative of New York law, it would be easily distinguishable. There, the accident occurred in the airport concourse, which the court described as a “busy common area[ ].” Id. at 84, 256 Cal.Rptr. at 881. The court held that “such a public concourse area is more analogous to a public street or sidewalk than to the premises of a private business,” and therefore concluded that the landowner’s duty of reasonable care did not attach to the defendant-airline. Id. at 84 — 85, 256 Cal.Rptr. at 881-82. Here, of course, Mrs. Stagl was injured in Delta’s own baggage terminal, over which Delta had full dominion and control. Under these circumstances, we think that New York law would apply the traditional landowner’s duty of reasonable care to Delta. As the occupier of these premises, Delta was required to take all reasonable measures to ensure that Mrs. Stagl’s trip to the baggage carousel was a safe one. See Elston v. FCO Auto Racing, Inc., 161 A.D.2d 561, 562, 555 N.Y.S.2d 394, 395 (2d Dep’t 1990).1

*469In the present case, the district judge refused to impose an obligation upon Delta to safeguard passengers against the foreseeable risks created by its concentration of allegedly unruly travelers around a congested baggage carousel. In the district court’s opinion, such a duty would “offer little if any real public benefit, and yet would impose upon the airline burdensome and costly obligations.” Stagl, 849 F.Supp. at 185. Although we appreciate that, under New York law, the “existence and scope of an alleged tortfeasor’s duty is usually a policy-laden declaration reserved for Judges” that, in part, weighs competing socioeconomic factors in an attempt to distribute “burdens of loss and reparation on a fair, prudent basis,” Palka v. Servicemaster Management Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 820, 634 N.E.2d 189, 192 (1994); see also De Angelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 627-28, 449 N.E.2d 406, 407-08 (1983), we also note that New York courts do not exercise this authority on an ad hoc basis.

To the contrary, the judicial power to modify the general rule that

[wjhenever 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 the 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,

Havas v. Victory Paper Stock Co., 49 N.Y.2d 381, 386, 426 N.Y.S.2d 233, 236, 402 N.E.2d 1136, 1138 (1980) (quoting Heaven v. Prender, 11 Q.B.D. 503, 509 (1883)), is reserved for very limited situations. Thus, for example, in determining that a tort duty to third parties may arise out of a contractual assumption of responsibilities, see Palka, 83 N.Y.2d at 587, 611 N.Y.S.2d at 821, 634 N.E.2d at 193, and in recognizing that concepts underlying the former assumption of risk doctrine survive in a very limited area, and may serve to bar some sports-related negligence claims despite the passage of a comparative negligence statute, see Turcotte v. Fell, 68 N.Y.2d 432, 437-39, 510 N.Y.S.2d 49, 52-53, 502 N.E.2d 964, 967-68 (1986), New York courts have conducted fact-specific duty analyses.2 But where, as here, the applicable duty relationship is well established, we do not believe New York law condones the limitation of a familiar liability rule simply to avoid placing a disproportionate burden on a defendant in a particular case. The law deals with that problem not by redefining the defendant’s duties in each case, but by asking whether — considering all the circumstances of the particular ease — the defendant breached its duty of care.

*470B. Delta’s Alleged Breach of Duty

Apparently as an alternative basis for its decision, the district court determined that “Delta fulfilled its duty to act reasonably under the circumstances.” Stagl, 849 F.Supp. at 184. This, of course, raises the age-old debate as to when it is appropriate for a court to decide the question of a defendant’s due care as a matter of law, rather than allowing a jury to resolve it as an issue of fact. The problem was perhaps best presented in Lorenzo v. Wirth, 170 Mass. 596, 49 N.E. 1010 (1898), the noted case that posed the burning question of whether a court may rule that an open coalhole in the sidewalk, with a pile of recently delivered coal upon it, is so obviously hazardous to all pedestrians that the exercise of ordinary care does not require the placement of additional warnings.

Answering in the affirmative, then-judge Holmes stated that “[i]n simple cases of this sort, courts have felt able to determine what, in every case, however complex, defendants are bound at their peril to know, namely, whether the given situation is on one or the other side of the line [of the defendant’s duty of care].” 170 Mass, at 600, 49 N.E. at 1101. Judge Knowlton took the opposite view in Lorenzo, and insisted that the

kind of conduct ... required under complex conditions, to reach ’the usual standard of due care, namely, the ordinary care of persons of common prudence, is a question of fact, to be determined according to the observation and experience of common men. Even when there is no conflict in testimony, if there are acts and omissions, of which some tend to show negligence, and others do not, the question whether there was negligence or not is, in my judgment, a question for the jury.

170 Mass, at 604, 49 N.E. at 1101-02 (Knowl-ton, J., dissenting).

Although vestiges of this polemic survive, see, e.g., Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531 (1981) (concluding, over strong dissent, that the installation of a standard backstop fence fulfills a baseball park owner’s duty of reasonable care to protect spectators from foul balls as a matter of law),3 Holmes’ view — “ ‘that standards of conduct ought increasingly to be fixed by the court for the sake of certainty — has been largely rejected.’” See Fowler V. Harper, Fleming James, Jr., Oscar S. Gray, The Law of Torts § 15.3, at 358-59 n. 16 & n. 4 (2d ed. 1986) [hereinafter “Harper & James”] (quoting Nuckoles v. F.W. Woolworth Co., 372 F.2d 286, 289 (4th Cir.1967)); Richard M. Nixon, Changing Rules of Liability In Automobile Accident Litigation, 3 Law & Con-temp.Probs. 476, 477 (1936).4 Indeed, the New York Court of Appeals has concluded that it is

particularly appropriate to leave [a finding of negligence] to the jury, not only because of the idiosyncratic nature of most tort eases ..., or because there was room for a difference of view as to whether [the defendant’s] conduct in the particular circumstances of this case did or did not evidence a lack of due care, but, perhaps above all, because in the determination of issues revolving about the reasonableness of conduct, the values inherent in the jury system are rightfully believed an important instrument in the adjudicative process....

Havas, 49 N.Y.2d at 388, 426 N.Y.S.2d at 237, 402 N.E.2d at 1139 (citations omitted); see also Nallan, 50 N.Y.2d at 520 n. 8, 429 N.Y.S.2d at 614 n. 8, 407 N.E.2d at 458 n. 8; (“[w]hat safety precautions may reasonably be required of a landowner is almost always a question of fact for the jury”); Phihpot v. Brooklyn Nat’l League Baseball Club, 303 N.Y. 116, 121, 100 N.E.2d 164, 167 (1951) *471(whether means adopted by baseball club to protect stadium spectators from reasonably foreseeable misuse of empty glass beverage bottles was a jury question); Cruz, 136 A.D.2d at 202, 526 N.Y.S.2d at 831 (sufficiency of transit authority’s precautions against passengers’ foreseeable misuse of elevated platform railing was a jury question that precluded entering judgment as a matter of law).5

Nevertheless, Delta argues that this action properly falls within a narrow category of “crowd control” cases, in which the New York courts have significantly limited the jury’s role in determining what constitutes reasonable care. See e.g. Williams v. New York Rapid Transit Corp., 272 N.Y. 366, 369, 6 N.E.2d 58, 59 (1936); Palermo v. New York City Transit Auth., 141 A.D.2d 809, 810, 530 N.Y.S.2d 25, 26 (2d Dep’t 1988); McIvor v. New York, New Haven and Hartford Railroad Co., 10 A.D.2d 961, 201 N.Y.S.2d 681, 682 (2d Dep’t 1960); Ryan v. City of New York, 7 A.D.2d 298, 299, 182 N.Y.S.2d 616, 617 (1st Dep’t), aff'd, 6 N.Y.2d 896, 190 N.Y.S.2d 705, 160 N.E.2d 924 (1959); Cross v. Murray, 260 A.D. 1030, 24 N.Y.S.2d 500, 501 (2d Dep’t 1940); Lynch v. Consolidated Rail Corp., 439 F.Supp. 110, 112 (S.D.N.Y.1977). These cases almost always involve injuries sustained on railway platforms, and hold that in order to establish a prima facie claim of negligence against the carrier, “it must be shown that the crowd was so large and unmanaged that a user of the platform was restricted in his free movements or was unable to find a safe standing place, and that as a result of either of those conditions an injury was sustained.” Cross 260 A.D. at 1030, 24 N.Y.S.2d at 501; see also Palermo, 141 A.D.2d at 810, 530 N.Y.S.2d at 26 (affirming summary judgment dismissing a claim for injuries sustained while on line for a public bus). Delta contends that, because Mrs. Stagl cannot prove that this condition existed in the baggage terminal at the time she was injured, the district court correctly dismissed her claim.

We do not find these decisions applicable here. To start, we read these cases to stand only for the proposition that if a landowner maintains conditions that are *472reasonably safe under circumstances of normal crowding, and if there is no excessive or unruly crowding at the time an injury occurs, the landowner does not breach his or her duty of care. Indeed, relying on a factual record that showed no overcrowding or unreasonable obstruction of a railway platform to support its holding, the New York Court of Appeals was nevertheless careful to distinguish factors that would have made the case one for the jury. The court stated:

This is not a case of an excessive crowding of a platform. This one is capable of accommodating a hundred or more passengers. Nor is it a case of failure to repress a boisterous or unruly aggregation of passengers. Conditions were in all respects normal.

Williams, 272 N.Y. at 369, 6 N.E.2d at 59; see also Palermo, 141 A.D.2d at 810, 530 N.Y.S.2d at 26 (“There was no .evidence that the plaintiffs freedom of movement was unduly restricted nor was it demonstrated that she was unable to find a safe place to stand.”); McIvor, 10 A.D.2d at 961, 201 N.Y.S.2d at 682 (“The evidence is insufficient to support a finding that the injury was caused by defendant’s negligence....”); Commerford v. Interborough Rapid Transit Co., 199 A.D. 852, 192 N.Y.S. 349, 350 (1st Dep’t 1922) (“the evidence falls very far short under the authorities of showing any negligence in regard to the space of the platform or in regard to its being overcrowded”). At least as Mrs. Stagl describes it, her ease presents the type of scenario — described in Williams — that warrants a jury determination. After all, according to Mrs. Stagl, the Delta terminal was “bedlam.”

Moreover, although Mrs. Stagl has somewhat inartfully framed her claim in terms of negligent “crowd control,” we note that she does not base her cause of action solely on Delta’s alleged failure to control a crowd. The crux of her liability theory is the alleged absence of a reasonably safe system of passenger luggage retrieval. Cf. Garrett v. American Airlines, Inc., 332 F.2d 939, 942 (5th Cir.1964) (distinguishing airline’s broader duty to safeguard against hazardous passenger activity from a more narrow theory of slip-and-fall liability).

To put it another way, Mrs. Stagl does not contend that the crowd of people in Delta’s terminal was the sole instrumentality of her injuries. Rather, she finds fault with Delta’s lack of passenger supervision in conjunction with the airline’s control and operation of its baggage carousel. Cf. 79 N.Y.Jur.2d § 81 (1989) (“The plaintiff in all negligence cases may show that better, safer, and more practicable devices than those used were available to the defendant.”). And the existence of an unruly crowd, although certainly a relevant factor, is only one element to be considered in determining whether, in the context of the events, Delta breached its duty of reasonable care to Mrs. Stagl. See, e.g., Paranzino v. Yonkers Raceway, Inc., 9 Misc.2d 378, 380, 170 N.Y.S.2d 280, 282-83 (App.Term.1957) (raceway negligent for failing to take “salutary precaution” of placing police officers at strategic points on stairwell to manage crowd); Schubart v. Hotel Astor, Inc., 168 Misc. 431, 434, 5 N.Y.S.2d 203, 207 (Sup.Ct.) (hotel, which had prior notice of unruly crowd of guests, negligent for failing to post doorman at revolving door to protect other patrons), aff'd, 255 A.D. 1012, 8 N.Y.S.2d 567 (2d Dep’t 1938), aff'd, 281 N.Y. 597, 22 N.E.2d 167 (1939); cf. Cejka v. R.H. Macy & Co., 3 A.D.2d 535, 535-36, 162 N.Y.S.2d 207, 208 (1st Dep’t 1957) (per curiam) (suggesting that a department store’s duty of care would have required stationing guards at revolving doors to protect patrons if there had been evidence of congestion or overcrowding), aff'd, 4 N.Y.2d 785, 173 N.Y.S.2d 24, 149 N.E.2d 525 (1958).

In support of her contention that Delta was careless in managing its baggage carousel and the crowd around it, Mrs. Stagl submitted the affidavit of an engineer named Grahme Fischer. Mr. Fischer enumerated several ways in which, in his opinion, Delta could have made the baggage carousel area safer for passengers like Mrs. Stagl. Without expressing any views regarding the reasonableness of the proposed measures contained in this affidavit, we conclude that, when read in the light most favorable to Mrs. Stagl, Mr. Fischer’s statement clearly raises issues of fact as to whether Delta sufficiently discharged its duty of care. Cf. Cruz, 136 *473A.D.2d at 198, 526 N.Y.S.2d at 829 (testimony of engineer regarding negligent design of platform railing, viewed most favorably to the plaintiffs, “was sufficient to establish a prima facie a case” precluding directed verdict).6

For all these reasons, the district court’s judgment that Delta was free from negligence as a matter of law cannot stand.

C. Proximate Causation and Third Party Intervenors

Since Delta’s alleged negligence is a jury question, the district court should not have dismissed the case unless it could say, as a matter of law, that Delta’s actions were not the proximate cause of Mrs. Stagl’s injuries. According to Delta, the proximate cause of Mrs. Stagl’s injuries was the rogue passenger at the baggage carousel — that is, his luggage-wielding behavior was a superseding event that now insulates the airline from liability. This contention has no merit.

The governing rule in New York has long been settled and is perfectly clear: an intervenor’s actions will not break the necessary chain of causation where they are “a normal or foreseeable consequence of the situation created by the defendant’s negligence.” Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 169, 414 N.E.2d 666, 670 (1980); see also Kush v. City of Buffalo, 59 N.Y.2d 26, 33, 462 N.Y.S.2d 831, 835, 449 N.E.2d 725, 729 (1983) (“When ... the intervening act is a natural and foreseeable consequence of a circumstance created by the defendant, liability will subsist.”). Conversely, “[i]f the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from defendant’s conduct, it may well be a superseding act which breaks the causal nexus.” Derdiarian, 51 N.Y.2d at 315, 434 N.Y.S.2d at 169, 414 N.E.2d at 670. Furthermore, in order for the causal link to remain intact, a defendant need not foresee the precise intervening act; its occurrence need only fall within the general category of reasonably anticipated consequences of the defendant’s actions. See id., at 315-16, 434 N.Y.S.2d at 169-70, 414 N.E.2d at 670-71.

In light of these principles, Delta’s causation argument immediately fails. An impatient, suitcase-swinging traveler at a crowded airport baggage carousel hardly seems an extraordinary event. Cf. Derdiarian, 51 N.Y.2d at 316, 434 N.Y.S.2d at 170, 414 N.E.2d at 670 (court could not determine as a matter of law that epileptic’s failure to take medication causing him to lose control of his car and crash into a roadside construction site was a superseding cause that shielded gas company from liability for its failure to safeguard its workers); Cruz, 136 A.D.2d at 199, 526 N.Y.S.2d at 829 (actions of third person who inadvertently knocked plaintiff off his perch on elevated subway platform railing was not so extraordinary or unforeseeable as to constitute a superseding cause of plaintiffs injuries as a matter of law); Garrett, 332 F.2d at 943 (condoning the inference that a passenger might foreseeably fall on carelessly placed luggage while waiting on line to board plane).

Indeed, the appearance of a rude and hurried passenger at Delta’s LaGuardia terminal is highly unlikely to break the causal connection between the airline’s alleged negligence and Mrs. Stagl’s injury — particularly since Mrs. Stagl’s theory of negligence rests on Delta’s claimed failure to mitigate the very risks generated by such people. See Derdiarian, 51 N.Y.2d at 316, 434 N.Y.S.2d at 170, 414 N.E.2d at 671 (“An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent.”).7 It certainly *474does not do so as a matter of law. See id. (“Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues are generally for the fact finder to resolve.”). The question of proximate cause in this case remains an issue for the jury to determine.

II. Mrs. Stagl’s Cross Motion for Additional Discovery

Since the District Court concluded that Delta owed Mrs. Stagl no duty of care with respect to the harm that she suffered, it denied her cross-motion for additional discovery. See Stagl, 849 F.Supp. at 185. Because we vacate the court’s grant of summary judgment, and hold that Delta’s duty of care extended to operating its baggage carousel in a reasonably safe manner, it is appropriate to address Mrs. Stagl’s discovery claim.

Discovery rulings fall within the discretion of the district court and, as a general matter, we will not disturb them on appeal absent an abuse of that discretion. See Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir.1990). During a pretrial deposition, a Delta representative vaguely admitted that there had been previous carousel-related accidents. Thereafter, Mrs. Stagl sought further information from Delta regarding accidents similar to hers that have occurred in the past at or near the airline’s airport baggage carousels. Evidence of such incidents would unquestionably be relevant, if not central, to Mrs. Stagl’s case, and we hold that the district court’s refusal to eompel Delta’s compliance with her request constituted an abuse of discretion. See id. (district court’s restriction upon discovery that “unduly limited” plaintiffs ability to establish element of his wrongful discharge ease warranted reversal of summary judgment).

To begin with, an accident record of this sort would be directly germane to establishing the degree of risk generated by Delta’s method of luggage retrieval and hence whether its failure to institute some other means was, in fact, negligent. Cf. Villante v. Dep’t of Corrections, 786 F.2d 516, 521 (2d Cir.1986) (reversing summary judgment for defendant on 42 U.S.C. § 1983 claim because district court failed to order discovery that would have established whether defendant had notice of on-going assaults upon plaintiff).

Such information would also be highly relevant to strengthening Mrs. Stagl’s proof of causation. A history of prior passenger collisions at Delta’s baggage carousels would demonstrate beyond peradventure that the conduct of the unidentified man was a foreseeable consequence of Delta’s alleged negligence and, thus, that his behavior did not sever the link between Delta’s actions and Mrs. Stagl’s injury.

Accordingly, we reverse the district court’s denial of Mrs. Stagl’s cross-motion to compel additional discovery.

CONCLUSION

Because we hold that Delta owed Mrs. Stagl a duty to maintain its luggage retrieval area in a reasonably safe condition, and because we conclude that there exist issues of fact both as to whether Delta sufficiently discharged that duty and whether Delta’s conduct was the proximate cause of Mrs. Stagl’s injuries, we vacate the district court’s entry of summary judgment on Delta’s behalf. Furthermore, we reverse the district court’s denial of Mrs. Stagl’s cross-motion to compel additional discovery, and we remand this ease for further proceedings consistent with this opinion.

Opinion

BAXTER, J.

We are asked to decide whether a shopkeeper owes a duty to a patron to comply with an armed robber’s demand for money in order to avoid increasing the risk of harm to patrons. The Court of Appeal held that such a duty exists. Petitioner Kentucky Fried Chicken of California, Inc. (KFC), disagrees and argues that the decision of the Court of Appeal conflicts with that in Vandermost v. Alpha Beta Co. (1985) 164 Cal.App.3d 771 [210 Cal.Rptr. 613] (Vandermost).

We conclude that a shopkeeper does not have a duty to comply with the unlawful demand of an armed robber that property be surrendered. Although the circumstances of this case differ from those considered by the Vandermost court, the reasoning of Vandermost and the authorities on which it relied are persuasive. Recognition of a duty to comply with an unlawful demand would be contrary to public policy as it would encourage similar unlawful conduct.

We shall, therefore, reverse the judgment of the Court of Appeal.

I

Background

This mandamus proceeding arises out of the denial of KFC’s motion for summary judgment in a negligence action. Real party in interest Kathy Brown named KFC a defendant in a complaint seeking general and special damages for emotional distress, hospital and medical expenses, loss of *818wages, and loss of earning capacity. Brown alleged that she was a customer at a Redondo Beach restaurant operated by KFC when she was seized and held at gunpoint by an unidentified person who threatened to seriously injure Brown if employees of KFC did not give him the money in the cash register. The complaint alleged that an employee did not comply promptly with the robber’s demands and that her delay and other actions caused further injury to plaintiff and resulted in additional threats of grave injury to Brown.

The complaint also alleged that KFC failed to provide proper security, and failed to properly train its employees in how to respond to criminal activity to avoid endangering or further endangering its customers.

KFC answered the complaint, denying all allegations of the complaint. As affirmative defenses KFC claimed, inter alia, that the complaint failed to state a cause of action because it had no duty to plaintiff to comply with a robber’s unlawful demands. In the absence of the duty and breach of the duty elements, the complaint did not state a cause of action in negligence.

KFC then moved for summary judgment. (Code Civ. Proc., § 437c.)

It appears from documents offered in support of the motion for summary judgment that Brown was the only customer in the KFC restaurant when she was accosted by the robber, who put a gun to her back. She complied with his demands and surrendered her cash and her wallet to him. He then demanded that a clerk open the cash register and give him all of the money. The clerk did not do so. Instead, she said she would have to go to the back of the restaurant for a key. The robber then became extremely agitated, shoved his gun harder into Brown’s back, and told the employee he would shoot Brown if the employee did not “quit playing games” and open the cash register immediately. Brown, who believed she was going to die because of the employee’s actions, then “screamed” at the clerk to open the drawer and give the money to the robber, at which point the clerk complied and opened the cash register drawer. The robber seized the money and fled. The robber did not become agitated and angry until the cashier told him that she would have to get the keys to the register. KFC was unaware at that time of any prior similar crimes or any crimes at this store.

KFC argued that it was entitled to judgment as a matter of law since it owed no duty of care to Brown to protect her against violent criminal acts of unknown third parties while on its premises, and that even if a duty of care was owed, no duty was breached by a failure to provide adequate security or properly train its employees to respond to criminal activity.

In a petition for writ of mandate by which it sought to overturn the order denying the motion for summary judgment, KFC argued only that it did not *819have a duty to Brown, a customer, to comply with the demands of the robber in order to avoid injury to Brown. Therefore, that is the only issue the Court of Appeal was called upon to address and is the one we address here.

II

Court of Appeal Decision/Vandermost

As the Court of Appeal recognized, the existence of a duty is a question of law for the court. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137, 863 P.2d 207]; Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167, 27 A.L.R.5th 899].) The Court of Appeal applied general principles applicable to the liability of a landowner or occupier for injury to persons on premises held open to the public. Under those general principles, when determining the existence and scope of the duty to protect business invitees from the criminal conduct of third parties, the court balances the foreseeability of the harm against the burden of the duty. If the burden is great, a high foreseeability of harm may be required, but a lesser degree of foreseeability may be required if “ ‘ “there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means.” ’ ” (6 Cal.4th at p. 679.)

The duty of a proprietor of a business establishment to business invitees generally includes a “duty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.” (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [52 Cal.Rptr. 561, 416 P.2d 793].)1 We recognized in Taylor that a business proprietor is not an insurer of an invitee’s safety. There is a *820requirement, however, that reasonable care be taken for their safety, and liability exists for injuries resulting from a breach of that duty of reasonable care, (ibid.)

When the liability of a landowner to persons on his or her property is in issue, additional factors are considered in determining whether a duty should be imposed and, if so, the extent of that duty. “Some factors that courts consider in determining the existence and scope of a duty in a particular case are: ‘ [T]he 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.’ ” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 675, fn. 5, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].)

Although these rules had not heretofore been applied to create a duty to cooperate with an armed robber, the Court of Appeal concluded that a duty existed in the circumstances of this case. The court reasoned: A robbery was in progress. The robber was holding a gun to the back of the patron, demanding that the cashier open the cash register and give him the money. It was reasonably foreseeable that if the cashier did not cooperate with the robber the hostage would be terrorized and potentially shot to death. That foreseeability was made clear in crime prevention pamphlets distributed by the Redondo Beach Police Department, which were among the evidence offered in opposition to the motion for summary judgment. The pamphlets advised readers that they should never refuse an armed robber’s demand for money, an admonition which implicitly recognized the likelihood of an increased risk of injury or death if the victim resisted the demand.

Applying the remaining factors this court identified in Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, the Court of Appeal concluded that there was a high degree of certainty that the plaintiff suffered injury, that the injury was closely connected with the defendant’s conduct, and that the burden on defendant of avoiding the injury by complying with the robber’s demand was “slight.”

KFC contends that this holding conflicts with that in Vandermost, supra, in which the Court of Appeal concluded that no duty to comply with a *821robber’s demands should be imposed because adverse consequences to the public would result. There, the plaintiff was with a group of friends seated in a restaurant. He heard a commotion near the cash register and a sound like a firecracker. He went to investigate and saw Moreno talking to the cashier. Moreno demanded that the cashier “ ‘give me the money or I am going to shoot someone,’ ” after which Moreno fired into the ceiling. (Vandermost, supra, 164 Cal.App.3d at p. 775.)

The cashier closed the cash drawer, causing it to lock, and fled to the kitchen after making eye contact with the plaintiff. Moreno attempted unsuccessfully to open the cash register. He appeared to be “ ‘pissed off, angry, confused.’ ” (Vandermost, supra, 164 Cal.App.3d at p. 775.) As plaintiff moved toward the exit, Moreno approached him and demanded that plaintiff give him all of plaintiff’s money. When plaintiff responded that he did not have any money, Moreno said “ ‘Oh yeah’ ” and shot plaintiff in the arm, after which he said “ ‘That will prove I’m not fucking around.’ ” (Ibid.)

The Vandermost court recognized the rule of Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d 114, that a landowner or occupier who conducts a business open to the public has a duty to protect visitors from wrongful acts of third persons if there is reasonable cause to anticipate that conduct and the probability of injury to the patron. It concluded, however, that while a jury could infer that it was reasonably foreseeable to the clerk that Moreno would shoot a patron, the connection between the clerk’s conduct and the plaintiff’s injury was “tenuous,” and that any moral blame under the circumstances was that of Moreno. (164 Cal.App.3d at p. 779.)

The Vandermost court also reasoned that the policy implications of imposing a duty to comply with a robber’s demands to avoid provoking the robber into injuring a patron militated against recognizing such a duty. The court adopted the view of the Illinois Supreme Court in Boyd v. Racine Currency Exchange, Inc. (1973) 56 Ill.2d 95 [306 N.E.2d 39].

In Boyd, a robber seized a patron of the defendant money exchange and threatened to shoot the patron unless the teller complied with a demand that the teller give money to the robber or allow him into the enclosed teller’s booth. The teller refused and the robber shot the hostage. The Illinois Supreme Court feared that if a duty to comply with such demands were to be imposed, it would benefit the criminal without offering assurance that compliance with the demand would reduce the risk to the hostage. “[T]he consequence of such a holding may well be to encourage the use of hostages for such purposes, thereby generally increasing the risk to invitees upon *822business premises. If a duty to comply exists, the occupier of the premises would have little choice in determining whether to comply with the criminal demand and surrender the money or to refuse the demand and be held liable in a civil action for damages brought by or on behalf of the hostage. The existence of this dilemma and knowledge of it by those who are disposed to commit such crimes will only grant to them additional leverage to enforce their criminal demands. The only persons who will clearly benefit from the imposition of such a duty are the criminals. In this particular case the result may appear to be harsh and unjust, but, for the protection of future business invitees, we cannot afford to extend to the criminal another weapon in his arsenal.” (Boyd v. Racine Currency Exchange, Inc., supra, 306 N.E.2d 39, 42.)

The Court of Appeal here disagreed with Vandermost that imposing a duty on a shopowner to comply with a robber’s demands would lead to increased hostage taking, declining to assume that street criminals are aware of developments in tort law and would therefore have reason to believe that taking a hostage would ensure compliance by the robbery victim. The court reasoned that, if robbers are aware of prevailing wisdom, that wisdom is that one should not resist the demands of an armed robber. Therefore the consequence to the community of recognizing a duty to comply would protect patrons from the increased risk of harm created by “misguided attempts to resist or overwhelm an armed robber.” The court concluded that the value of human life and safety outweighed the interest the retailer had in frustrating the robber’s efforts to take property.

III

Discussion

The rule which plaintiff asks us to refine and apply here was set out more than 30 years ago in the Restatement Second of Torts:

“(1) A common carrier is under a duty to its passengers to take reasonable action

“(a) to protect them against unreasonable risk of physical harm, . . .

“(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.” (Rest.2d Torts, § 314A, italics added (section 314A).)

*823Section 314A identifies “special relations” which give rise to a duty to protect another. Section 344 of the Restatement Second of Torts expands on that duty as it applies to business operators.

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure to the possessor to exercise reasonable care to

“(a) discover that such acts are being done or are likely to be done, or

“(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” (Rest.2d Torts, § 344 (section 344).)

Comment f to section 344 further explicates its intent: “Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.” (§ 344, com. f, pp. 225-226.)

Where a warning of danger is not adequate to protect a patron from intentional harmful acts of a third party, a landowner must “exercise reasonable care to use such means of protection as are available.” (§ 344, com. d, p. 225.) When criminal conduct is ongoing, that duty requires that the landowner or occupier take such appropriate action as is reasonable under the circumstances to protect patrons. (Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d 114, 124-125.)

The Restatement rule continues to be the generally accepted test of liability of a business owner for injuries on the business premises caused by third party criminal conduct. A land occupier “must act as a reasonable person to avoid harm from the negligence of contractors and concessionaires as to activities on the land, as well as that of other persons who have entered it, and even from intentional attacks on the part of such third persons. He is *824required to take action when he has reason to believe, from what he has observed or from past experience, that the conduct of the other will be dangerous to the invitee, but not if there is no reason to anticipate a problem.” (Prosser & Keeton, Torts (5th ed. 1984) Invitees, § 61, p. 428, fns. omitted.)

It is true as the dissent notes, that the standard of a “reasonable prudent person under the circumstances” is the general standard of care. It is also true, however, as Justice Kennard acknowledged in Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, 547, but does not recognize here, that in particular situations a more specific standard may be established by judicial decision, statute or ordinance.

California has never recognized a duty to surrender property to an armed robber to protect others, and neither Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, nor Rowland v. Christian, supra, 69 Cal.2d 108, in which we applied the general principles of negligence law to determine the duty of a landowner to prevent injury to persons present on the land, resolves the question presented here. Those cases did not consider whether a shopowner must comply with a robber’s unlawful demand for money in an effort to avoid threatened harm to third persons. The situation is not comparable to that of a shopkeeper who, on the basis of experience, has reason to know that potentially injurious unlawful conduct may occur in the future and for that reason has a duty to take action to deter or prevent that conduct. Neither the Restatement rules nor our past decisions create a duty to acquiesce in an unlawful demand for the surrender of property.

While this court has not expressly considered the duty of a landowner or occupier whose premises are open to the public when faced with an armed robber, no state has held that the law imposes a duty to comply with a robber’s demands. While some hold that a shopkeeper may actively resist the robbery attempt only if the resistance is reasonable in light of the threat to third persons, none hold that the duty to avoid harm to patrons or others on the premises is breached if the shopkeeper simply refuses to surrender property. Although there was no active resistance to the robber in this case, decisions in which the shopkeeper or employee did resist are instructive. None of those which hold that resistance may be unreasonable in some circumstances suggest that a shopkeeper who does not actively resist or intentionally engage in other provocative conduct has breached a duty to a patron, and the majority of courts which have considered the question hold that active resistance is permitted.

The Indiana appellate court concluded that resistance was in the public interest even in situations where it resulted in harm to third parties. “There *825is, and must continue to be, a great public interest in the prevention of crime and in the speedy apprehension of criminals. To that end the victim of a crime, as vicious as armed robbery, during the course of such criminal act, is excused, justified and to be held privileged from ordinary resistance which might otherwise cause actionable damage.” (Yingst v. Pratt (1966) 139 Ind.App. 695, 700 [220 N.E.2d 276, 279].)

In Schubowsky v. Hearn Food Store, Inc. (Fla.Dist.Ct.App. 1971) 247 So.2d 484: “The defendants’ employee was privileged and justified in defending his own life and the employers’ property when faced by the armed robbers. In resisting the robbers, the proprietor had justification over and above an ordinary elective act entailing risk to a third person. When an opportunity arose to get the ‘drop’ on the robbers, the proprietor was entitled to act upon it in resistance of the robbery. The fact that in the course of his resistance, which succeeded in averting the robbery, the customer who was present was shot by one of the robbers, does not operate to negative the justification of the proprietor to so act in such circumstances. A victim of a violent crime, such as armed robbery, is justified and privileged against liability for an injury which may result from his resistance which otherwise could cause actionable damage.”

The Arizona court held in Bennett v. Estate of Baker (1976) 27 Ariz. App. 596 [557 P.2d 195] that “no duty to accede to criminal demands should be imposed. . . . [Defendant bartender] was faced with two alternatives. He could either yield the right and privilege of protecting his property, or he could assert that same right and privilege by attempting to resist the crime being perpetrated upon him.” (557 P.2d at p. 198.)

In Helms v. Harris (Tex.Civ.App. 1955) 281 S.W.2d 770, a patron was shot when a storekeeper resisted an armed robbery. Liability was not imposed because, in the view of that court, the defendant’s actions were not the proximate cause of plaintiff’s injury and it was not foreseeable that his conduct would lead to the injury. The court recognized that liability might be found in other circumstances. “Acts of self-defense or in defense of one’s property have always been in accord with the public policy of Texas, and those persons having sufficient courage to so act legally enjoy the privilege. It is only when acts in self-defense or in defense of one’s property are committed under circumstances Where the actor should realize that such acts create an unreasonable risk of causing harm to innocent third parties that such third parties may subject the actor to liability.” (Id. at pp. 771-772.)

Other courts also balance the right of a store owner to take such action as is deemed appropriate to protect the owner and his property against the duty *826of the owner to prevent foreseeable injury to customers when resisting a robbery. In Genovay v. Fox (1958) 50 N.J. Super.Ct. 538 [143 A.2d 229] (revd. on other grounds (1959) 29 N.J. 436 [149 A.2d 212]), the court upheld a finding of liability, but did so where the defendant and others confronted and attempted to resist an armed robber. An armed gunman held both employees and patrons of a bowling alley at gunpoint, herding them into the area in which a safe was located, and ordered the owner to open the safe. While the hostages were being moved, two employees escaped. When the safe was opened, the owner removed some cash which he placed in a closet, and then told the robber that the remaining money was in a box that was bolted to the safe. The robber would have to take it out himself. When the robber hesitated, one hostage tackled him and was shot and killed. The plaintiff, another hostage, then wrestled with the gunman and was himself injured.

Plaintiff’s theory was that once the robbery was underway, the defendant had a duty to refrain from conduct that might have the effect of inducing or increasing the likelihood of resistance because such activity would create an unreasonable risk of serious injury or death. In assessing the reasonableness of the defendant’s conduct, the court considered both the risk of harm it posed to others and the utility of the conduct. It assumed that the defendant had increased the risk of serious injury to the patrons appreciably, and recognized that protection of property and frustration of crime could be offered as justification in terms of social utility. The emergency situation was also a factor, but that was tempered if the defendant’s activity was designed to entrap the robber. Weighing these factors, the court concluded; “[T]he seriousness of the risk of grave injury or death inherent in the confrontation of the group of men in defendant’s company by the armed robber was such that there cannot be said to have been any right on defendant’s part as a matter of law to take any measures he might choose to frustrate the gunman and secure his capture without regard to the effect of such actions on the safety of the others present. The social utility of such objectives was for the consideration of the jury in forming an over-all judgment as to whether what they concluded the defendant had done or caused to be done constituted reasonable conduct, in the light of all the circumstances, including the hazards to which defendant’s companions were exposed. The value of human life and of the interest of the individual in freedom from serious bodily injury weigh sufficiently heavily in the judicial scales to preclude a determination as a matter of law that they may be disregarded simply because the defendant’s activity serves to frustrate the successful accomplishment of a felonious act and to save his property from loss.” (Genovay v. Fox, supra, 143 A.2d 229, 239-240.)

*827The United States Court of Appeals for the Tenth Circuit, applying Kansas law (Kimple v. Foster (1970) 205 Kan. 415 [469 P.2d 281]), held in Kelly v. Kroger Company (10th Cir. 1973) 484 F.2d 1362, that a land occupier has a duty to protect customers from foreseeable harm during an armed robbery. There a robber took a patron hostage during the robbery of a grocery store. He seized the patron, whom he used as a shield, when police responded to a silent alarm triggered by store employees, entered, and shot at the robber. The robber forced the patron to accompany him as he attempted to escape with police in pursuit, and then shot the patron, killing her. The theory of the complaint was that the defendant was negligent in actions taken during the robbery which increased the risk of harm to patrons. The court concluded that in the situation that had developed, the manager of the store should not have taken action which increased the hazard and in fact caused the injury. The foreseeability of the injury was a decisive factor in the decision as the court emphasized that the defendant had issued a pamphlet advising employees what they should do in a holdup. The pamphlet said that nothing should be done that would excite or startle a robber, and that no verbal alarm should be given in the street because to do so would greatly increase the probability of injury.

The North Carolina Court of Appeals employed similar reasoning, citing Kelly v. Kroger Company, supra, 484 F.2d 1362, in Helms v. Church’s Fried Chicken, Inc. (1986) 81 N.C.App. 427 [344 S.E.2d 349, 351], where it affirmed “the general principle that a defendant owes a duty not to increase foreseeable risk of harm to another." There a fast-food store employee loudly told a departing customer to call the police because the establishment was being robbed. The robber thereupon assaulted the customer. The court held that if the employee’s action increased the hazard to patrons, and was negligent under the circumstances, liability could be imposed.

The Kentucky Court of Appeals considered and rejected a claim that employees of a shopkeeper protecting the owner’s property had a duty to patrons to comply with a robber’s demands in Adkins v. Ashland Supermarkets, Inc. (Ky.Ct.App. 1978) 569 S.W.2d 698. The complaint alleged that employees of a grocery store disobeyed orders of an armed robber. That action and “quarrelsome” statements provoked the robber until he discharged his pistol, killing the “store operator” and wounding the plaintiff and another. (Id. at p. 699.) The court held that the operator’s duty to keep the premises reasonably safe for invitees did not include a duty to comply with the robber’s demands to avoid increasing the risks of criminal conduct. The court held that store operators had the right to resist, verbally or physically, to save themselves and/or their property, and were not negligent in doing so. *828The court also indicated agreement with Bennett v. Estate of Baker, supra, 557 P.2d 195, in which the court reasoned, as did the Vandermost court, that compliance with the demands of a criminal does not offer sufficient assurance that the risk to an invitee will be substantially reduced. Therefore, only the criminal would benefit from imposition of a duty to comply. Finally, it concluded as did the Vandermost court “that to hold otherwise would abandon or so weaken the objective of social utility that the store owners and proprietors would be coerced into offering total acquiescence to armed robbers for fear of civil litigation which, in effect, furnishes a criminal with an additional coercive advantage.” (Adkins v. Ashland Supermarkets, Inc., supra, 569 S.W.2d at p. 700.)

The Illinois appellate court reached the same conclusion in Bence v. Crawford Sav. & Loan Ass’n (1980) 80 Ill.App.3d 491 [35 Ill.Dec. 902, 400 N.E.2d 39], following the reasoning of the Illinois Supreme Court in Boyd v. Racine Currency Exchange, Inc., supra, 306 N.E.2d 39, on which the Vandermost court also relied, and that of the New Jersey Supreme Court in Goldberg v. Housing Auth. of Newark (1962) 38 N.J. 578 [186 A.2d 291, 10 A.L.R.3d 595]. These courts concluded that foreseeability of the event alone was not determinative. The New Jersey court held that existence of a duty was “ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.” (186 A.2d at p. 293.) The Bence circumstances presented a variation on the duty to acquiesce questions we face here. There, robbers panicked and shot a bank customer when bank employees failed to activate a buzzer that would have allowed the robbers to exit an electronic door following a robbery. The court concluded that it would be unfair to impose liability for the criminal acts of the robbers because a buzzer-activated electronic door was in use. The defendant was not under a duty to deactivate the buzzer-controlled exit.

Plaintiff argues that when a patron is held hostage by an armed robber, a shopkeeper should have a duty to comply with the robber’s demands in order to prevent possible injury to the patron. This obligation, she argues, is imposed by Civil Code section 1714, subdivision (a): “Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person . . . .” Civil Code section 1714 states a civil law principle that is the foundation of our negligence law, whether developed under the statutory command or from the common law. (Rowland v. Christian, supra, 69 Cal.2d 108, 112.) It has never been construed as imposing a duty to comply with an unlawful demand that property be surrendered, however.

*829The Vandermost reasoning is urged by KFC and amicus curiae American International Group, Inc., who contend that there is never a duty to comply with the demands of a robber even when the robber is holding and threatening a hostage. They argue that there is no basis for an assumption that complying with a robber’s demands would guarantee the safety of a hostage. Robbers are unpredictable and often injure victims and others even though there has been no resistance. Imposition of a duty to comply would be contrary to the public interest as it would encourage hostage taking by robbers who become aware that such conduct assures compliance with their demands.

We agree with KFC that no duty to comply with a robber’s unlawful demands should be imposed on a shopkeeper on the theory that compliance may lessen the danger to other persons on the premises. Both article I, section 1 of the California Constitution2 and Civil Code section 503 recognize the right of any person to defend property with reasonable force. We are not faced here with a situation in which KFC’s employee engaged in active resistance to the robbery. Therefore, we need not decide if that right is qualified by the duty to avoid injury to third persons or if a duty exists to avoid physical resistance that might provoke a robber into carrying out a threat to harm third persons. It is enough to observe that recognizing a duty to comply with an unlawful demand to surrender property would be inconsistent with the public policy reflected in article I, section 1 of the California Constitution and Civil Code section 50. Because we are not faced with a situation in which active resistance to a robbery resulted in injury to a third person our holding is narrow. We hold only that there is no duty to comply with a robber’s unlawful demand for the surrender of property. Simple refusal to obey does not breach any duty to third persons present on the premises.

As Vandermost, supra, 164 Cal.App.3d 771 and Boyd v. Racine Currency Exchange, Inc., supra, 306 N.E.2d 39, held, the public interest would not be served by recognition of a duty to comply with a robber’s demands. Unlike the Court of Appeal, we are not satisfied that persons who commit armed *830robbery would not become aware of and be encouraged by the existence of such a duty. Moreover, we have no basis upon which to conclude that compliance actually prevents injury to robbery victims. The public as a whole is much better served if would-be robbers are deterred by knowledge that their victims have no legal duty to comply with the robber’s demands and are under no duty to surrender their property in order to protect third persons from possible injury.

IV

Conclusion

The judgment of the Court of Appeal is reversed.

George, C. J., Chin, J., and Brown, J., concurred.

MOSK, J.

I dissent.

In Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114 [52 Cal.Rptr. 561, 416 P.2d 793] (hereafter Taylor), we held that, under the common law of California, “the proprietor of a business establishment” owes a “general duty” to his “business invitees” (id. at p. 121), including a specific duty to “exercise reasonable care for their safety” (ibid.) against, among other things, criminal conduct by third persons (id. at p. 124).

It follows that, under our common law, a business proprietor may or may not be under a duty to accede to the demands of a robber when his customers are present. Perhaps more correctly, he may or may not breach his duty to exercise reasonable care for their safety by refusing. Each case depends on its own facts. To be sure, in many if not most, as law enforcement authorities counsel, he should yield. But, in some perhaps, he need not.

Today, the majority announce a harsh and unjust rule that a business proprietor is never under a duty to accede to the demands of a robber when his customers are present, that he never breaches his duty to exercise reasonable care for their safety by refusing. They conclude, underneath their words, that a business proprietor is immune as a matter of law insofar as his customers find themselves in the presence of a robber. That is to say, a business proprietor is never required to subordinate any of his own property interests—no matter how insignificant the object and no matter how slightly it is jeopardized—to his customers’ safety—no matter how many they are and no matter how gravely they are threatened. To expose such a conclusion is to prove its unsoundness.

*831In support of their harsh and unjust rule, the majority invoke “public policy,” but to no avail. Whether the immunity they grant to business proprietors will indeed deter robbers, as they assert by ipse dixit without empirical support, depends on whether street criminals are in fact rational decisionmakers—a proposition that they themselves effectively reject when they imply that “[r]obbers are unpredictable” (maj. opn., ante, at p. 829).

In support of their harsh and unjust rule, the majority also invoke article I, section 1 of the California Constitution and section 50 of the Civil Code, also to no avail. Section 50 states, in substance, that it is a “personal right[]” (Civ. Code, § 43) to use “[a]ny necessary force ... to protect” one’s “property” “from wrongful injury” (id,., § 50). But section 43 of the same code makes plain that such a “personal right[] ” is not absolute: rather, it is “subject to the qualifications and restrictions provided by law . . . .” (Id., § 43.) One such “qualification” or “restriction” is found in Taylor's common law rule that a business proprietor owes a duty to exercise reasonable care for the safety of his customers against criminal conduct by third persons. For its part, article I, section 1 declares: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Cal. Const., art. I, § 1.) “[I]nalienable rights” are not ipso facto absolute rights. That is true of all the enumerated rights—including those relating to property (e.g., Max Factor & Co. v. Kunsman (1936) 5 Cal.2d 446, 458 [55 P.2d 177], affd. sub nom. Pep Boys v. Pyroil Sales Co. (1936) 299 U.S. 198 [81 L.Ed. 122, 57 S.Ct. 147]).

For the reasons stated above, I would affirm the judgment of the Court of Appeal.

KENNARD, J., Dissenting.

In this case, a patron was taken hostage during a restaurant robbery. Holding a gun to the patron’s back, the robber demanded that the cashier open the cash register. The cashier refused, falsely stating that she did not have a key to the register. The robber repeated his demand and threatened to kill the patron. The cashier then complied and gave the robber the money; the robber released the patron and fled. The patron, claiming that she suffered injury from this ordeal, has now sued the restaurant for negligence.

Negligence law holds one liable for failing to use reasonable care to avoid harm to others only in those cases where one has a duty to use reasonable care. To determine liability, it is necessary to distinguish between the *832separate questions of whether a duty exists and whether a duty that exists has been breached by the failure to use the care that a reasonable person would have used under the circumstances. Whether a defendant has a duty to use reasonable care to avoid harm to the plaintiff is decided as a matter of law by the court. If the court finds that a duty exists, the next question is whether the defendant used reasonable care. It is generally the jury, as trier of fact, that decides whether the defendant used the care that a reasonable person would use under the circumstances to avoid harm to the plaintiff.

Here, the majority and I agree that the restaurant had a duty to take reasonable steps to protect its patrons from foreseeable assault by third parties on the premises. This court has long recognized such a duty. (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114 [52 Cal.Rptr. 561, 416 P.2d 793].) Given this duty, the question of whether the restaurant breached this duty and failed to use due care when its cashier initially refused to comply with the robber’s demands is a question for the jury. Because the restaurant has not shown that reasonable minds could only decide this issue in its favor, the trial court and the Court of Appeal correctly concluded that the restaurant was not entitled to summary judgment on this issue.

The majority reaches a contrary result; it errs, however, by mistakenly framing the issue before us as an issue of duty to be decided by the court as a matter of law rather than as an issue of reasonable care for the jury. For the majority, the issue is whether a business proprietor always (or never) has a “duty” to comply with the demands of a robber who threatens a customer with harm; the majority concludes that a business proprietor need never protect its customers by doing so.

The issue before us, however, is properly a question of whether defendant’s cashier, in initially refusing to comply with the robber’s demand, breached the reasonable person standard of care, not whether defendant was under a “duty” to follow a prescribed course of conduct. By framing the issue as a question of duty, the majority usurps the jury’s historic function in a negligence case to determine the reasonableness of defendant’s conduct under the surrounding circumstances.

I

Plaintiff Kathy Brown was a customer at a restaurant, owned by Kentucky Fried Chicken of California, Inc. (KFC), when an armed robber entered, put a gun to Brown’s back, and demanded money from the restaurant and her. Brown complied; the store cashier did not, instead falsely telling the robber that she would have to get a key for the cash register from the back of the *833restaurant. The robber became agitated and angry, shoved his gun in Brown’s back, and told the cashier he would shoot Brown unless the cashier “quit playing games” and opened the register immediately. Brown screamed that the cashier should open the register. The cashier then opened the register and gave the money to the robber, who fled.

Brown sued KFC, seeking damages for personal injury. Brown alleged that KFC’s cashier acted negligently by initially refusing to comply with the robber’s demands and that KFC had failed to provide proper security and to adequately train its employees. KFC moved for summary judgment, arguing that it had no duty to protect Brown against criminal acts by third parties in the absence of prior similar incidents or to comply with the requests of criminals, and that even if a duty was owed to Brown, KFC had not breached it.

The trial court denied KFC’s motion for summary judgment. KFC petitioned the Court of Appeal for a writ of mandate to compel the trial court to grant summary judgment for it. The Court of Appeal denied the petition in a written opinion.

II

A finding of negligence depends on two determinations. The first determination, a question of law for the court, is this: Does the defendant have a duty to protect the plaintiff from a particular type of harm? (See Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 [25 Cal.Rptr.2d 137, 863 P.2d 207].) The second determination, necessary only if a duty is found to exist, is this: Did the defendant’s conduct satisfy the standard of care that the duty imposes? (See ibid.; Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167, 27 A.L.R.5th 899].) (Ordinarily, the standard is to act as a reasonable person would under similar circumstances. See Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, 546.) This is generally a question for the jury as trier of fact. (Ibid.) 1

With respect to the question of duty, this court in Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d 114, recognized a business proprietor’s duty to use reasonable care to protect customers who visit its premises from assault by third parties. Taylor held that “the duty owed by the proprietor of a business establishment to business invitees” includes the duty to “exercise *834reasonable care for their safety,” and specifically “the duty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.” (Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d 114, 121; accord, Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, 674; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 123 [211 Cal.Rptr. 356, 695 P.2d 653]; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806-807 [205 Cal.Rptr. 842, 685 P.2d 1193].) The majority acknowledges the continuing validity of Taylor, as the majority also acknowledges, section 344 of the Restatement Second of Torts, which the Taylor court cited with approval, similarly recognizes that business proprietors have a duty to “exercise reasonable care ... [f] ... to protect [their patrons] against” the “harmful acts of third persons.”

“[T]he duty to take affirmative action to control the wrongful acts of third persons which threaten invitees” (Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d 114,121) does not end once an attack on a patron is in progress. This duty obligated KFC not only to take reasonable care to protect against such wrongful acts by third persons but also, if such acts occurred nonetheless, to take reasonable care to avoid increasing the risk of injury to its patrons from those acts. (See Trujillo v. G.A. Enterprises, Inc. (1995) 36 Cal.App.4th 1105, 1109 [43 Cal.Rptr.2d 36]; Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 199, 201 [208 Cal.Rptr. 384]; Rest.2d Torts, § 344, com. f, p. 225 [proprietor’s duty to use reasonable care to protect patrons from acts of third persons exists when proprietor “knows or has reason to know that the acts of the third person are occurring”].) Other courts have similarly required business proprietors to use reasonable care to avoid increasing the risk to patrons during a robbery. (Helms v. Church’s Fried Chicken, Inc. (1986) 81 N.C.App. 427 [344 S.E.2d 349, 351] [applying “the general principle that a defendant owes a duty not to increase foreseeable risk of harm to another” to a business proprietor’s conduct during a robbery]; Kelly v. Kroger Company (10th Cir. 1973) 484 F.2d 1362, 1364; Helms v. Harris (Tex.Civ.App. 1955) 281 S.W.2d 770, 772 [“when acts in self-defense or in defense of one’s property are committed under circumstances where the actor should realize that such acts create an unreasonable risk of causing harm to innocent third parties . . . such third parties may subject the actor to liability”]; see Annot., Liability of Storekeeper for Death of or Injury to Customer in Course of Robbery (1976) 72 A.L.R.3d 1269, 1273 [“if a proprietor acts, or fails to act, against an armed robber when he should reasonably foresee that his action, or inaction, could proximately result in injury to the customer, then the proprietor would presumably be liable for such injuries”].)

*835Given the existence of KFC’s duty to use reasonable care to prevent harm to Brown during the robbery, whether it and its employees met the standard and acted reasonably is a question for the jury, unless reasonable minds could not differ on the question. (Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, 546.) The answer to that question depends on the circumstances of the particular case, and cannot be determined as a rule of law that, regardless of the surrounding circumstances, applies to all defendants presented with a similar risk of harm to another. “Because application of [the reasonable person standard] is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances.” (Flowers v, Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 [35 Cal.Rptr.2d 685, 884 P.2d 142].)

Accordingly, the reasonable person standard of care may require less care during a robbery, or other criminal event, than it does under calmer and more composed circumstances. Robberies are stressful and unpredictable encounters, frequently fast paced, in which those being robbed are forced to decide and act, often instantaneously, upon necessarily incomplete information about the situation that confronts them. Under such circumstances, the scope of what is reasonable is necessarily wide, and often there may be a number of alternative courses of action that, given the circumstances, will be equally reasonable.

The standard California jury instructions on negligence include an instruction recognizing that a person confronting a sudden danger “is not expected nor required to use the same judgment and prudence that is required in the exercise of ordinary care in calmer and more deliberate moments.” (BAJI No. 4.40 (8th ed. 1994).) The instruction explains: “[His] [Her] duty is to exercise the care that an ordinarily prudent person would exercise in the same situation. If at that moment [he] [she] does what appears to [him] [her] to be the best thing to do, and if [his] [her] choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, [he] [she] does all the law requires of [him] [her]. This is true even though in the light of after-events, it should appear that a different course would have been better and safer.” (Ibid.)

The Restatement Second of Torts similarly recognizes that actions may be reasonable in an emergency that might be unreasonable under calmer circumstances that would permit the actor to gather more information and analyze it deliberately and reflectively. (Rest.2d Torts, § 296 [“In determining whether conduct is negligent toward another, the fact that the actor is *836confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action.”]; accord, Helms v. Church’s Fried Chicken, Inc., supra, 344 S.E.2d 349, 352; Prosser & Keeton on Torts (5th ed. 1984) § 33, pp. 196-197; Annot., Liability of Storekeeper for Death of or Injury to Customer in Course of Robbery, supra, 72 A.L.R.3d 1269, 1274 [“the occurrence of an armed robbery puts all persons involved under a considerable state of stress, and in determining the standard of care owed by á proprietor toward his customers during an armed robbery of the premises, the so-called ‘sudden emergency rule’ should thus be considered, as it takes into account, in establishing the standard of care, the stress to which the proprietor, as well as other persons on the premises, are being subjected” (fn. omitted)].)

The “inherently situational” reasonable person standard of conduct thus gives business proprietors a wide latitude of discretion in responding to robberies, while nonetheless allowing for liability in those few cases where the proprietor acts unreasonably and causes harm to a customer. The standard of conduct does not require extraordinary heroics or superhuman reactions. In addition, a plaintiff must satisfy the requirement of causation by proving that the proprietor’s conduct, not just that of the robber, was a legal cause of the injury.

In this case, KFC moved for summary judgment on two grounds: (1) It “did not owe plaintiff [either] a duty to protect her from criminal conduct of third persons where there was no knowledge of or occurrence of prior similar criminal acts on the premises” or a duty to comply with the robber’s demands; and (2) even if a duty existed, KFC did not breach that duty. The duty of care that this court recognized in Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d 114, 121, disposes of the first ground. Once the robbery was in progress the existence of “wrongful acts of third persons” (ibid.) was a certainty and KFC had a duty not to unreasonably increase the risk of harm to Brown. As to the second ground, to prevail on summary judgment, KFC must establish that rational jurors could reach no other conclusion than that KFC and its employees used reasonable care to protect KFC’s patron, Brown. (See Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, 546; Code Civ. Proc., § 437c.)

KFC has not done so. The only evidence that KFC submitted in support of its summary judgment motion was the account of the robbery given by Brown at her deposition and a declaration by a KFC employee stating there had been no previous robberies at the restaurant. This evidence does not carry KFC’s burden of demonstrating that no rational juror could conclude *837that KFC’s cashier acted unreasonably in initially refusing the robber’s demand and attempting to deceive him by telling him falsely that she could not open the cash register. (See Trujillo v. G.A. Enterprises, Inc., supra, 36 Cal.App.4th 1105, 1108-1109 [whether security guard took reasonable steps to protect patron of fast-food restaurant during assault could not be resolved on summary judgment]; Marois v. Royal Investigation & Patrol, Inc., supra, 162 Cal.App.3d 193, 202 [same; “Where an individual is being physically assaulted, or where another individual is approached by a bat-wielding assailant, it requires no mastery of metaphysical philosophy or economic risk analysis to appreciate the strong possibility of serious injury. The only question in this case is whether the security guards responded reasonably to this clearly foreseeable risk.”].)

Ill

The majority takes a different approach. Instead of recognizing that the reasonableness of the cashier’s conduct presents a jury question of whether the standard of care was breached, the majority reformulates it as a question of duty for the court: Does “the law impose[] a duty to comply with a robber’s demands”? (Maj. opn., ante, at p. 824.)

In doing so, the majority confuses the legal question (for the court) of whether KFC had a duty to protect patron Brown from harm with the question (for the jury) of whether KFC has complied with the standard of conduct imposed by that duty by taking reasonable care not to increase the risk of harm to Brown. By confusing the separate questions of whether a duty exists and whether the standard of care has been breached, the majority makes the unspoken and erroneous assumption that the only alternatives are either to require business proprietors to comply with a robber’s demands in every case or in no case.

The focus of the duty analysis should not be on the details of a defendant’s conduct. The pertinent inquiry is whether a defendant must take steps to avoid causing a given type of harm to the victim. (Coffee v. McDonnell-Douglas Corp. (1972) 8 Cal.3d 551, 558-559 [105 Cal.Rptr. 358, 503 P.2d 1366].) What steps a defendant must take to avoid the harm is a question of whether the defendant has met the standard of care by acting reasonably under the circumstances; also, it is a question that arises only after a duty has been found to exist. (Id. at pp. 558-560.)

Once the majority concludes as it does that KFC and its employees owed patron Brown a duty to take reasonable steps to protect her while she was in the restaurant from the foreseeable criminal acts of others, the question *838whether KFC’s cashier should have complied with the robber’s demands immediately rather than initially refusing to do so is a question of whether the cashier acted reasonably under the circumstances and thereby satisfied the standard of care. This, as I indicated earlier, is a question for the jury, not a question of law for the court: “Once the court has formulated the standard [of care], its application to the facts of the case is a task for the trier of fact if reasonable minds might differ as to whether the defendant’s conduct has conformed to the standard.” (Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, 546; see also Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1061 [232 Cal.Rptr. 528, 728 P.2d 1163] [“the trier of fact determines whether a defendant’s conduct satisfies the applicable standard of care”]; Coffee v. McDonnell-Douglas Corp., supra, 8 Cal.3d 551, 558-560; Weiner, The Civil Jury Trial and the Law-Fact Distinction (1966) 54 Cal.L.Rev. 1867, 1876-1882.) The majority errs in transforming this question into an issue of duty to be answered by the court.2

*839It is always possible to recast any question of whether the standard of care has been breached as a question of “duty,” as the majority does here.3 Thus, instead of asking whether an automobile driver who failed to stop in time used the care of a reasonable driver under like circumstances, we could ask whether the driver had a “duty” to begin braking sooner; instead of asking whether a doctor treated a feverish patient with the care of a reasonable physician we could ask whether the doctor had a “duty” to administer penicillin. If a court does so, however, it abandons the flexibility inherent in the application of the reasonable person standard and instead dictates a rigid, inflexible rule of conduct that applies not only to the defendant in the case before it but also to all defendants in future cases who are confronted by a risk of the same type of harm to another, regardless of differences in the surrounding circumstances. For good reason, most courts have rejected this course.

When courts impose a duty on a defendant, they generally do so without imposing a rigid, specific, and inflexible course of conduct. “In most cases, courts have fixed no standard of care for tort liability more precise than that of a reasonably prudent person under like circumstances.” (Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, 546.) As this court has recognized, the reasonable person standard on which negligence liability is founded necessarily requires an individualized examination of a particular course of conduct and an individualized determination of its reasonableness. “What constitutes ‘ordinary care’ under the facts of any particular case is usually a question for the jury, which must view the conduct as a whole in the light of all the circumstances. Thus, it is common practice for the jmy to determine the standard of conduct to be applied within the compass of the broad rule that the prescribed conduct must conform to that of a ‘reasonably prudent [person] under the circumstances.’ ” (Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 215 [331 P.2d 617]; see also Lucas v. Southern Pacific Co. (1971) 19 Cal.App.3d 124, 137-140 [96 Cal.Rptr. 356]; Weiner, The Civil Jury Trial and the Law-Fact Distinction, supra, 54 Cal.L.Rev. 1867, 1883-1885.)

*840There are at least three good reasons why negligence law has allocated the judgment of the reasonableness of a defendant’s conduct to the jury as a matter for case-by-case determination, rather than having courts, under the rubric of “duty,” establish as a matter of law fixed and unvarying rules of conduct for various categories of human activity. The first reason arises from the irreducible variety of circumstances which may surround an event that causes harm to someone. Because of this variety, an individualized rather than categorical determination of what constitutes reasonable care to avoid a particular type of harm usually will provide a more precise measure of what conduct is reasonable under the circumstances. (Prosser & Keeton on Torts, supra, § 37, p. 237 [“Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in in each particular case.”].)

This court in the past has repeatedly recognized that judging the reasonableness of a defendant’s conduct on a case-by-case basis provides a more precise determination of the contours of liability: “Standards of care are typically relative; rules of law are basically absolute. Hence, in regard to negligence, any attempt to screen factual conduct into legal classifications through a sieve of absolute law will be impracticable whenever the related circumstances admit of materially conflicting inferences. In other words, the actor’s conduct must always be gauged in relation to all the other material circumstances surrounding it . . . (Toschi v. Christian, supra, 24 Cal.2d 354, 360.)

“If the term ‘negligence’ signified an absolute quantity or thing to be measured in all cases in accordance with some precise standard, much of the difficulty which besets courts in the solution of this class of cases would be at once dissipated. But, unfortunately, it does not. Negligence is not absolute, but is a thing which is always relative to the particular circumstances of which it is sought to be predicated. For this reason it is very rare that a set of circumstances is presented which enables a court to say as matter of law that negligence has been shown. As a very general rule, it is a question of fact for the jury—an inference to be deduced from the circumstances . . . .” (Fox v. Oakland Con. St. Ry. (1897) 118 Cal. 55, 61-62 [50 P. 25]; see also Seller v. Market-Street Ry. Co. (1903) 139 Cal. 268, 271 [72 P. 1006] [Negligence “is a question of fact for the jury, an inference to be deduced from the circumstances of each particular case, and it is only where the deduction to be drawn is inevitably that of negligence that the court is authorized to withdraw the question from the jury.”].)

The greater accuracy that results from determining the propriety of the defendant’s conduct by application of the reasonable person standard of care *841advances the economic function of tort law. The reasonable person standard of negligence liability, by asking whether a reasonable person would have taken additional precautions under the circumstances, examines how the risk of harm from the defendant’s activity and the benefits of conducting the activity vary depending upon the precautions taken to avoid the harm. (See Landes & Posner, The Economic Structure of Tort Law (1987) pp. 58-65, 85-87; see also Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 47 [123 Cal.Rptr. 468, 539 P.2d 36] [“Liability is imposed only if the risk of harm resulting from the act is deemed unreasonable—i.e., if the gravity and likelihood of the danger outweigh the utility of the conduct involved.”]; Prosser & Keeton on Torts, supra, § 31, p. 173 & fn. 46.) In economic terms, it encourages the optimal level of care on the part of both victims and injurers, optimal being defined as the point at which the cost of any additional precautions will be greater than the benefit of avoiding additional injury. (See Landes & Posner, The Economic Structure of Tort Law, supra, pp. 58-65, 85-87; Prosser & Keeton on Torts, supra, § 31, p. 173 & fn. 46.) An individualized determination of reasonableness increases efficiency because it allows for the optimal level of care to be determined under the circumstances of each case; it asks not whether in general the cost of additional precautions would be greater than the cost of additional injuries but whether, under the specific circumstances of the case at hand, additional precautions would have been cost effective. (It asks this question, of course, not formally but intuitively by asking whether a reasonable person would have taken additional precautions to avoid the accident. See Landes & Posner, The Economic Structure of Tort Law, supra, pp. 23, 85-87, 96-107; Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 47.) To fix the conduct required to avoid a given harm as an absolute standard that does not vary with the accompanying circumstances, as the majority does here, inevitably means that in numerous cases the law will require something other than optimal care. (See Prosser & Keeton on Torts, supra, § 31, p. 173 [Because of the cost-benefit balancing required by the reasonable person standard, “it is usually very difficult, and often simply not possible, to reduce negligence to any definite rules; it is ‘relative to the need and the occasion,’ and conduct which would be proper under some circumstances becomes negligence under others.” (Fns. omitted.)].)

There is a second reason why it is preferable to leave the question of what conduct is required under the circumstances to the jury for an individualized determination, rather than attempting to mandate detailed rules of conduct categorically. Doing so allows successive juries to reassess what precautions are reasonable as social, economic, and technological conditions change over time: “[R]oom is left for a change of standard when a change in the physical *842conditions of life, or a change in the public valuation of the respective interests concerned, require it.” (Bohlen, Mixed Questions of Law and Fact (1924) 72 U. Pa. L.Rev. 111, 117; see also id. at pp. 119-120.) Accordingly, the reasonable person standard of care, because it does not dictate a fixed course of conduct to avoid the harm in question, encourages innovations that reduce the cost of precautions and substitutions of less costly preventative measures that are equally or more effective in avoiding the harm. By contrast, locking defendants forever into a straitjacket of prescribed conduct removes the incentive for them to lower the cost and increase the level of precautions they provide.

The third reason for allocating the determination of the reasonableness of defendant’s care to the jury in a negligence case is that the jury, in addition to providing an individualized judgment of defendant’s conduct, also has the potential to bring a wider array of practical experience and knowledge to that task than could a single individual such as a judge. The jury is a repository of collective wisdom and understanding concerning the conditions and circumstances of everyday life that it can bring to bear on the determination of what conduct is reasonable. As the conscience of the community, the jury plays an essential role in the application of the reasonable person standard of care. (See Prosser & Keeton on Torts, supra, § 32, p. 175 [the “reasonable person” is “a personification of a community ideal of reasonable behavior, determined by the jury’s social judgment”]; id., § 37, p. 237 [“the public insists that its conduct be judged in part by the [person] in the street rather than by lawyers, and the jury serves as a shock-absorber to cushion the impact of the law”].) Accordingly, “the questions of the reasonableness of the risk of harm and the application of the standard of due care to particular facts are mixed questions of law and fact (or questions of Taw application’ [citation]) which we have traditionally regarded as better answered by juries,” rather than judges. (Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 237, fn. 3 [60 Cal.Rptr. 510, 430 P.2d 68].)

Indeed, this court long ago recognized the value that a jury adds to the determination of reasonable care in a negligence case: “Our ideas as to what would be proper care vary according to temperament, knowledge, and experience. A party should not be held to the peculiar notions of the judge as to what would be ordinary care. That only can be regarded as a standard or rule which would be recognized or enforced by all learned and conscientious judges, or could be formulated into a rule. In the nature of things no such common standard can be reached in cases of negligence, where reasonable [persons] can reach opposite conclusions upon the facts. In such cases it was said in Mann v. Baltimore etc. R. R. Co., 128 Ind. 138: ‘It is said to be the *843highest effort of the law to obtain the judgment of twelve [persons] of the average of the community, comprising [individuals] of learning, [individuals] of little education, [individuals] whose learning consists only of what they have themselves seen and heard, the merchant, mechanic, the farmer, and laborer, as to whether negligence does or does not exist in the given case.’ ” (Herbert v. Southern Pacific Co. (1898) 121 Cal. 227, 229 [53 P. 651]; see also Lucas v. Southern Pacific Co., supra, 19 Cal.App.3d 124, 137 [“Appellate edicts fixing the conduct of reasonably careful [persons] . . . infringe on the jury’s power to decide what amounts to reasonable care.”].)

The United States Supreme Court has similarly noted the unique practical knowledge that a jury in a negligence case brings to the task of judging the reasonableness of conduct: “Twelve [persons] of the average of the community ... sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve [persons] know more of the common affairs of life than does one [individual], that they can draw wiser and safer conclusions from admitted facts . . . than can a single judge. [•][]... [Although the facts are undisputed it is for the jury and not for the judge to determine whether proper care was given, or whether they establish negligence.” (Railroad Company v. Stout (1873) 84 U.S. (17 Wall.) 657, 664 [21 L.Ed. 745, 749].)4

The majority here, in the course of ignoring the boundary that our decisions have established between issues of duty to be determined by the court and issues of the reasonableness of the defendant’s conduct to be determined by the jury, asserts that its holding will result in fewer robberies and is therefore preferable as a matter of policy. This assertion lacks merit. It rests on the premise that in the absence of any potential liability to patrons, business proprietors will not only refuse the demands of robbers more frequently but that their refusal to cooperate will in many cases discourage robbers by successfully denying the robbers whatever thing of value they seek. As the ultimate success of the robber in this case illustrates, however, it is unlikely that in most cases a proprietor’s refusal to cooperate will deny the robber what he seeks. It also seems unlikely that the majority’s decision will embolden business proprietors or their employees to refuse the demands *844of an armed robber at a greater rate than they would if they were under a duty to use reasonable care, for they too are in the robber’s zone of danger.5

I would instead adhere to the traditional division between duty and standard of care established by our precedents. Under that division, the issue here is whether KFC and its employees breached the standard of care by unreasonably refusing to comply with the robber’s initial demand for money, not whether as a matter of law they have a duty to comply with a robber’s demand in every case. For the reasons I have stated earlier, KFC has not demonstrated that no rational juror could conclude that KFC’s cashier acted unreasonably in refusing the robber’s demand and attempting to fool the robber; accordingly, it has not demonstrated that it is entitled to summary judgment on this ground.

Conclusion

The majority, by mischaracterizing the issue in this case as whether a defendant business proprietor has a “duty” to comply with the demands of a robber, seeks refuge in the simplicity of a categorical pronouncement. As the discussion above demonstrates, however, our prior decisions have correctly allocated the question of the reasonableness of a defendant’s conduct to the jury for an individualized determination made by applying the reasonable person standard to the circumstances of the case, rather than to the court for a categorical determination applicable to all defendants under all circumstances. That allocation is appropriate here as well.

It would seem likely that in most cases a business proprietor’s initial refusal to comply with a robber’s demand followed by immediate compliance with the demand when the robber reiterated it would not be unreasonable, in light of the stress, surprise, and uncertainty that would attend the proprietor’s decision as to how to respond to the robber. But neither I nor the majority can answer that question categorically with assurance, for none of us can anticipate all of the myriad variations in circumstance in which the issue may arise. Just as it cannot be said that as a matter of law it is always *845(or never) negligent for a doctor to fail to give penicillin to a patient with a fever, it cannot be said as a matter of law that it is never (or always) negligent for a business proprietor to increase the peril to a customer by failing to comply with a robber’s demand. Having determined that business proprietors must act reasonably to protect their customers from harm caused by third parties, this court should leave for the jury the determination of whether the conduct of KFC and its employees in this particular instance conforms to that standard.

Therefore, for the reasons stated above, I would affirm the judgment of the Court of Appeal denying KFC’s petition for a writ of mandate.

Werdegar, J., concurred.

OPINION

CHÁVEZ, Justice.

{1} In this opinion we clarify and expressly hold that foreseeability is not a factor for courts to consider when determining the existence of a duty, or when deciding to limit or eliminate an existing duty in a particular class of cases. We reaffirm our adoption of Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 comment j (2010), see Edward C. v. City of Albuquerque, 2010-NMSC-043, ¶¶ 15, 18, 148 N.M. 646, 241 P.3d 1086, and require courts to articulate specific policy reasons, unrelated to foreseeability considerations, if deciding that a defendant does not have a duty or that an existing duty should be limited. Foreseeability is a fact-intensive inquiry relevant only to breach of duty and legal cause considerations. What may not be foreseeable under one set of facts may be foreseeable under a slightly different set of facts. Therefore, foreseeability cannot be a policy argument because foreseeability is not susceptible to a categorical analysis. We do not hold that courts may never consider foreseeability; however, when a court does so, it is to analyze no-breach-of-duty or no-legal-cause as a matter of law, not whether a duty exists.

BACKGROUND

{2} In these consolidated cases, a truck crashed through the front glass of the Concentra Medical Clinic (Concentra) in the Del Sol Shopping Center (Del Sol) (collectively Defendants) in Santa Fe, killing three people and seriously injuring several others. Both groups of Plaintiffs (collectively Plaintiffs) sued Del Sol’s owners and operators, alleging that Del Sol negligently contributed to the accident by, among other things, failing to adequately post signage; failing to install speed bumps; failing to erect barriers that would have protected buildings, employees, and visitors from errant vehicles; or failing to use other traffic control methods in the parking lot. Relying on Romero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-059, ¶¶ 8-9, 146 N.M. 520, 212 P.3d 408, both district courts granted summary judgment and found that this accident “was not foreseeable” as a matter of law, and therefore found that no duty existed.

{3} On appeal, the Court of Appeals consolidated the two cases and affirmed the district courts’ common ruling on summary judgment that Defendants “had no duty to protect Plaintiffs inside the building from criminally reckless drivers.” Rodriguez v. Del Sol Shopping Ctr. Assocs., 2013-NMCA-020, ¶ 1, 297 P.3d 334, cert. granted, 2013-NMCERT-001. After an exhaustive analysis of New Mexico precedent, the Court of Appeals correctly rejected the foreseeability-driven duty analysis relied upon by the district courts, stating that it was affirming both cases based on a “policy-driven duty analysis advanced by the Restatement (Third) of Torts *53. . . and recently embraced by our New Mexico Supreme Court in Edward C. , 2010-NMSC-043, ¶ 15.” Del Sol, 2013-NMCA-020, ¶ 1. We agree with the Court of Appeals that New Mexico case law has created confusion regarding the extent to which foreseeability considerations are relevant to the legal determination of duty. Id. ¶¶ 6-11. We will not belabor the discussion of the cases that have caused the confusion, including Edward C., which noted that foreseeability plays some role, although it is limited, in the determination of duty. Instead, we take this opportunity to explain why foreseeability should not be considered when determining duty, both generally and when considering the analysis of the Court of Appeals in these cases. We overrule prior cases insofar as they conflict with this opinion’s clarification of the appropriate duty analysis in New Mexico. And because we conclude that the Court of Appeals analysis is a no-breach-of-duty analysis more than a policy-driven duty analysis, we reverse the Court of Appeals.

DISCUSSION

{4} Foreseeability and breach are questions that a jury considers when it decides whether a defendant acted reasonably under the circumstances of a case or legally caused injury to a particular plaintiff. Torres v. State, 1995-NMSC-025, ¶ 15, 119 N.M. 609, 894 P.2d 386. Juries are instructed that “[a]s the risk of danger that should reasonably be foreseen increases, the amount of care required also increases.” UJI 13-1603 NMRA. Foreseeability as it relates to breach of duty is a general analysis and does not require that the particular harm to the plaintiff have been anticipated. See Spencer v. Health Force, Inc., 2005-NMSC-002, ¶ 23, 137 N.M. 64, 107 P.3d 504 (“Foreseeability does not require that the particular consequence should have been anticipated, but rather that some general harm or consequence be foreseeable.” (internal quotation marks and citation omitted)). The argument before the jury when it is determining whether breach occurred is whether the foreseeable likelihood and severity of injuries that might have occurred due to the defendant’s conduct warranted the additional precautions argued by the plaintiff. See Ford v. Bd. of Cnty. Comm’rs, 1994-NMSC-077, ¶ 12, 118 N.M. 134, 879 P.2d 766 (holding that “the ordinary principles of negligence . . . govern a landowner’s conduct as to a licensee and invitee. A landowner or occupier of premises must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.”). These ordinary arguments relate to breach of duty and legal cause, and are not policy arguments that would justify a no-duty determination or modification of an existing duty.

{5} In these cases, the Court of Appeals framed the issue as “[w]hat duty should owner/occupants of a shopping center in New Mexico have to protect business invitees within its buildings from vehicles that depart the confines of designated parking areas?” Del Sol, 2013-NMCA-020, ¶ 12. The Court of Appeals then correctly summarizéd the law in paragraphs 13 and 14 of its opinion. Id. The owner/occupier owes a duty of ordinary care under the circumstances, Ford, 1994-NMSC-077, ¶ 12, including the duty to exercise ordinary care to prevent harmful conduct from a third person, even if the third person’s conduct is intentional, Reichert v. Atler, 1994-NMSC-056, ¶ 11, 117 N.M. 623, 875 P.2d 3-79. The duty of ordinary care applies unless the owner/occupier can *54establish a policy reason, unrelated to foreseeability considerations, that compels a limitation on the duty or an exemption from the duty to exercise ordinary care. There are a number of cases that illustrate how policy considerations limit the duty of ordinary care.

{6} In Edward C., we found a policy reason to modify, albeit minimally, the duty of ordinary care for owners/occupiers of commercial baseball stadiums. 2010-NMSC-043, ¶ 40. The owners/occupiers asked this Court to adopt the “baseball rule,” which imposes upon owners/occupiers only a limited duty of care to assure the safety of spectators. Id. ¶¶ 8-10. Under the baseball rule, the proprietor of the baseball stadium only has a duty (1) to screen the area of the field behind home plate, and (2) to a sufficient extent, to protect those spectators from being struck by á ball leaving the field of play. Id. ¶ 23. We concluded that the unique relationship between the baseball stadium owners/occupiers and their fans, along with the spectators’ desire to participate in the game by catching foul balls, warranted a modification of the duty to exercise ordinary care. Id. ¶¶ 25, 40. However, we were unwilling to modify the duty of ordinary care to the extent desired by the stadium owners/occupiers. Id. ¶¶ 8, 10, 40. Instead, we held that a baseball stadium’s owners/occupiers have a duty to “exercise[] ordinary care not to increase the inherent risk of being hit by a projectile leaving the field [of play],” which is symmetrically balanced against the spectators’ duty to exercise care to protect themselves from the same risk. Id. ¶ 41. The stadium owners’/occupiers’ duty of ordinary care remained undisturbed for other premises liability claims. Id.

{7} By contrast, in Baldonaldo v. El Paso Natural Gas Co., 2008-NMSC-005, ¶ 2, 143 N.M. 288, 176 P.3d 277, we adopted a policy-based approach to modify the firefighter’s rule first recognized in Moreno v. Marrs, 1984-NMCA-077, ¶¶ 20-21, 102 N.M. 373, 695 P.2d 1322, which precluded firefighters from recovering for injuries sustained while fighting a fire, except in very limited circumstances. In Baldonado, the firefighters asked us to abolish the firefighter’s rule entirely because it was outdated, “as evidenced by the several jurisdictions that [had] abolished the rule.” 2008-NMSC-005, ¶ 8. We declined to abolish the firefighter’s rule, but held that policy considerations — the need to encourage the public to request rescue from firefighters while discouraging the public from creating the need for rescue through reckless or intentional acts — warranted a modification of the existing rule. Id. ¶¶ 15-18, 21. We expanded firefighters’ right to pursue litigation, but only if the defendant was alleged to have acted recklessly or intentionally. Id. ¶ 18.

{8} Restatement (Third) of Torts itself cites two New Mexico cases to illustrate the difference between a policy-driven and a foreseeability-driven approach to a duty analysis. The first case, Chavez v. Desert Eagle Distributing Co., 2007-NMCA-018, 141 N.M. 116, 151 P.3d 77, is an example of a duty analysis inconsistent with the Restatement approach. Restatement (Third) of Torts, supra, § 7 cmt. j at 101-02 (reporter’s note to cmt. j). The second case, Gabaldon v. Erisa Mortgage Co., 1997-NMCA-120, 124 N.M. 296, 949 P.2d 1193, affirmed in part, reversed in part on other grounds, 1999-NMSC-039, ¶ 39, 128 N.M. 84, 990 P.2d 197, is cited as representative of the approach recommended by the Restatement. Restatement (Third) of Torts, supra, § 7 cmt. j at 102 (reporter’s note to cmt. j).

*55{9} InDesert Eagle, the question was whether a distributor who sold alcohol to a casino owed a duty to plaintiffs injured by a drunk driver who was served alcohol by the casino. 2007-NMCA-018, ¶ 1. The Court of Appeals held that the distributor did not owe a duty to the plaintiffs, discussing at length why it was not foreseeable to the distributor that the casino would serve alcohol to an intoxicated patron. Id. ¶¶ 17-24. The foreseeability-driven analysis is what drew criticism in the Restatement. Curiously, the Court of Appeals stated that had the plaintiffs’ alleged facts indicating the distributor knew that the casino would serve alcohol in violation of the law, it would have been easier to find foreseeability. Id. ¶ 23. This statement by the Court of Appeals illustrates how fluid the foreseeability analysis can be depending on changing fact patterns — a reason for courts not to assess foreseeability when considering the existence of a duty. Foreseeability considerations should not be used by a judge to determine the scope of duty, because not even the most experienced judge is capable of anticipating all possible facts that might affect future foreseeability determinations in similar cases.

{10} However, the Desert Eagle court articulated a much stronger policy reason why the distributor did not have a duty — the “legislature wanted to limit liability for alcohol-related injuries and deaths resulting from the sale or service of alcohol to those who actually exercised some degree of control over the service or consumption of alcohol.” 2007-NMCA-018, ¶ 31. Had the Desert Eagle court limited its analysis to the policy consideration, its approach would have been consistent with the Restatement.

{11} In Gabaldon, the Court of Appeals considered whether to recognize a new duty for non-possessory landlords. The question regarding duty was whether the lessor of a wave pool park had a legal duty to exercise ordinary care in selecting the tenant of the park. 1997-NMCA-120417. The Gabaldon court stated “[wjhere the discussion of duty involves recognition of a new cause of action, or as here, extension of a recognized theory to a new setting, the issue is better framed as a question of policy.” Id. ¶ 21. The Court of Appeals articulated policy reasons to support its holding that when:

the property is designed, intended and required to be used for a particular purpose, and the use has highly dangerous potentialities involving a substantial risk to the general public, and such danger or risk to the public is such that it may be foreseen by the lessor, the lessor owes a duty of reasonable care in selecting and entrusting such property to a lessee.

Id. ¶ 46 (internal quotation marks and citation omitted). The Court of Appeals left the foreseeability considerations for the jury. Id. ¶¶ 48-49 (finding that the lessor’s knowledge that the lessee did not have experience in the operation of a wave pool created genuine issues of material fact). The policy-driven approach employed by the Gabaldon court was cited with approval in Restatement (Third) of Torts, supra, § 7 comment j at 102 (reporter’s note to comment j).

{12} In the Del Sol cases, the Court of Appeals exempted owners/occupiers of shopping centers from the duty of ordinary care to protect invitees within its buildings from vehicles that departed the confines of designated parking areas. Del Sol, 2013-NMCA-020, ¶ 29. To arrive at its no-duty determination, the Court of Appeals *56considered (1) the nature of the activity, (2) the parties’ relationship to the activity, and (3) public policy. Id. ¶ 14. Regarding the nature of the activity and the parties’ relationship to the activity, the Court was persuaded by statistical evidence that there was a “sheer improbability and lack of inherent danger” of vehicle-pedestrian accidents within the related businesses. Id. ¶ 16. The flaw in the analysis is that it is a foreseeability-driven analysis, as evidenced by the authorities on which the Court of Appeals relied. See, e.g., Eckerd-Walton, Inc. v. Adams, 190 S.E.2d 490, 492 (Ga. Ct. App. 1972) (finding that a merchant could not reasonably anticipate that a negligent motorist would attempt to drive through a store); Mack v. McGrath, 150 N.W.2d 681, 686 (Minn. 1967) (concluding that liability cannot be predicated on the remote possibility that a vehicle would jump a curb and expose tenants to injury).

{13} The cases relied upon by the Court of Appeals could be read to invoke the concept of remoteness as articulated by Justice Ransom’s dissent in Calkins v. Cox Estates, 1990-NMSC-044, ¶¶ 23-25, 110 N.M. 59, 792 P.2d 36, and his special concurrence in Solon v. WEK Drilling Co., 1992-NMSC-023, ¶ 21, 113 N.M. 566, 829 P.2d 645. Unfortunately, remoteness also tends to invite a discussion of the particular facts of a case, despite Justice Ransom’s admonition that “[r]emoteness, however, is not a fact. It is a policy.” Calkins, 1990-NMSC-044, ¶ 23 (Ransom, J., dissenting). Justice Ransom may have seen remoteness solely as a policy determination and not a factual one. However, remoteness often leads toward a discussion of the facts in a particular case; insofar as it does so, it is not a discussion of policy. Since remoteness invites a discussion of particularized facts, we do not approve of using remoteness as the basis for a policy determination. A determination of no duty based upon the foreseeability, improbability, or remote nature of the risk is inconsistent with the Restatement approach, which provides that only “[i]n exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.” Restatement (Third) of Torts, supra, § 7(b).

{14} In New Mexico, juries are instructed to consider the foreseeability of risk of injury from a third person in premises liability cases. UJI 13-1320 NMRA (“The [owner’sjfoccupant’s] duty to protect visitors arises from a foreseeable risk that a third person will injure a visitor and, as the risk of danger increases, the amount of care to be exercised by the [owner][occupant] also increases.”). The greater the probability for foreseeable injury to result from certain behavior and the greater the range of severity of injury, the more careful the defendant is required to be. In contrast, the defendant does not have to be as careful when the probability of injury is not as likely, which is relevant to the breach of duty questions usually reserved for the jury. The duty to exercise ordinary care does not only arise in situations where there is an inherent danger. See Saiz v. Belen Sch. Dist., 1992-NMSC-018, ¶ 20, 113 N.M. 387, 827 P.2d 102 (“Activities that are ‘inherently dangerous’ represent an intermediate category of hazardous activity between those that are nonhazardous (or only slightly so), in which harm is merely a foreseeable consequence of negligence, and activities that are ultrahazardous, in which the potential for harm cannot be eliminated by the *57highest degree of care.”), limitation ofholding on other grounds recognized by Gracia v. Bittner, 1995-NMCA-064, ¶ 18, 120 N.M. 191, 900 P.2d 351.

{15} The Court of Appeals also concluded that there was not anything about Del Sol and its adjacent parking lot that “justifies a broadened standard of care owed to visitors.” Del Sol, 2013-NMCA-020, ¶ 17. However, Plaintiffs are not seeking a broadened standard of care; they simply contend that Del Sol breached the duty of ordinary care. Implicit in the Court of Appeals’ determination is that if there was something about the Del Sol parking lot — some significant difference in the fact pattern — the result may have been different. This also suggests a foreseeability-driven analysis. Once a court begins to rely on factual details in deciding whether to modify the duty of ordinary care or exempt a defendant from that duty, the court is really determining that there has been no breach of duty. Similarly, a court’s concern that the plaintiffs are seeking a broader standard of care is a concern about whether the plaintiffs expect too much of the defendants — something more than what is reasonable — which is relevant to the issue of breach of duty, not whether a duty is owed, and breach of duty questions are usually reserved for the jury.

{16} Regarding public policy considerations, the Court of Appeals began its analysis by stating that it would apply public policy as the primary barometer in ascertaining the “scope of ordinary care” owed by Defendants to Plaintiffs. Id. ¶ 18. As a preliminary matter, we note that Restatement (Third) of Torts, supra, § 7 comment j is concerned with the scope of duty, and not with the scope of ordinary care. See Edward C., 2010-NMSC-043, ¶¶ 14, 18. This distinction

is more than semantic, because to be concerned about the scope of ordinary care is to be concerned about whether a defendant’s conduct was reasonable — a breach of duty analysis. Restatement (Third) of Torts, supra, § 7 cmt. i (discussing the mistake that courts sometimes make when they “inaptly express” a determination that there was no breach of duty as a matter of law in terms of no duty). On the other hand, concerns about the scope of duty require a judge to articulate policy considerations when modifying the duty of ordinary care or exempting a class of defendants from the duty of ordinary care in a class of cases.

{17} TheCourtofAppeals’ specific policy considerations centered around the lack of any:

“laws, codes or ordinances promulgated by the legislature, nor any governing body, that mandate the placement of barriers sufficient to prevent vehicles that leave the designated roadway from crashing through businesses in a strip mall.” Similarly, nothing in the record presented by any plaintiff indicates that Defendants’ parking lot was not in full compliance with applicable state and local building codes.

Del Sol, 2013-NMCA-020, ¶ 18. Plaintiffs did not plead a theory of negligence per se — that Defendants violated a mandatory law or ordinance. Instead, Plaintiffs’ complaint is based solely on a claim that Defendants breached a duty of ordinary care. Full compliance with codes, laws, or ordinances that are silent with respect to the relevant issue — the need for protective devices to minimize risk from vehicle-building collisions — cannot dictate whether *58the duty of ordinary care should be modified. The only conclusion that can be drawn from such silence is that the legislative branches of local or state government have simply not addressed the issue. Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 14, 134 N.M. 43, 73 P.3d 181 (holding that silence only means that the Legislature has not spoken). Codes and regulations are minimum standards. Santa Fe, N.M. Code 1988 ch. 7-1.1(A)(4) (as amended through January 8, 2014) (adopting the 2009 International Building Code, by and through the 2009 New Mexico Commercial Building Code found at NMAC 14.7.2); see, e.g., 14.7.2.6 NMAC (“The purpose of this rule is to establish minimum standards for the general construction of commercial buildings in New Mexico.”). We have also previously rejected the notion that compliance with codes and regulations is conclusive evidence that someone has exercised ordinary care. Brooks v. Beech Aircraft Corp., 1995-NMSC-043, ¶ 38, 120 N.M. 372, 902 P.2d 54. Juries are instructed that:

What is customarily done by those engaged in the supplier’s business is evidence of ordinary care. However, what ought to be done is fixed by a standard of ordinary care, whether it is usually complied with or not.

Compliance with [industry [customs] [standards] [codes] [rules__[or] [governmental [rules] [standards] [codes___is evidence of ordinary care, but it is not conclusive.

UJI 13-1405 NMRA. Instead, these are considerations that go to the issue of the defendant’s reasonableness.

{18} The Court of Appeals also rejected two categories of evidence tendered by P lain tiffs to pro ve that D efendants failed to act reasonably in order to conclude that Defendants were exempt from the duty of ordinary care. Del Sol, 2013-NMCA-020, ¶¶ 19-20. First, the Court rejected the affidavit of Plaintiffs’ safety expert, which was supported by academic publications in safety engineering, that identified hazards on Defendants’ property that contributed to the errant vehicle crashing into the building and methods to minimize the hazards. Id. Second, the Court did not find persuasive several photographs of other local businesses that have installed safety features similar to those identified by Plaintiffs’ safety engineer. Id. ¶ 19. The Court of Appeals was not persuaded that the proffered evidence “legally establishes a norm of professional safety giving rise to an expanded duty to protect.” Id. ¶ 20. The Court also expressed the opinion that more safety precautions than those recommended by the safety engineer would be necessary to “have definitively prevented a runaway vehicle from crashing through Del Sol’s storefronts” and “have prevented the injuries and loss of life.” Id. In summary, the Court of Appeals did not believe that the proffered evidence “indicatefd] that Del Sol’s election not to employ such safety devices [fell] beneath professional norms of safety,” nor did the evidence “establish a newly applicable safety norm, a building code-derived regulation, or a public policy” that would support “the heightened standards of safety advanced by Plaintiffs.” Id. ¶¶ 20-21.

{19} Weighing the evidence in this matter is not a proper policy consideration for departing from the duty of ordinary care. In these cases, Plaintiffs tendered the affidavit and photographs of other local businesses that have installed protective devices as evidence *59of what type of reasonable precautions should be taken and have been taken to avoid vehicle-building crashes. If a jury is persuaded that Plaintiffs are asking too much of Defendants, the jury will decline to hold Defendants liable, not because no duty of ordinary care was owed, but because even having the duty of ordinary care, Defendants either acted reasonably under the circumstances or their breach of duty did not legally cause the injuries and deaths at Concentra. Courts should not engage in weighing evidence to determine whether a duty of care exists or should be expanded or contracted — weighing evidence is the providence of the jury; instead, courts should focus on policy considerations when determining the scope or existence of a duty of care.

{20} We also reject the notion that requiring owners/occupiers of buildings and land to exercise ordinary care makes them “absolute insurers of patron safety” from:

remote mechanical and human fallibility ... forcing businesses into one of three undesirable alternatives: (1) significantly revising] the physical and aesthetic layout of buildings and parking lots at substantial expense, (2) retaining] the status quo and risking] the enormous cost of catastrophic liability, or (3) closing] down the business premises entirely.

Id. ¶ 27. First and foremost, the notion ignores our comparative fault system and the weight a jury will give to foreseeability considerations. Second, the presumptive undesirable alternatives identified by the Court of Appeals do not appear to be supported by any evidence. Id. At a minimum, the affidavit of Plaintiffs’ safety engineer and the photos of other businesses in the vicinity, which are apparently still in business, that have safety features the expert opines would be reasonable to minimize the danger of vehicle-building crashes, create a genuine issue of material fact. Id. ¶¶ 20-21.

{21} The Court of Appeals also concluded that Del Sol could not have “anticipated, prevented, or even reacted to” the runaway truck, and the Court therefore could “discern no basis on the facts of these cases to legally extend a ‘duty to protect’ visitors from runaway vehicles into the responsibility of ordinary care applicable to Defendants.” Id. ¶ 24. To say that Del Sol could not have “anticipated” is to say that the event was not foreseeable, an approach the Court of Appeals sought to avoid, and which we reject in determining the existence of a duty. To say that Del Sol could not have “prevented, or even reacted to” a runaway truck has no bearing on whether a duty exists; rather, it questions whether Del Sol acted reasonably and did not breach the duty of ordinary care.

{22} In essence, the Court of Appeals’ analysis is focused predominantly on foreseeability considerations and the reasonableness of Defendants’ conduct. Foreseeability determinations are reserved for a jury because such determinations require the jury’s common sense, common experience, and its consideration of community behavioral norms. The multiple perspectives, shared and diverse experiences of a jury inform its decision-making. As stated by the United States Supreme Court over one hundred years ago, “[i]t is assumed that twelve [people] know more of the common affairs of life than does one [person], that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge.” Sioux City *60 & Pac. R.R. v. Stout, 84 U.S. (1 Wall.) 657, 664 (1873). This assumption is reflected in the Seventh Amendment of the United States Constitution and Article II, Sections 12 and 14 of the New Mexico Constitution, which are the only provisions in our constitutions that command citizen participation in our democracy — service on a jury, whether it is a grand jury, criminal or civil — for the benefit of every other citizen. N.M. Const. art. II, §§ 12 & 14; NMSA 1978, § 38-5-1 (1969, as amended through 2006). New Mexico state courts take this duty seriously and have cautiously guarded the right to jury trial in civil cases by erring on the side of allowing factual issues to be decided by juries. Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 9, 148 N.M. 713, 242 P.3d 280.

{23} As an example of a court that correctly resisted the effort to conflate a breach-of-duty analysis with the duty analysis in a vehicle-building collision case, Restatement (Third) of Torts, supra, § 7 comment i cites Marshall v. Burger King Corp., 856 N.E.2d 1048 (Ill. 2006). Although we deem the foreseeability discussion of the Marshall majority unnecessary, id. at 1060, we agree with the ultimate conclusion that an owner/occupier owes a duty of ordinary care in vehicle-building collision cases, id. at 1059-60.

{24} Courts are not powerless to dismiss cases as a matter of law, despite our holding that a foreseeability-driven duty analysis is inappropriate. A court may still decide whether a defendant did or did not breach the duty of ordinary care as a matter of law, or that the breach of duty did not legally cause the damages alleged in the case. However, these determinations are materially different than a no-duty or modified-duty analysis. The court must determine that no reasonable jury would find that the defendant breached the duty of ordinary care or that the breach legally caused the plaintiffs damages. Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 26, 127 N.M. 729, 987 P.2d 386 (“[A] directed verdict is appropriate only when there are no true issues of fact to be presented to a jury. A trial court should not grant a motion for directed verdict unless it is clear that the facts and inferences are so strongly and overwhelmingly in favor of the moving party that the judge believes that reasonable people could not arrive at a contrary result.” (alteration added) (internal quotation marks and citations omitted)), overruled on other grounds by Herrera, 2003-NMSC-018, ¶ 23 n.3. This determination requires judges to abandon their own personal thoughts regarding the merits of cases and to imagine the thoughts of twelve adult citizens from a variety of socioeconomic backgrounds — such as scientists, college faculty, laborers, uneducated, rich, poor, persons with different political persuasions — and what that diverse group might find regarding the merits of a case. The judge can enter judgment as a matter of law only if the judge concludes that no reasonable jury could decide the breach of duty or legal cause questions except one way. Because neither the Court of Appeals nor the district court judges engaged in this analysis, we reverse and remand to the district courts for proceedings consistent with this opinion.

CONCLUSION

{25} Foreseeability is not a question for courts to consider when determining the existence of a duty, or whether to limit or eliminate an existing duty in a particular class of cases. Instead, courts must articulate specific policy reasons, unrelated to foreseeability considerations, when deciding *61whether a defendant does or does not have a duty or that an existing duty should be limited.

{26} IT IS SO ORDERED.

EDWARD L. CHÁVEZ, Justice

WE CONCUR:

PETRA JIMENEZ MAES, Senior Justice

RICHARD C. BOSSON, Justice

MICHAEL D. BUSTAMANTE, Judge Sitting by designation

BARBARA J. VIGIL, Chief Justice and CHARLES W. DANIELS, Justice Recused